Smuggling Or Possession Of Liquor Does Not Fall In Category Of Activities U/s 8(3)(b) J&K Public Safety Act That Are Prejudicial To Maintenance Of Public Order: Jammu & Kashmir & Ladakh HC
The Jammu & Kashmir and Ladakh High Court held that smuggling and possession of liquor does not fall within the category of activities defined under Section 8(3)(b) of the Jammu and Kashmir Public Safety Act, 1978 (PSA) that can be considered prejudicial to the maintenance of the public order.
The Bench quashed the detention order issued against an alleged notorious bootlegger (petitioner) under Section 8 (1) (a) of the PSA. The Court explained that the detention order was based on FIRs, some of which were dated as far back as 2005 and 2006, making them “stale” and could not have formed the basis for detaining the petitioner under the PSA.
A Single Bench of Justice Rajnesh Oswal observed, “Thus, Sections 8(3) (b) and 8(3)(c) of the PSA define the activities prejudicial to the maintenance of the public order and expression smuggling as used in Sections 8(1)(a) and 8 (1)(a-1) of the Act respectively. The smuggling of liquor or possession thereof, does not fall within the category of activities as defined in terms of Section 8(3)(b) of the Act considered prejudicial to the maintenance of the public order.”
Advocate Virender Dev Singh represented the petitioner, while Dy. AG Pawan Dev Singh appeared for the respondents.
The petitioner had challenged his detention order issued under the PSA on the grounds that he was already in the custody of police when the order was issued.
The Court stated that the FIRs registered against the petitioner under the Arms Act “could not have formed the basis for detaining the petitioner under the PSA, considering his activities in the FIRs mentioned above as prejudicial to the maintenance to the public order as the allegations in the said FIRs pertain to the year 2005-2006, which are stale in nature.”
“A perusal of Section 8 of the PSA reveals that the Government may detain a person, if it is satisfied that the activities of such person are prejudicial to either to security of the State or maintenance of the public order. Besides, the Government can also detain a person so as to prevent him from smuggling timber or liquor, or abetting the smuggling of timber or liquor or engaging in transporting or concealing or keeping smuggled timber or harbouring persons engaged in smuggling of timber or liquor or abetting the smuggling of timber or liquor,” the Court explained.
The Court clarified that the impugned detention order was purportedly issued “for maintenance of public order” and not to prevent the petitioner from smuggling the liquor. “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,” the Court clarified further.
Consequently, the Bench held, “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”
Accordingly, the High Court allowed the petition.
Cause Title: Pawan Singh alias Panna v. Union Territory of Jammu and Kashmir & Ors.