When Statute Provides For Detention Under Specific Contingency, Detention Under Different Contingency Cannot Be Made Unless Conditions Overlap: J&K High Court

In quashing a preventive detention order against an alleged habitual liquor smuggler under Section 8 (1) (a) of Jammu and Kashmir Public Safety Act, 1978 Justice Rajesh Oswal observed,

“The petitioner could have been detained only under Section 8 (1)(a-1) of the PSA and not under Section 8(1)(a) of the PSA, as both the clauses (a) and (a-1) operate in different fields, the former operates in cases of activities prejudicial to the maintenance of public order and the latter in case of smuggling liquor or timber”.

Petitioner Pawan Singh was detained by the Jammu District Magistrate under Section 8(1)(a) of the PSA for allegedly being a habitual bootlegger and a threat to public order. Singh challenged the detention order arguing that the detaining authority had not followed proper procedure and that his activities did not warrant detention under the PSA.

The petitioner's counsel argued that the allegations against Singh pertained to Excise Act violations, and these activities could not be construed as prejudicial to public order as envisioned under Section 8(1)(a) of the PSA. The order suffered from non-application of mind and was issued arbitrarily, he argued

In response, the respondents had argued that Singh was a notorious bootlegger and habitual criminal with seven FIRs registered against him. They asserted that all statutory and constitutional safeguards were followed in issuing and executing the detention order.

Justice Oswal meticulously examined the provisions of the PSA, particularly Section 8 which empowers authorities to detain individuals under specific circumstances and noted that Section 8(1)(a) allows for detainment to preserve public order, while Section 8(1)(a-1) specifically addresses the smuggling of liquor or timber.

In a significant observation, the court clarified, "Once the Statute provides for detention of the person under specific contingency, he cannot be detained under other contingency envisaged by the statute, unless both overlap or co-exist together."

Concluding that the detaining authority had misinterpreted the law Justice Oswal observed that Singh's alleged liquor trade, while a violation, did not meet the threshold for detainment under Section 8(1)(a) for maintaining public order.

“ .. the allegations against the petitioner are in respect of indulging in the illicit trade of liquor for getting undue profit/benefit and by no stretch of imagination, such activities of the petitioner can be termed as prejudicial to the maintenance of „public order‟. Mere issuance of order under Section 8(1)(a) of the PSA by the respondent No. 2 for maintenance of public order is a classic example of non-application of mind on the part of the detaining authority”, the bench remarked.

Observing that the District Magistrate had failed to independently assess the situation and rubber-stamped the recommendation for detention the High Court quashed the detention order, directing Singh's immediate release from custody.

Case Title: Pawan Singh Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 150

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