Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Regoo vs State Of J&K; And Others on 15 February, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
HCP no.626/2016 MP no.01/2016 Date of order: 15.02.2018 Mushtaq Ahmad Regoo v.
State of J&K and others Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge Appearing Counsel:
For Petitioner(s): Mr Wajid Haseeb, Advocate For Respondent(s): Mr M. A. Wani, Sr. AAG Whether approved for reporting? Yes/No
1. District Magistrate, Pulwama, on the basis of dossier placed before him by Superintendent of Police, Awantipora, vide letter no.Pros/ PSA/2016-1861-64 dated 5th September 2016, recorded his subjective satisfaction that there are sufficient grounds to detain Mushtaq Ahmad Regoo son of Ghulam Mohammad Regoo resident of Khrew Tehsil Pampore District Pulwama, (for brevity "petitioner"), aiming at to prevent him from acting in any manner that is prejudicial to the maintenance of public order and therefore, vide his Order no.61/DMP/PSA/16 dated 7th September 2016, ordered petitioner's detention and lodgement in District Jail, Kathua. It is this order, whereto petitioner throws challenge at pre-execution stage on the foundation of writ petition on hand.
2. Reply has been filed by the respondents. They vehemently resist the petition.
3. I have heard learned counsel for the parties and considered the matter.
4. Prior to adverting to the present case, it is germane to mention here that the right of personal liberty is the most precious right guaranteed HCP no.626/2016 Page 1 of 13 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 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 a person is convicted of the offence, he still has the 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 of India, left room for detention of a person without formal charge and trial, and without such a 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 the preventive measures and prevent the person, bent upon in perpetrating mischief from translating his ideas into action. Article 22(5) Constitution of India therefore leaves scope for enactment of preventive detention law.
HCP no.626/2016 Page 2 of 135. The 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."
6. The conceptual framework of preventive detention has been reiterated in Khudiram Das v. State of W.B., (1975) 2 SCR 832, in the following lines:
"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 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."
7. In Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276, the Supreme 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 imperilling the welfare of the country or the security of the nation or from disturbing the public tranquillity 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. 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 HCP no.626/2016 Page 3 of 13 power is not misused and the preventive detention law kowtows 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 the apprehended activities of a person are likely to prejudice the "security of the state"
or "public order", that the detaining authority feels prompted to order the preventive detention. It is, therefore, necessary that the power available to the detaining authority under the preventive detention law is exercised with due care and caution. The Supreme Court in Dr Ram Krishan Bhardwaj v. 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. The Courts, as laid down in Francis Coralie Mullin v. W. C. Khambra, (1980) 2 SCC 275, 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 zealously 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 the Constitutional and statutory safeguards guaranteed to a detenu. 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 the fundamental safeguards available to a detenu, 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 HCP no.626/2016 Page 4 of 13 to represent in an effective and meaningful manner against his detention.
10. The question that arises for consideration in the present petition is, whether the scope of judicial review at the pre-execution stage is as wide as at post-execution stage, i.e. after the detention order is executed.
11. It may not be out of place to mention here that the Court, while exercising its power of judicial review, at the instance of a detenu 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 detenu with supporting material, if any, with proper despatch, the detenu is informed that he has a right to represent against his preventive detention and allowed to make an effective and meaningful use of such right.
12. Nonetheless in case the detention order is not executed and a person, against whom it is made, not detained, the question of handing over copy of the grounds of detention to him, does not arise and therefore, there is no 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 is same as it is in the case of detention is executed. However, it is beyond dispute that the detenu, as held in Additional Secretary Government of India v. Alka Subash Gadia HCP no.626/2016 Page 5 of 13 1992 Suppl (1) SCC 496 and reiterated in Subhash Popatlal Dave v. Union of India (2012) 7 SCC 533, [hereinafter referred to as "Subhash Popatlal Dave (1)"] and Subhash Popatlal Dave v. Union of India and anr. (2014) 1 SCC 280 [hereinafter referred to, as "Subhash Popatlal Dave (2)"], has a right to question the detention order even at pre-execution stage.
13. The Supreme Court in Alka Subhash Gadia's case (supra), while laying down that the judicial review being a part of basic structure of the 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 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 Articles 226 and 32 of the Constitution. The Supreme Court held that self-imposed limitations must be observed by the Courts, while exercising such jurisdiction. The limitations, it was held, are to be equally observed while exercising jurisdiction in preventive detention matters, given the object for which the detention law is permitted by the Constitution to be enacted. The Supreme Court, emphasising the distinction between existence of wide powers and the propriety and desirability of using them, identified following five circumstances in which the 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.HCP no.626/2016 Page 6 of 13
14. The Supreme Court, emphasizing that the cases where the Courts have interfered in a detention matter at pre-execution stage are only few, has 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 abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.
15. Learned counsel for the petitioner strenuously argues that the five circumstances, identified by the Supreme Court in Alka Subash Gadia's case, are illustrative and not exhaustive in nature and the petitioner's 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 petitioner in this behalf seeks to draw support from law laid down Rajinder Arora v. Union of India & others (2006) 4 SCC 796; Deepak Bajaj v. State of Maharashtra & anr. AIR 2009 SC 628; and Saeed Zakir Hussain Malik v. State of Maharashtra & ors 2012((II) SLJ 226. Learned counsel, after referring to above citations, argues that there is no link between the alleged incident and detention order slapped on the petitioner. The detention order on the face of it depicts non-application of mind on the part of detaining authority. Learned counsel points out that though impugned detention order has been passed on 7th September 2016, yet it has not been executed till date. The petitioner has no knowledge of the cases mentioned in the grounds of detention relating to post 8th July 2016 and he has been never arrested in these cases nor was he ever subjected to any sort of investigation in these cases. Since the investigating agency has not so far arrested the petitioner in the cases mentioned in the grounds of HCP no.626/2016 Page 7 of 13 detention, as such, inference can be drawn that there is not sufficient material in these cases against the petitioner to implicate him in these cases and passing of detention order is illegal.
16. Learned counsel for respondents, on the other hand, supporting the impugned detention order, avers that the dossier supplied by the police and copies of FIRs annexed with the reference disclose that the petitioner has come in contact with various separatist and secessionist elements and developed separatist ideology and subsequently became active member of separatist camp, whose main aim and object is to secede the Jammu and Kashmir State from the Union of India and annex it with Pakistan. The petitioner, according to counsel for respondents, has indulged in stone pelting and involved in instigating and leading a violent mob for defying the curfew and attacking/setting ablaze police Division Khrew on 1st August 2010, regarding which FIR no.144/2010 was lodged and the petitioner is involved in disturbing the atmosphere of communal harmony during Annual Jawa Lal Gi Temple Festival at Khrew on 18th July 2016, by participating and instigating a violent mob, which resorted to stone pelting on the pilgrims and police personnel regarding which case FIR no.149/2016 was lodged at Police Station Pampore. During the month of August 2016, the petitioner is said to have remained active in organising rallies and instigating public to attack security forces and other installations, leading to lodgement of case FIR no.155/2017. This, as said by counsel for respondents, necessitated issuance of impugned detention order. However, the petitioner has evaded the arrest and could not be arrested because he was hiding from one place to another place and that the petitioner has filed the writ petition at pre-execution stage, without surrendering himself before the police authorities for execution of warrants. In support of his submissions, learned counsel HCP no.626/2016 Page 8 of 13 for respondents has placed reliance on Hare Ram Pandey v. State of Bihar (2004) 3 SCC 289; and Naseer Ahmad Dar v. State of J&K and another 2005 (II) SLJ 574.
17. The Supreme Court in Subash Popatlal Dave's (1) case (supra) did not disagree with the basic principles laid down by the Supreme court in Alka Subash Gadia's case qua exercise of judicial review concerning detention order at pre-execution stage. The Supreme Court, however, held that the five circumstances, identified in paragraph 30 of Alka Subash Gadia's 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 afore-stated circumstances identified in Alka Subash Gadia's 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 principles laid down in Alka Subash Gadia's case, that are to govern exercise of discretionary, extraordinary and equitable jurisdiction under Article 226 of the Constitution, have not been diluted or downplayed in Subash Popatlal Dave's (1) case. In the said backdrop, it will be advantageous to extract the following principles laid down in Alka Subash Gadia's case:
"Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the 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 untrammelled 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 HCP no.626/2016 Page 9 of 13 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 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 Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints 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 petitioners, 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 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 pre-execution stage are necessarily very limited in scope and number."
18. It follows that 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 detenu 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, has to provide earliest opportunity to the detenu, to represent against the detention 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 HCP no.626/2016 Page 10 of 13 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.
19. In the present case, the repetition of highly prejudicial activities on the part of the petitioner is stated to have resulted in lodgement of number FIRs, bearing FIR nos. 64/2016, 65/2016 and 67/2016, under Sections 147, 148, 188, 353, 341, 307, 109, 427, registered in Police Station Pampore and thereafter FIR nos.149/2016 and 155/2016 as well. Thus, the detaining authority, after recording satisfaction that the activities of the petitioner were likely to prejudice the maintenance of 'public order', has passed the detention order in question. In the said backdrop, 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.
20. The respondents, after the detention order was passed, made efforts to execute it. However, the petitioner did not allow the detention order to be executed and evaded its execution and thereafter approached this Court with petition on hand. A Bench of this Court by order dated 2 nd December 2016 stayed the impugned detention order and directed respondents not to execute it till further orders from this Court. So, the detention order has remained unexecuted. The detention order, therefore, cannot be said as stale or belated and non-execution of the detention order cannot be attributed to the respondents. The facts of the present case are, therefore, distinguishable from the facts of the cases/citations relied upon by learned counsel for the petitioner.
21. The present case does not fall under any of the five exceptions as culled out in Alka Subash Gadia's case, for this Court to interfere. Alka Subhas Gadia's case portrays that it is only in these five types HCP no.626/2016 Page 11 of 13 of instances that this Court may exercise its discretionary jurisdiction under Article 226 at the pre-execution stage. The petitioner has sought to contend that the order impugned is vague, extraneous and on irrelevant grounds but there is no material for making such an averment thereagainst. I have already discussed the judgments rendered in the cases of Subhash Popatlal Dave (1) & (2), on the question of ambit and scope when a writ court exercises its power of judicial review, challenging the detention order. The courts exercise a limited power, for the satisfaction of the detaining authorities is always subjective. The power of judicial review is restricted to legality of the subjective satisfaction. In other words, the courts do not examine the sufficiency of the reasons, but existence of the reasons and their connect and nexus with the statutory and constitutional preconditions which justify preventive detention. The said exercise is undertaken in a limited way for the order of preventive detention does not partake character of punishment, but is by way of precaution to prevent future mischief and, therefore, to some extent would always depend upon suspicion or anticipation. Power of interference under exception (iv) of Alka Subhash Gadia (supra) at pre-detention stage would be even narrower and more restrictive. Interference would be only justified in cases where the order is perverse or absurd. Interference at pre-detention would be correct in apparently wanton and manifestly malevolent and arbitrary cases. The contentions and the pleas raised by the petitioner do not carve out an overtly exceptional case, which would justify quashing of the detention order at this stage. I have deliberately refrained and not referred to the assertions made by the petitioner and respondents, for it may cause prejudice and would possibly affect the case of the HCP no.626/2016 Page 12 of 13 petitioner when issues and contentions of similar nature are raised after the detention order is executed.
22. As recorded by me, at this stage the enquiry is very restrictive and limited to: whether prima facie palpable grounds and reasons exists, and I need not go into elaborate and perspicacious examination, as the said exercise is mandatory and required at the post detention stage. At the said stage, the enquiry though confined to the objective element in the subjective satisfaction, is more profuse, sharper and pronounced.
23. In view of the legal and factual positions highlighted above, this is not a fit case where any interference is called for, before execution of the order of detention. The petitioner, if so advised, may first surrender pursuant to the order of detention and thereafter have his grievances examined on merits.
24. The writ petition is clearly without merit, deserves dismissal which I direct.
25. Interim direction(s) shall stand vacated.
26. Dismissed.
(Sanjeev Kumar) Judge Srinagar 15th February, 2018 Ajaz Ahmad HCP no.626/2016 Page 13 of 13