'Even A Single Act Against Public Peace & Order Can Be Sufficient Ground For Detention': Jammu & Kashmir & Ladakh High Court

Justice Tashi Rabstan also held that a single act was sufficient enough for detention if it's shown that such single act warrants an interference that he will repeat his activity in the future too. Relying on various apex court judgments like Debu Mahato v. State of W.B (1974) and Saraswathi Seshagiri v. State of Kerala & Anr. (1982), the court observed that:

"In short, the principle appears to be this: "Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity." The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court."

In Saraswathi Sheshagiri's case, the accused was involved in exporting Indian Currency which warranted an inference from the state and detention order was passed to prevent such prejudicial activity in the future, the court observed.

In the instant case, the accused petitioner had nine FIRs registered against him in various police stations and has been previously booked under the Public Safety Act, 1978 in 2018.

"Therefore, it seems the petitioner is a hardcore criminal, has become a terror figure among the people of the area and the actions taken against him under the ordinary law from time to time have not been proved to be deterrent", the court noted while upholding the detention order of the District Magistrate.

The detenu approached the court by saying that frivolous FIRs have been foisted against him and the detention order laid bare the non-application of mind by District Magistrate. He also alleged that the detention order was passed without mentioning that he was already in custody related to another crime at that point of time.

However, the District Magistrate noted that the petitioner-detenu falls under the category of being a threat to the public order, peace and stability in the society and falls under the category of Section 8 of the Public Safety Act, the reason why his detention warrants were executed.

The court observed that the averment of the detenu that the order was passed without mentioning that he was already in custody is untrue. When the case came up before the High Court, dispelling the allegations of the detenue that the grounds of detention, status of FIRs and other material documents have not been disclosed or supplied to him, the court relied on the record produced by the magistrate and noted that the safeguards for detenue under Article 22(5) and Section 13 of Public Safety Act have been met.

"The record so produced reveals that the petitioner-detenu under his signatures received a total of 112 leaves including the copy of detention warrant, grounds of detention, notice of detention, copy of dossier and other related documents through executing officer PSI Amreek Singh, which were read over and explained to the detenu in Urdu language which he fully understood. The petitioner-detenu was also informed that he can make a representation to the Government as well as to the detaining authority against his detention order, if he so desires."

The court noted that the basis of detention is the subjective satisfaction of the executive about the reasonable probability of the likelihood of detenue to commit the prejudicial acts similar to his past acts.

"The Supreme Court in Haradhan Saha vs State of W.B. (1975) 3 SCC 198, points out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent."

Case Title: Babbar Khan v. Union Territory of J &K & Others

Case No: WP(Crl) 29/2021

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