PSA detention order for involvement in FIRs quashed by HC

22/09/2022
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Srinagar, Sep 21: Justice Sanjeev Kumar of High Court of J&K & Ladakh at Srinagar has quashed the detention order of Khursheed Ahmed Bhat who was detained vide order dated: 19-5-2022 passed by Distt. Magistrate, Pulwama. The relevant extract reads:-
"6. The impugned order of detention has been challenged by the Detenue on several grounds. Learned counsel for the Detenue, however, laid much emphasis on the following grounds: (I) That the detaining authority has relied upon the allegations contained in FIR No.123/2022 registered under Section 420, 120B IPC for indulging in cheating which, if found proved against the detenue, would constitute a criminal act and said criminal act can, by no means, be treated as an act to harm to public order; (II) That the material relied upon by the detaining authority to derive subjective satisfaction with regard to necessity of putting the detenue under preventive detention was not supplied to the detenue in the language, which he could understand or read, thereby incapacitating him from making an effective 4representation to the detaining authority/government against his detention; (III) That the grounds of detention are vague, irrelevant and nonexistent and, therefore, on the basis thereof, no prudent and reasonable man can make an effective and purposeful representation."
"8. From perusal of grounds of detention, it clearly transpires that the petitioner has been put under preventive detention primarily for his involvement in FIR No.123/2022. The allegations contained in the aforesaid FIR, which is made basis of the detention order, even if taken to be true on their face value, do not constitute an act which has the potentiality of disturbing the public order. The term "law and order" and "Public order" look deceptively similar but both have different connotations. While former is a continual ongoing term, the latter is more temporal in nature. In the case of public order, the community or the public at large is affected by a particular action whereas the act or acts that affect only few individuals may be a case of law and order. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects "law and order? but before it can be said to affect public order, it must affect the community or public at large. The nature of criminal act, the manner in which it is committed and its impact are some of the factors that determine whether a particular act would fall within the realm of "public order" or " law and order". What is alleged in the FIR, which is sole basis of putting the detenue under preventive detention, clearly falls within the ambit of term "Law and Order". Unless the criminal act attributed to the detenue has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basis of preventive detention."
"12. This case is fully covered by the Banka Sneha Sheela (supra). The allegations in the FIR registered against the detenue may be a problem of law and order but would not certainly come within the purview of the term "public order?. There is nothing mentioned in the grounds of detention to demonstrate that the activities of the detenue, on the basis of which the FIR for cheating and fraud came to be registered against him, had an impact of disturbing even the tempo of life of the community or had the effect of affecting the public at large. The offences with which the detenue has been charged in the FIR are substantive offences and the ordinary law of the land is sufficient to deal with the detenue, if he is ultimately found guilty of the allegations leveled against him in the FIR. The apprehension of the detaining authority that the detenue was likely to get bail and in that event, his remaining at large would be detrimental to the maintenance of peace and public order, cannot be basis of putting the detenue under preventive detention. The detaining authority as also the State machinery is well within its rights to oppose the bail and, if granted, take remedial measures by way of approaching the higher forum. The simplicitor case of cheating and fraud, without having wider ramifications, cannot be made the basis of issuing the detention order in the name of maintaining the public order."
"13. For the foregoing reasons, this petition is allowed. The impugned order of detention is set aside and the detenue is directed to be released from the preventive detention forthwith, unless, of course, not involved in any other case."

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