Mohammad Amin Beigh vs State Of J&K And on 1 February, 2013

[Cites 15, Cited by 4]

Jammu & Kashmir High Court

Mohammad Amin Beigh vs State Of J&K And on 1 February, 2013

1. Letters Patent Appeal on hand, is directed against the order of learned Single Judge dated 9.7.2012 in Habeas Corpus Petition No.15/2012 titled Mohammad Amin Beigh versus State of J&K and anr., whereby the writ court has dismissed the appellants petition for quashment of detention order No.DMS/PSA/53/2011 dated 26.12.2011 at preexecution stage.

2. District Magistrate, Srinagar on going through the communication No. Lgl / Det-2759/2011/ 5884-87 dated 15.11.2011 received from Senior Superintendent of Police, Srinagar along with 2 dossier and connected material/documents appended to the communication, recorded his subjective satisfaction concluding that the appellant was required to be placed under preventive detention so as to stop him from acting in any manner prejudicial to the maintenance of public order and accordingly vide his order No. DMS/PSA/53/2011 dated 26.12.2011, ordered appellants detention and lodgment in Kote Bhalwal Jail, Jammu.

3. The detention order could not be executed as the appellant avoided its execution and questioned it at pre execution stage, through medium of a Habeas Corpus Petition, being HCP No.15/2012.

4. The appellants case was that the detention order was not based on any valid ground; did not refer to any record on which it had its edifice and that the grounds of detention were vague, irrelevant and extraneous. The appellant insisted that case FIR No.40/2011 under Sections 376/511,451/506 RPC, Police Station Kralkhud, Srinagar was to be dealt with in accordance with ordinary law and would not justify his preventive detention. It was pleaded that the appellant had been let off on bail in the aforesaid criminal case and the right course for the 3 respondents was to seek cancellation of his bail and not fall back upon Section 8 of Jammu and Kashmir Public Safety Act, 1978 and order his preventive detention.

5. Learned Single Judge did not find any merit in the case projected and dismissed the petition vide his order dated 9.7.2012, impugned in the present appeal.

6. The memo of appeal, reiterates the grounds set out in the Habeas Corpus petition. The detention order is alleged to have been passed with oblique motive, in a mechanical manner, and to suffer from non application of mind. The detaining authority is said to have in the grounds of detention mentioned likelihood of the appellant being admitted to bail in case FIR No. 40/2011 under Sections 376/511,451/506 RPC as one of the grounds to pass the detention order unmindful of fact that the appellant was out on bail on the date the grounds of detention were formulated and the detention order passed. It is pleaded that a solitary incident, alleged against the appellant, should not have persuaded the detaining authority to presume that such acts would be repeated and detention order was the only way. Learned Single Judge, according to the 4 appellant, did not deal with all the grounds set out in the petition to question the detention order.

7. We have gone through the appeal and the record. We have heard learned counsel for the appellant and learned senior Additional Advocate General.

8. The right of personal liberty is the most precious right guaranteed under the Constitution. It has been held to be transcendental, in-alienable 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 has been 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 because of the criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case the prosecution fails to bring home his guilt. Where such person is convicted of the offence, he still has the satisfaction of having been given adequate opportunity to contest the charge and also adduce 5 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 having been held guilty of an offence and sentenced to imprisonment by a competent court. The 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 the general public to risk and cause colossal damage to life and property. It is, therefore, necessary to take preventive measures and prevent the person bent upon perpetrating mischief from translating his ideas into action. Article 22(5) Constitution of India therefore leaves scope for enactment of preventive detention law.

9. Supreme Court in Hardhan Saha v. State of W.B., (1975) 3 SCC 198, has succinctly pointed out difference between preventive and punitive detention in following words:

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 the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. 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 section 3 of the Act to prevent. The Conceptual framework of preventive detention has been reiterated in Khudiram Das v. State of W.B., (1975) 2 SCR 832, as under:

The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by 7 way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. In Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276, the Court observed:

It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so. 8

10. However, power to place a person under preventive detention cannot be open ended, absolute and unguided. The constitution therefore, guarantees important safeguards to the person detained so that the power is not misused and the preventive detention law conforms to the constitutional safeguards. It is to be pointed out that the authority clothed with power to order preventive detention, essentially exercises jurisdiction of suspicion. It is mere suspicious that apprehended activities of a person are likely to prejudice the security of the state or public order, that detaining authority feels prompted to order preventive detention. It is, therefore, necessary that the power available to the detaining authority under preventive detention law is exercised with due care and caution. The Supreme Court in Dr. Ram Krishan Bhardwaj versus State of Delhi and others, AIR 1953 SCC 318 held:

preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against an improper exercise of the power must be jealously watched and enforced by the Court. 9

11. The Courts as laid down in Francis Coralie Mullin versus W.C.Khambra, (1980) 2 SCC 275 (AIR 1980 SC 849) have to play a role of eternal vigilance as no freedom is higher than personal freedom and no duty higher than to maintain it un-impaired. The Superior Courts during last more than six decades have fiercely, unrelentingly and jealously guarded the right to personal liberty and come down heavily on even a feeble attempt to invade the right by placing a person under preventive detention in violation of constitutional and statutory safeguards guaranteed to a detenue. It is time and again impressed upon the detaining authority and the authority entrusted with execution of a detention order, to respect and adhere to fundamental safeguards available to a detenue i.e, to be immediately informed of the grounds of detention; to be conveyed that he has a right to represent against his detention and to be given an opportunity to represent in an effective and meaningful manner against his detention.

12. The question that arises for consideration in the present appeal is, whether the scope of judicial review at the pre-execution stage is as wide as, at 10 post-execution stage i.e., after the detention order is executed.

13. It is pertinent to point out that the court while exercising its power of judicial review at the instance of a detenue or any other person on his behalf does not examine the sufficiency of grounds of detention. The reason being, that the detention order is passed by the detaining authority on its subjective satisfaction, that a person is required to be placed under preventive detention, so as to prevent him from acting in any manner prejudicial to the security of the State or public order. The Court however is to examine whether the grounds of detention are clear and understandable, free from any vagueness, and ambiguity, were conveyed to the detenue with supporting material if any, with proper dispatch, the detenue informed that he has a right to represent against his preventive detention and allowed to make effective and meaningful use of such right.

14. In case the detention order is not executed and person against whom it is made not detained, the question of handing over copy of grounds of detention to him does not arise and there is no 11 occasion to inform him that he has a right to represent against his detention and thereafter allow him to make an effective and meaningful use of such right. The ambit and scope of judicial review at pre-execution stage would not be same as it would be in the event the detention is executed. However it is beyond dispute that the writ Court, as held in Additional Secretary Government of India versus Alka Subash Gadia, 1992 Suppl (1) SCC 496 and reiterated in Subash Popatlal Dave versus Union of India AIR 2012 SCC 3370, being, the ultimate assurance against illegal detention, the detenue has right to question the detention order even at pre execution stage.

15. The Supreme Court in Alka Subashs case (supra) while laying down that judicial review being a part of basic structure of constitution, the power of the High Court under Article 226 of the Constitution cannot be circumscribed in any way by any law including judgment of a court and that the detention order can be challenged at any stage, as the artificial distinction between pre decisional and post decisional challenge, is inconsistent with and alien to the wide powers conferred under Article 226 and 32 of the Constitution. The Supreme Court held 12 that self imposed limitations must be observed by courts, while exercising such jurisdiction. The limitations, it was held, are to be equally observed while exercising jurisdiction in preventive detention matters, having regard to the object for which the detention law is permitted by the Constitution to be enacted. The Court emphasizing the distinction between existence of wide powers, and the propriety and desirability of using them, identified following five circumstances in which Court may interfere with the detention order even at pre execution stage

(i) that the impugned order is not passed under the Act, under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no power to do so.

16. The Court, emphasizing that the cases where the Courts have interfered in a detention matter at pre execution stage are only few, held that the refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders at pre execution stage, does not amount to the abandonment of the said power or to their denial to 13 the proposed detenue but prevents their abuse and the perversion of the law in question.

17. It is argued by learned counsel for the petitioner that the five circumstances identified by the Supreme Court in Alka Subashs case are illustrative and not exhaustive in nature and the petitioners case is not to be examined on the assumption that interference with a detention order at pre-execution stage is restricted to references, identified in aforesaid reported case. Learned counsel for the appellant in this behalf seeks to draw support from law laid down in Subash Popatlal Daves case (supra). Reliance in particular is placed on following observations in paras 26 and 29 of the judgment:-

26. Nowhere has it been indicated that challenge to the detention order at the pre execution stage, can be made mainly on the aforesaid exceptions referred to hereinabove.

By prefacing the five exceptions in which the Courts could interfere with an order of detention at the pre execution stage, with the 14 expression viz, Their Lordships possibly never intended that the said five examples were to be exclusive. In common usage or parlance the expression viz means in other words. There is no aura of finality attached to the said expression. The use of the expression suggests that the five examples were intended to be exemplar and not exclusive. On the other hand, the Honble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of said power. It is only in Sayed Taher Bawamiyas case (supra) that another Three-Judge Bench considered the ratio of the decision of this Court in Alka Subhash Gadias case (supra) and observed that the Courts have the power in appropriate cases to interfere with the detention orders at the preexecution stage, but that the scope of interference was very limited. It was in such context that the Honble Judges observed that while the detention orders could be challenged at the pre-execution stage, that such challenge could be made only after being prima facie satisfied that the five exceptions 15 indicated in Alka Subhash Gadias case (supra) had been fulfilled.

29we are of the view that the right of a detenue to challenge his detention at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadias case (supra), equires further examination. There are various pronouncements of the law by this Court, wherein detention orders have been struck down, even without the apprehension of the detenu, on the ground of absence of any live link between the incident for which the detenu was being sought to be detained and the detention order and also on grounds of staleness. These are issues which were not before the Honble Judges deciding Alka Subhash Gadias case (supra). Law is never static but dynamic, and to hold otherwise, would prevent the growth of law, especially in matters involving the right of freedom guaranteed to a citizen under Article 19 of the Constitution, which is sought to be taken away by orders of preventive detention, where a citizen may be held and detained not to punish him for any 16 offence, but to prevent him from committing such offence. As we have often repeated, the most precious right of a citizen is his right to freedom and if the same is to be interfered with, albeit in the public interest, such powers have to be exercised with extra caution and not as an alternative to the ordinary laws of the land. Mr. Sethi, senior advocate referring to above observations, argues that the learned Single Judge has not appreciated that there was no link between the alleged incident and the detention order slapped on the appellant and that the detention order on the face of it depicted non application of mind on part of the detaining authority. Learned counsel points out that though the appellant was let off on bail on 21st of November, 2011, the detaining authority in the grounds of detention claimed to have felt persuaded to pass the detention order as the detenue was likely to be admitted to bail and engage in the immoral activities as alleged in case FIR No.40/2011 under Sections 451, 506, 376, 511 RPC registered at Police Station Kralkhud Srinagar. It is argued that the detention order impugned before learned Single 17 Judge was liable to be quashed on the aforestated grounds as also other grounds set out in the petition.

18. Mr. Basotra, learned Senior Additional Advocate General, on the other hand, supporting the judgment impugned in the appeal, argues that the failure on the part of the detaining authority to notice grant of bail to the appellant in case FIR No.40/2011 after it received dossier from the Senior Superintendent of Police, is not sufficient to attribute non application of mind to the detaining authority and therefore is not to warrant interference at the pre-execution stage. Mr. Basotra argues that the ground in any case is to be dealt with after the detention order is executed. Controverting the argument advanced by learned counsel for appellant, that there is no live link between the occurrence in case FIR No.40/2011 registered at Police Station Kralkhud and the detention order. Learned Senior AAG points out that the detention order was passed only a few days after the allegation of economic and physical exploitation of young girls from under privileged class surfaced against the appellant and therefore there was a live link between the allegation and the detention order in question.

19. The Supreme Court in Subash Popatlal case (supra) did not disagree with the basic principles laid down by the Supreme court in Alka Subash case regarding exercise of judicial review as regards detention order at pre-execution stage. The Supreme Court, however, held that the five circumstances identified in para 30 of Alka Subashs case were illustrative and not exhaustive and that over the years the Court exercised the powers in cases that did not strictly fall within ambit of aforestated circumstances identified in Alka Subashs case. The Supreme Court as an illustration referred to judicial intervention, where the detention order was made, a long interval, after the alleged occurrence or where there was no live link between the occurrence and the detention order. The principle laid down in Alka Subashs case that are to govern exercise of discretionary, extra ordinary and equitable jurisdiction under Article 226 of the Constitution, have not been diluted or downplayed in Subash Popatlals case. In the said backdrop, it will be advantageous to extract the following principles laid down in Alka Subashs case:

Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the 19 Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. The extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and 20 equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jains present contention would mean that the courts should disregard all these time-honoured and well-tested judicial selfrestraints and norms and exercise their said powers, in every case before the detention order is exhausted. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period.

Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention 21 order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number. It follows that as on fundamental principles, are to guide the Court called upon to examine a detention order at pre-execution stage.

20. The Court before which a detention order is questioned at pre-execution stage while exercising the power of judicial review has to appreciate that the order is a preventive measure with a limited life span and any interference at pre-execution stage, without a justifiable ground would frustrate the very object of the order and the purpose of the Act under which order is made. The Court is also to be alive to the fact that the preventive detention law lays down a mechanism for the detenue to voice his grievance against the detention order. It is to be pointed out that the detaining authority within 12 days after the detention order is passed and thereafter the State Government, have to provide earliest opportunity to the detenue, to represent against the detention 22 order, take a decision on such representation. In case the representation if any made does not find favour with the Government, the matter is to be placed within four weeks before the Advisory Board headed by a sitting or retired judge of the High Court and consisting of two members who have been or are qualified to be appointed as Judges of the High Court. The Court, has to appreciate that even when intervention at pre-execution stage is declined, the person against whom detention order is made is not to go without a remedy against the detention order.

21. In the present case, a report was lodged at Police Station Kralkhud, Srinagar by the victim alleging therein that the appellant had set up a security agency at Sriangar and Anantnag and was using the security agency as a camouflage and employment as a bait to recruit and thereafter monetarily and physically exploit the recruited girls, mostly belonging to down trodden and under-privileged sections of the society. The appellant was alleged to have not only himself exploited the hapless girls recruited in the Agency but also supplied them for such exploitation to other customers. The exploitation of young girls by the appellants 23 surfaced when the appellant allegedly on 2nd of November, 2011 at night, knocked at the door of one of the recruited girls and made an attempt to commit rape on her colleague who not only foiled his attempt but mustered courage to report the matter to local Police Station. Investigation allegedly revealed that the appellant indulged in such activities at his native place and when he got exposed, he shifted his area of operation to Srinagar and allegedly carried on his immoral activities under cover of a security agency set up at Srinagar.

22. The results of investigation led to public protest demanding stern action against the appellant. The detaining authority recorded satisfaction that the activities of the appellant were likely to prejudice public order passed the detention order in question. In the said background, there is no substance in the argument that the incidents alleged, do not have the live link with the detention order impugned in the petition. It is to be appreciated that FIR No.40/2011 registered against the appellant was not offence against one woman, did not reflect a single incident but a chain of events or pattern of activities indulged in by the appellant that got exposed when one of the victims found 24 courage to tear up the camouflage allegedly worn by the appellant, to indulge in exploitation of hapless girls belonging to the insular, under-privileged and disempowered section of the society. The argument that a single incident ought not to have prompted the detaining authority to slap detention order on the appellant therefore does not sound convincing. The argument would probably warrant attention, had it been case of an assault on the victim and continuous and a well planned exploitation of young girls that the appellant was allegedly able to pursue with impunity, either because the exploited girls were discouraged by a fear that reporting the mater may expose them to public ridicule, social stigma, affect their dignity and reputation in the society.

23. The argument that one of the grounds set out in grounds of detention to pass the detention order was likelihood of grant of bail to the appellant, even though, the appellant had been admitted to bail sometime before the detention order was passed and that the detention order for the said reason has been passed in a mechanical manner without application of mind, is not to prevail. The lapse if any attributable to the detaining authority, in not taking notice of bail order, is to be understood in 25 the context of factual matrix of the case. It is to be pointed out that the alleged large scale exploitation of young girls by the appellant surfaced on 2nd of November, 2012. The appellant was arrested and the Senior Superintendent of Police, Srinagar vide his letter No. Lgl/Det-2759/2011/5884-87 dated 15.11.2011 submitted a dossier to the District Magistrate Srinagar giving details of alleged activities of the appellant and opining that the appellant in the event of bail was likely to indulge in similar activities; that the victims would feel betrayed in view of sensitivity of issue and the trauma victims have undergone and that the situation may take a serious turn and disturb public peace. The appellant was in custody on the date the dossier was submitted to the detaining authority. It took the detaining authority a while to record its subjective satisfaction that the apprehended activities of the appellant were likely to prejudice the public order. The appellant was admitted to bail on 21.11.2011 i.e., a week after the dossier was submitted and the development was not brought to the notice of District Magistrate. The detention order is therefore based on the material available to the detaining authority. It is not a case 26 where detaining authority has not looked into the material, or ignored any vital information discernable from the material. However likelihood of appellant in the event of bail, to resume his alleged immoral activities is not the only reason that has led the detaining authority to record subjective satisfaction that the apprehended activities of appellant necessitated his detention, to prevent him from acting in any manner pre-judicial to the public order. The detaining authority took notice of the negative spill over of the alleged activities of appellant on public order, in view of the public protests against the economic and physical exploitation of young girls by the appellant and, the trauma and pain victims had undergone as also sensitivity of the issue.

24. The respondents after the passing of detention order, made an effort to execute it. However the appellant did not allow the detention order to be executed and even allegedly disobeyed the conditions subject to which bail was granted in his favour. The respondents did not sleep over the matter and allow the detention order to go unexecuted, without any effort on their part to detain the appellant. The respondents approached the learned Chief Judicial Magistrate with an application for cancellation of bail. The 27 application was allowed and appellants bail was cancelled on 25th of April, 2012. However, the appellant undaunted by cancellation of bail, is evading arrest and not allowing the respondents to execute the detention order. The detention order, therefore, cannot be stale and belated or non execution of the detention order is attributable to the respondent. The facts of the present case are, therefore, distinguishable from facts in AIR 2012 Supreme Court 3235, AIR 2006 SC 1719, (2000) 2 SCC 360, AIR 1999 SC 2622, (1998) 8 SCC 343, AIR 1996 SC 70, AIR 1994 SC 656, AIR 1990 SC 225, AIR 1974 SC 1264, where the detention order was held to be belated, stale without any link with the alleged occurrence.

25. In the circumstances and for the reasons discussed, learned Single Judge has rightly dismissed the petition and for valid reasons declined to quash the detention order.

26. We find no merit in the appeal. The appeal is, accordingly, dismissed. Detention record be returned.

(Hasnain Massodi) (M. M. Kumar)  
    Judge         Chief Justice
Jammu:  
01.02.2013 
Surinder

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