Srinagar, Sept 21: Quashing a detention order under Public Safety Act (PSA) against Pulwama resident, the High Court of Jammu and Kashmir and Ladakh observed that offence of cheating and fraud, without having wider ramifications, cannot be made the basis for issuing a detention order in the name of maintaining public order.
Overturning the PSA of Khursheed Ahmad Bhat resident of Pulwama, who was booked under PSA issued by District Magistrate, Pulwama on May 19, this year, Justice Sanjeev Kumar directed the authorities to release the detenu immediately from the preventive detention, "unless, of course, not involved in any other case."
In terms of the order, the petitioner has been put under preventive detention "with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order."
The petitioner through counsel, N.A Ronga challenged the order on the ground that the order of detention was based on the allegations contained in an FIR registered under Section 420, 120B IPC against the detenu for indulging in cheating which, if found proved against the detenu, would constitute a criminal act.
"And said criminal act can, by no means, be treated as an act to harm to public order," it was contended.
Perusing the material on record, Justice Kumar noted that the allegations contained in the 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.
Interpreting the terms, “law and order” and “public order”, the court noted that the terms look deceptively similar but both have different connotations.
While the former is a continual ongoing term, the latter is more temporal in nature, the bench said.
In the case of public order, the court recorded that 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 court underscored.
The bench observed that 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 the sole basis of putting the detenu under preventive detention, clearly falls within the ambit of term law and order," Justice Kumar said.
The court recorded that unless the criminal act attributed to the detenu 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.
The bench noted that the allegations in the FIR registered against the detenu may be a problem of "law and order" but would not certainly come within the purview of the term "public order".
The court observed that there is nothing mentioned in the grounds of detention to demonstrate that the activities of the detenu, 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 detenu has been charged in the FIR are substantive offences and the ordinary law of the land is sufficient to deal with the detenu, if he is ultimately found guilty of the allegations leveled against him in the FIR," Justice Kumar said.
The court underscored that the apprehension of the detaining authority that the detenu 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 the basis of putting the detenu under preventive detention.
Allowing the plea, the bench said 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 simpliciter 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," the court said while setting aside the detention order.
Meanwhile, it was alleged in the police dossier that the detenu is an active member of the gang “TRATH GOLA” which is active in many districts of valley and is headed by Abdul Hamid Dar of Tujan Pulwama along with some other associates.
It alleged that the petitioner is an active member of the gang since 2012, which was dishonestly and fraudulently extorting money worth Crores of rupees from gullible people on the pretext of paying returns in double and triple under the “ TRATH GOLA” a scam.
The dossier further alleged that the detenu had lured the people into the trap and the amount collected was used in "illegal, illegitimate and illicit activities."