The Jammu and Kashmir High Court has quashed the detention order passed against Parvaiz Ahmad Kuchay by the Shopian District Magistrate. The petition moved by Kuchay’s brother Waseem Ahmad Kuchay challenged the detention order. The petitioner submitted that the order was passed without the application of mind by the detaining authority, because the order of detention passed against the detenu from acting him in any manner prejudicial to the security of the State/Country, whereas the grounds of detention contented that the acts of detenu are highly prejudicial to the maintenance of public order.
It was submitted by the counsel appearing for petitioner that the detention order was passed on both expression, viz. “acting in any manner prejudicial to the security of the State” and “acting in any manner prejudicial to the maintenance of public order”, which reflects non-application of mind on the part of the detaining authority.”
A single-judge bench of Justice Tashi Rabstan said, “The expression “law and order”, “public order”and “security of the State” are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of peace does not lead to public disorder.”
“For example, when two drunkards quarrel and fight, there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing the public order,”-said the Court citing an example.
“Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other, the most serious and cataclysmic happenings,” said the Court.
The Court referred to the Judgment of the Supreme Court in case of G.M. Shah Vs. State of J&K, 1980 (AIR) SC 494, wherein it was held that the expressions “law and order”, “public order” and “security of the State” are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State”.
The Court noted, “In the present case, intriguingly, detaining authority has made use of both expressions “prejudicial to security of the State” as well as “prejudicial to maintenance of public order”. However, the petitioner has specifically averred in the ground-V taken in the petition that the detaining authority on the one hand justifies that it is passing the detention order because it apprehends the actions of detenu will be prejudicial to maintenance of public order but then goes on pass the detention order for the purpose of security of the State. This the detention order passed for twin activity and depicts non-application of mind on part of detaining authority. Respondents have not replied to ground-V in their objections/counter.”
The Court held, “Thus, the reliance on both the bases in the grounds of detention furnished to detenu is to be held illegal one and as a corollary thereof impugned order is vitiated”.
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The Court quashed the detention order passed by the District Magistrate, Shopian and directed to release the detenu forthwith, provided he is not required in any other case.