Jammu & Kashmir High Court
Gulzar Ahmad Bhat vs State Of J&K; And Others on 3 August, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
...
HCP No.13/2017 MP no.01/2017 Date of order: 03 /08/2017 Gulzar Ahmad Bhat Versus State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For the petitioner(s): Mr P. N. Raina, Senior Advocate with Mr J. A. Hamal, Advocate For the respondent(s): Mr W.S.Nargal, Senior Addl. Advocate General Whether to be reported in Digest/Journal? Yes/No
1. Impugned in this petition is Order No.DMB/PSA/2017/09 dated 8th March 2017, of District Magistrate, Budgam - respondent No.2 herein, whereby one Gulzar Ahmad Bhat alias Gulzar Peer son of Late Gh. Qadir Bhat resident of Shamasabad, Tehsil Khansahib, District Budgam (for brevity "detenu") has been placed under preventive detention to prevent detenu from acting in any manner prejudicial to the maintenance of security of the State.
2. The case set up in the petition is that respondent No.2, while slapping preventive detention on detenu, has not adhered to Constitutional and Statutory safeguards available to detenu under the Constitution of India and J&K Public Safety Act, 1978.
It is contended that petitioner was implicated in a false case FIR no.40/2013 P/S Khansahib as he was acquitted of the charge by a judgement dated 12.02.2015, against which appeal was directed, which too was dismissed vide judgement dated HCP no.63/2017 Page 1 of 15 2 23.02.2017. It is averred that while the Division Bench judgement was to be served on concerned jail authorities, respondents, in order to create a ground for not restoring petitioner's liberty, resorted to getting his custody transferred from Central Jail, under the order of learned Judicial Magistrate, Budgam dated 06.03.2017. Detenu's arrest is stated to have been made in FIR no.15/2015 P/S Khan Sahib and thereafter impugned detention order slapped on him. To cement his arguments, learned senior counsel places reliance on Powanammal v. State of T.N. and anr 1999 AIR (SC) 618; Shahmali v. State & ors 2010(1) SLJ 56; Dilawar Magray v. State of J&K & ors 2010(2) SLJ 696; and Nissar Ahmad Bhat v. State & ors; Mohd Ashraf Khan v. State & ors 2010(3) JKJ [HC] 705; Mohd Amin Beigh v. State 2012 (3) JKJ
3. Respondents, in their counter, insist that detenu was not falsely implicated in case FIR no.40/2013 under Section 376 RPC of Police Station Khansahib and that it was on the basis of a written complaint filed by four victim girls, who were subjected to sexual exploitation by detenu that the said case was registered against him; and after conducting thorough and fair investigation, it came to surface that detenue with assistance of some other accused had committed offences punishable under Section 376, 109 RPC. Insofar as acquittal of detenu, respondents maintain that acquittal of detenu was on the basis of technical grounds like delay in lodging FIR, some loopholes/ flaws in investigation. Respondents aver that detenu is also involved in case FIR HCP no.13/2017 Page 2 of 15 3 no.15/2015 under Section 307, 348, 336, 332, 427 RPC of Police Station Khansahib and that pursuant to order dated 6th March 2017, detenu's custody was changed from FIR no.40/2013 to 15/2015. In order to execute an order passed by Executive Magistrate under Section 107 Cr.P.C. a police party of police station Khansahib is said to have approached detenu, but he along with his supporters, with an intention to kill, pelted stones upon police party, due to which some police personnel were injured and some damage was also caused to government vehicles and for the said incident FIR no.15/2015 was registered against him and his supporters. Detenu is said to have filed application for grant of bail under Section 497-A Cr.P.C., which was later on withdrawn by him and thereafter one more application for bail filed by him, was dismissed. However, detenu made another bid and his bail application was allowed vide order dated 17th March 2017 by learned Principal Sessions Judge, Budgam. Learned counsel for respondents in support of his submissions, has placed reliance on Debu Mahato v. State of W.B. (1974) 4 SCC 135; Anil Dely v. State of W.B. (1974) 4 SCC 514 Anil Dely v. State of W.B. (1974) 4 SCC 514; Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310; and Gautam Jain vs Union of India anr AIR 2017 SC 230.
4. I have heard learned counsel for parties. I have gone through the pleadings as also record made available by learned counsel for respondents. I have considered the matter HCP no.13/2017 Page 3 of 15 4
5. Right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, (1978 AIR SC 597), is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing HCP no.13/2017 Page 4 of 15 5 general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) Constitution of India therefore leaves scope for enactment of preventive detention law.
6. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha v. 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.
7. It is long back that an eminent thinker and author, Sophocles, had to say: "Law can never be enforced unless fear supports them." This statement was made centuries back, but it has its relevance, in a way, with enormous vigour, in today's society. HCP no.13/2017 Page 5 of 15 6 Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending on the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. Acts or activities of individual or a group of individuals, prejudicial to the security of the State, have magnitude of across-the-board disfigurement of societies. No court should tune out such activities, being won over by passion of mercy. It is the obligation of the court to constantly remind itself the right of society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out. HCP no.13/2017 Page 6 of 15 7
8. Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee safeguard to detenu to be informed, as soon as may be, of grounds on which order of detention is made, which led to the subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenu is to be furnished with sufficient particulars to enable him to make a representation, which on being considered, may obtain relief to him. Detention record, made available by learned counsel for respondents, reveals that detention order was made on proper application of mind, to the facts of the case and detenu was delivered at the time of execution of detention order, the material and grounds of detention and also informed that he had a right to represent against his preventive detention. Perusal of overleaf of detention order depicts its execution. It is mentioned therein that in compliance to District Magistrate, Budgam's detention order, ASI Ghulam Mohd. No.413/CID of P/S Khansahib, took the custody of detenu. It further reveals that PSA detention order has been executed on 10th March 2017 and the contents of PSA warrant, grounds of detention, copy of FIR no.15/2015, interrogation report, statement of witnesses were read over and explained to detenu in Kashmir and Urdu, languages, which detenue understood fully in token of which the signatures of detenu had been obtained overleaf detention order. It also divulges that detenu was informed that he can make representation to the government and detaining authority. The HCP no.13/2017 Page 7 of 15 8 grounds of detention are definite, proximate and free from any ambiguity. The detenu has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made the authority to exercise its powers under section 8, J&K Public Safety Act 1978 and record subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State.
9. Learned senior counsel for petitioner has stated that the allegations/grounds of detention are vague and the instances and cases mentioned in grounds of detention have no nexus with detenu and have been fabricated by police in order to justify its illegal action of detaining detenu. It may not be out of place to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. Fleeting look of grounds of detention reveal that as a consequence of lodgement of FIR no.40/2013 under Section 376, detenu was taken into custody and charge sheet was produced before competent court. Detenue was acquitted, but, on technical grounds. It is made mention of in grounds of detention that people of the State particularly that of the Valley, have all along maintained strong moral behaviour and the people living in the Valley are hypersensitive and react sharply to such activities that are immoral in nature and given the sensitivity of HCP no.13/2017 Page 8 of 15 9 the matter if the detenu is released from custody there is every likelihood that there will be a breach of public order in District Budgam, which can result in a serious law and order problem. Detaining authority has pointed out in grounds of detention that when detenu was released from custody in connection with case FIR no.40/2013, the victims protested against his release and it was not only victims but public at large that protested against said release, besides a massive protest was staged in District Budgam and as such there was a breach of public order. It is also indicated in grounds of detention that considering public resentment against detenu's release and apprehending breach of public peace and order, Executive Magistrate, Khansahib, issued an order under Section 107 Cr.P.C. against detenue but at the time of execution of order, detenu along with his accomplices resorted to violence and once again a breach of public peace and order was observed in the area, which resulted in lodgement of FIR no.15/2015 against detenu and his accomplices. Thus, there was material before detaining authority to come to conclusion and hence, it cannot be said that subjective satisfaction of detaining authority was wrongly arrived at or the grounds of detention are self-contradictory or vague. The role of the detenu has been specifically described. Even otherwise it is settled law that this Court in proceedings under Article 226 of the Constitution is limited to scrutinizing whether the detention order has been passed on the material placed before it, it cannot go further and examine the sufficiency HCP no.13/2017 Page 9 of 15 10 of the material. This Court does not sit in appeal over the decision of detaining authority. This Court cannot substitute its own opinion over that of detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent the detenu from engaging in activities prejudicial to the security of the State or maintenance of public order. In this regard I am fortified by decisions rendered by the Supreme Court in State of Gujarat vs. Adam Kasam Bhaya (1981) 4 SCC 216; State of Punjab vs. Sukhpal Singh (1990) 1 SCC 35; Union of India vs. Arvind Shergill (2000) 7 SCC 601; Pebam Ningol Mikoi Devi vs. State of Manipura, (2010) 9 SCC; and Subramanian vs. State of T.N. (2012) 4 SCC 699.
10. Learned senior counsel for petitioner also avers that detaining authority has mentioned a single FIR in the grounds of detention for slapping preventive detention upon detenu inasmuch as in another FIR, detenue has been acquitted and that could not have been made use of for slapping detention on detenu. It may not be out of place to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It HCP no.13/2017 Page 10 of 15 11 does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Thus, the submission of learned senior counsel that detaining authority should not make use of one of the FIRs, in which detenu has been acquitted, for passing detention order, is specious. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order. In this regard the Constitution Bench of the Supreme Court in Haradhan Saha's case (supra), while considering various facets concerning preventive detention, observed:
"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.HCP no.13/2017 Page 11 of 15 12
34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of W.B., Ashim Kumar Ray v. State of W.B.; Abdul Aziz v. District Magistrate, Burdwan and Debu Mahato v. State of W.B. correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of U.P., (1974) 4 SCC 573, which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances."
11. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, HCP no.13/2017 Page 12 of 15 13 must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127.
12. The Supreme Court in Debu Mahato v. State of W.B. case (supra), observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case "one act may suffice". That was a case of wagon-breaking and given the nature of the Act, it was held therein that "one act is sufficient". The same principle was reiterated in Anil Dely v. State of W.B. case (supra). It was a case of theft of railway signal material. Here too "one act was held to be sufficient". Similarly, in Israil SK v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri's case (supra), a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. 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 HCP no.13/2017 Page 13 of 15 14 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. Similarly, where the person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, as in the present case detenu has been apprehended with arms and ammunition, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity.
13. If one looks at the acts, the J&K Public Safety Act, 1978, is designed for, is to prevent, they are all these acts that are prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. HCP no.13/2017 Page 14 of 15 15 In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. Recently, same views and principles have been reiterated by the Supreme Court in Gautam Jain vs Union of India anr reported in AIR 2017 SC 230.
14. For the reasons discussed, the petition fails and is, accordingly, dismissed.
15. Detention record be returned to the learned counsel for respondents.
( Tashi Rabstan ) Judge Jammu 03 August 2017 Ajaz Ahmad I pronounce this judgement in terms of Rule 138 (3) of J&K High Court Rules, 1999.
( B. S. Walia ) Judge Jammu 03 August 2017 Ajaz Ahmad HCP no.13/2017 Page 15 of 15