Jammu & Kashmir High Court - Srinagar Bench
Majid Gulzar vs State Of J&K; & Others on 26 September, 2018
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
HCP no.163/2018 Date of order: 26.09.2018 Majid Gulzar v.
State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For Petitioner(s): Mr R. A. Bhat, Advocate For Respondent(s): Mr Shah Amir, AAG Whether approved for reporting? Yes
1. Challenge is thrown to order no.39/DMB/PSA/2018 dated 20.06.2018, issued by District Magistrate, Baramulla (for brevity "Detaining Authority") placing Shri Majid Gulzar Dar son of Late Ghulam Mohd Dar resident of Nowpora Kalan, Sopore, District Baramulla (for short "detenu") under preventive detention and directing his lodgement in Central Jail, Kotebhulwal, Jammu.
2. The case set up by petitioner is that detenu is born in the year 1982 and has read up to 10th Class. Detenu is said to have been placed under preventive detention on 20.06.2018 when he was already in custody in connection with case FIR no49/2018 under Section 13 ULA in P/S Tarzoo, Baramulla.
3. Reply has been filed by respondents, vehemently rebutting petition on hand.
4. I have learned counsel for parties. I have gone through detention record and considered the matter.
5. Learned counsel for petitioner, to cement the case set up by petitioner, states that procedural safeguards prescribed under provisions of J&K Public Safety Act, 1978 and rights guaranteed under Article 21 and 22 of the Constitution have not been followed and complied with by respondents and therefore detention of detenu is invalid and void. He also avers that order of detention was neither served upon detenu nor was he informed about grounds on which he was detained and more particularly material relied upon by respondents while passing detention OWP no.351/2018 Page 1 of 20 MP no.01/2018 order. The order of detention is stated to have not been served to detenu but obtained by uncle of detenu from the office of respondent no.2. It is also pleaded that detenu was under custody in connection with case FIR no.49/2018 and he had not applied for bail and therefore, there was no occasion for respondents to say that detenu could have indulged in subversive activities.
6. Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to 'procedure established by law'. The most important expressions in this provision are procedure established by law. Immediately after the Constitution became effective, the question of interpretation of these words arose in the famous case of A. K. Gopalan v. State of Madras AIR 1950 SC 27, where validity of Preventive Detention Act, 1950, was thrown to challenge. The main question was whether Article 21 envisaged any procedure laid down by a law enacted by a legislature or whether procedure should be fair and reasonable. On behalf of A. K. Gopalan, an attempt was made to persuade the Supreme Court to hold that the Courts could adjudicate upon reasonableness of Preventive Detention Act, or for that matter any law depriving a person of his personal liberty, as is being tried and attempt in the case in hand. A three-pronged argument was developed for this purpose:
a) The word 'law' in Article 21 does not mean merely enacted law but incorporates principles of natural justice so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these principles in the procedure laid down by it.
b) The reasonableness of the law of preventive detention ought to be judged under Article 19.
c) The expression 'procedure established by law' introduces into India the American concept of procedural due process which enables the Courts to see whether the law fulfils requisite elements of a reasonable procedure.
Thus, in A. K. Gopalan's case (supra), an attempt was made to win for a detenu better procedural safeguards than were available to him under the relevant detention law and Article 22. But the attempt failed as the Supreme Court rejected all these arguments. The Supreme Court ruled by majority that the word 'law' in Article 21 could not be read as meaning rules of natural justice. These rules were vague and indefinite and the Constitution could not be read as laying down a vague standard. Nowhere in the Constitution the word 'law' was used in sense of abstract law or natural justice. The word 'law' was used in sense of lex (state made OWP no.351/2018 Page 2 of 20 MP no.01/2018 law) and not jus. The expression 'procedure established by law' would, therefore, mean procedure as laid down in an enacted law.
7. The case of Maneka Gandhi v. Union of India AIR 1978 SC 597, is a landmark case of post emergency period. This case shows how liberal tendencies have influenced the Supreme Court in the matter of interpreting fundamental rights, particularly Article 21. A great transformation has come about in judicial attitude towards protection of personal liberty after traumatic experiences of emergency during 1975- 77, when personal liberty had reached its nadir. A 2009 judgement render in Suchita Srivastava v. Chandigarh Administration reported in (2009) 9 SCC 1, reasserts that strict boundaries of 'personal liberty' cannot be identified but at the same time mandates that such liberty must also accommodate public interest.
8. Article 22 of the Constitution is one of the groups of Articles in Part III (Fundamental Rights) of the Constitution of India, which have been collected together under the sub-heading Right to Freedom. The subject-matter of the Article is personal liberty. This Article proceeds to guarantee certain fundamental rights to every arrested person. These rights being guaranteed by the Constitution are of a higher status than rights which are merely conferred by the ordinary law and have no such constitutional guarantee. In fact, Article 22 did not exist in the Draft Constitution. It was added towards the end of the deliberations of the Constituent Assembly. Because the Article 21 had been violently criticised by the public outside as Parliament was being given carte blanche to make and provide for the arrest of any person under any circumstances. Article 22 provides:
"Article 22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply -
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless -OWP no.351/2018 Page 3 of 20 MP no.01/2018
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub- clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)."
9. From the combined reading and interpretation of Articles 21 and 22 of the Constitution, it emerges that no citizen in this country shall be detained or deprived of his liberty without compliance of the provisions of law and the Constitutional guarantees as enshrined in Part-III of the Constitution of India. Some of the rights arising and flowing out of aforesaid Constitutional provisions admitted and acknowledged by different Courts in the country are that: no citizen would be detained except under the authority of law; detaining authority shall communicate to such person the grounds on which the said order was made, as soon as may be; grounds shall be accompanied with such particulars which are sufficient to enable detenu to make an effective representation; grounds of detention must be consistent with the object of Statute governing preventive detention of citizens; detention order must be passed for the object contemplated by the Constitution and Statutes governing such detention; the detention order should appear to have been based on subjective satisfaction of detaining authority; preventive detention should not be the result of mala fide action of OWP no.351/2018 Page 4 of 20 MP no.01/2018 executive and should not have been passed in a routine and mechanical manner; prevention detention should not be resorted to as a measure of punishment for the past acts and should be intended to prevent such person from acting in a manner prejudicial to the security of the State or public order.
10. In India, preventive detention was introduced for the first time in the year 1818 by Bengal State Prisoners Regulations 3 of 1818. The Government of India Act, 1935, also encompassed provisions of preventive detention. The Act empowered Federal as well as Provincial Legislatures to enact Laws providing for preventive detention. The Federal Legislature had legislative powers with respect to matters contained in Entry I of List I and the Provincial Legislature over the matters contained in Entry I List II. Though some members of Constituent Assembly, who framed the Indian Constitution, were victims of preventive detention during British rule over India, particularly during World War second, still the provisions concerning preventive detention were included in Indian Constitution. The need to keep such provision in the Constitution was felt due to the violence, which had erupted on the partition of India. The object of the framers of the Constitution in giving a constitutional status to preventive detention was aiming at to squelch anti-social, anti-national and subversive elements from imperilling the welfare of the Republic.
11. So far as the State of Jammu and Kashmir is concerned, the State Legislature is competent to enact prevention detention laws. The reason being that by virtue of Article 370 of the Constitution of India, various provisions of the Indian Constitution apply in relation to the J&K State, however, subject to such exceptions and modifications as the President may specify. The President of India has issued "The Constitution (Application of Jammu and Kashmir) Order, 1954" and extended various provisions of the Constitution of India, to the State. Entry 9 of the Union List and Entry 3 of the Concurrent List under which preventive detention laws can be made by the Parliament, do not apply to the State of J&K. The residuary powers also lie with the State Legislature. Article 22(4) and (7) apply to the State of J&K with modification that in place of law made by the Parliament, the law made by the State Legislature is substituted. Thus, it is the State Legislature and not the Parliament, which has powers to enact laws qua preventive detention.
12. It was in the year 1964 that with the aim of consolidating the law apropos of detention in certain cases and to take care of matters OWP no.351/2018 Page 5 of 20 MP no.01/2018 connected therewith, "The Jammu and Kashmir Preventive Detention Act, 1964", was passed by Sadar-i-Riyasat under Act No.XIII of 1964, which came to effect on 22nd October 1964. The life of this Act was up to 8th of May 1974. Thereafter an Ordinance "The Jammu and Kashmir Public Safety Ordinance" was issued in 1977, which was replaced by the Jammu and Kashmir Public Safety Act, 1978, which too has been amended from time to time and is still in vogue. Apart from this, "Jammu and Kashmir Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1988", was enacted to provide for detention in certain cases for purpose of prevention of black marketing and maintenance of essential supplies of commodities essential to the community and for matters connected therewith. In the same year another Act, namely, the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988, was also enacted to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substance and combating abuse of such drugs and substances and for matters connected therewith.
13. Similarly in order to provide for preventive detention in certain cases for purpose of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith and whereas having regard to persons by whom and the manner in which such activities or violations are organised and carried on, and given the fact that in certain areas, which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude, are clandestinely organised and carried on, it was necessary for effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was enacted by the Parliament which came into force on 19th December 1974, throughout whole of India including Jammu and Kashmir State.
14. In the situation of communal disharmony, social tension, extremist and secessionist activities and increasing tendency on the part of various interested parties to engineer agitation, distress and turmoil on different issues, it was considered necessary that the law and order situation in the State is tackled in a most determined and effective way. The antisocial and antinational elements including secessionists, communal and pro-cast elements and also other unscrupulous elements that adversely influence and affect the services essential to the community, post a grave challenge to lawful authority and sometimes even hold OWP no.351/2018 Page 6 of 20 MP no.01/2018 society to ransom. Considering complexity and nature of problems, particularly concerning security, defence, public order and services, essential to the community, it was considered view of the State Government that the administration would be greatly handicapped in dealing effectively with the same in the absence of powers preventive detention. Thus, the Jammu and Kashmir Public Safety Act was enacted by the State Legislature in the year 1978, whereas assent of the State Governor was received on 8th April 1978, and came into force in whole of the Jammu and Kashmir State w.e.f. Eighth April 1978, i.e. the date when it was published in the official Gazette. By coming into force of Act of 1978, J&K Public Safety Ordinance, 1977, was repealed. However, notwithstanding such repeal anything done or any action taken, including any rule or order made, under the said Ordinance, shall, so far as consistent with the provisions of this Act, be deemed to have done or taken under the corresponding provisions of the Act. The object of preventive detention is not to punish for having done something illegal but to intercept him before he does it and to prevent him from abusing his freedom. The object of preventive detention is not punitive but only preventive. It is resorted to when the Executive authority is convinced that such detention is necessary in order to prevent the person (to be detained) from acting in any manner, inter alia, prejudicial to security of the State or maintenance of public order.
15. It is evident that power of preventive detention was conferred by the Constitution in order to ensure that the security of the country and welfare of its people are not put in peril. So long as a law of preventive detention operates within the general scope of the affirmative words used irrespective of entries in the Union and Concurrent Lists, which give that power and so long it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. But the liberty of the individual has to be subordinate, within reasonable bounds, to the good of the people. Therefore, acting in public interest, the Constituent Assembly made provision in Entry 9 of List I and Entry 3 of List III, authorizing the Parliament and the State Legislatures by Article 246 to pass laws of preventive detention. These lists read thus: Entry 9 List I: Preventive detention for reasons connected with defence, Foreign affairs, or the security of India; persons subjected to such detention.
OWP no.351/2018 Page 7 of 20 MP no.01/2018Entry 3 List III: "Preventive detention for reasons connected with security of a State, the maintenance of public order, or maintenance of supplies and services essential to the community; persons subjected to such detention". The practical need and reality of laws of preventive detention find concrete recognition, as iterated herein above as well, in the provisions of Article 22 of the Constitution. Laws providing for preventive detention are expressly dealt with by that Article and their scope appropriately defined. The established Courts of justice, when a question arises whether the prescribed limits have been exceeded, must necessarily determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.
16. 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 the case of Maneka Gandhi (supra), 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(3)(b) 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. It is important to be seen that what is aim and object of Article 22(3)(b) and why it has been incorporated in the Constitution. The aim and object thereof are to protect and save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. Same is true qua present case.
In such a case it would be dangerous for the people at large, in the present case are citizens and subjects of J&K State, to wait and watch as OWP no.351/2018 Page 8 of 20 MP no.01/2018 by the time ordinary law is set in motion, a person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent a person, bent upon to perpetrate mischief, from translating his ideas into action. Article 22 of the Constitution of India therefore leaves scope for enactment of preventive detention law.
17. 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.
18. 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 more especially to present case. 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 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 collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind individual actions, which are perceived as flaws by large body of people, but, truth is and has to be that when law withstands test of Constitutional scrutiny in a democracy, individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent OWP no.351/2018 Page 9 of 20 MP no.01/2018 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.
19. 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. In the present case, glimpse of record on the file reveals that detenu was furnished copies of detention order, grounds of detention and other material which was relied upon by detaining authority. Detenu is shown to have been communicated that he may make a representation to government and detaining authority against detention order, if he so desire. Grounds of detention are definite, proximate and free from any ambiguity. 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 of 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.
20. Learned counsel for petitioner has also painstakingly stated that the allegations in grounds of detention are vague and cases and instances mentioned in grounds of detention have no nexus with detenu and have been managed by police to rationalise its illegal action in detaining OWP no.351/2018 Page 10 of 20 MP no.01/2018 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 requisite satisfaction for detaining a person.
Momentary look of record on file divulges that detenu is an over ground worker of banned outfit Lashkar-e-Toiba (LeT). Grounds of detention reveal that detenu in the year 2013 developed contacts with militants of HM outfit and started working as over ground worker with the said banner outfit and provided them all sorts of assistance. Detenu is shown to have been apprehended by security forces in the year 2014 at Sopore near Ahad Baba crossing and one hand grenade was recovered from his possession and as a sequel whereof, case FIR no.170/2014 under Section 3/4 Exp. Act was registered in Police Station Sopore. He was, however, later on enlarged on bail and charge sheet was produced before the court of law against detenu. Grounds of detention also reveals that in the month of December 2017, detenu developed contacts with militants of LeT outfit, who motivated hi to work for the said outfit. In the month of January 2018, detenu is said to have come in contact with militants of HM outfit through his friend, namely, Nameez Ahmad Yatoo resident of Nowpora and on his advice, detenu arranged transport to four militants of HM outfit from Handwara to Nowpora Sopore and militants stayed in the house of Nameez Ahmad Yatoo for three days and detenu is said to have arranged all requirements t militants of HM outfit. Detenu is shown to have transported two militants of LeT outfit from Sopore area to Kupwara and also arranged their shelter in Kupwara. On .6.2018, detenu is said to hae been apprehended by police component Sopore/CRPF at Amargarh near Railway Crossing along with his two associates and some incriminating material in the shape of documents were recovered from his possession and from the possession his associates for which case FIR no.49/2018 was registered in Police Station Tarzoo. Thus, it is deducible from grounds of detention that 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 grounds of detention are self-contradictory or vague. Detenu's role has been specifically described. Even otherwise it is settled law that power of this Court in proceedings under Article 226 of the Constitution is limited to scrutinizing whether detention order has been passed on material placed before detaining authority inasmuch as this Court cannot go further and examine sufficiency of material. This OWP no.351/2018 Page 11 of 20 MP no.01/2018 Court does not sit in appeal over decision of detaining authority. This Court cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. This Court can only examine 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 detenu from engaging in activities prejudicial to security of the State or maintenance of public order. In this regard I am fortified by law laid down by the by the Supreme Court in State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216; State of Punjab v. Sukhpal Singh (1990) 1 SCC 35; Union of India v. Arvind Shergill (2000) 7 SCC 601; Pebam Ningol Mikoi Devi v. State of Manipura, (2010) 9 SCC; and Subramanian v. State of T.N. (2012) 4 SCC 699.
21. It is germane to mention that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person. 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. 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. Both are independent; both are not subservient to each other. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order. 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.OWP no.351/2018 Page 12 of 20 MP no.01/2018
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.
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."
22. What emerges from above dictum is that power of preventive detention is qualitatively different from punitive detention. 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 and 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. It is, thus, well settled law that Article 14 is inapplicable as preventive detention and prosecution, are not synonymous. The OWP no.351/2018 Page 13 of 20 MP no.01/2018 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, past act is merely the material for inference about future course of probable conduct on part of detenu. Given aforesaid background, in the present case it cannot be denied that detenu has to his credit two criminal cases (FIRs). What are contended/ alleged in these cases need no exposition. Prejudicial activities therein have been ascribed to detenu, which have resulted in lodgement and registration of those FIRs. Such activities are not for interest of social fabric or Nation's integrity and sovereignty muchless public order or security of the State. Those activities are, obviously, detrimental, and not fruitful, for the society. Having said that, impugned detention order need not be interfered with.
23. Learned counsel for the petitioner has strenuously stated that offences, if any, alleged against detenu can be dealt with under ordinary law of land and recourse to detention laws is not warranted and that preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. Said contention of learned counsel is specious. Merely because a detenu is liable to be tried in a criminal court for commission of a criminal offences or to be proceeded against for preventing him from committing offences dealt with in the Code of Criminal Procedure, as held by the Supreme Court in Borjahan Gorey v. State of W.B. AIR 1972 (2) SCC 550; Ashim Kumar Ray v. State of W.B. 1973 (4) SCC 76; Abdul Aziz v. District Magistrate, Burdwan 1973 (1) SCC 301; and Debu Mahato v. State of W.B. 1974 (4) SCC 135, would not by itself debar the government to take an action for his detention. The scheme of the Act, besides object and purpose of bringing the Act of 1978 on the Statute book, clearly showed that in view of prevailing situation in the country, need was felt for urgent and effective preventive action in the interest of national security. Preventive detention provided by the Act is apparently designed to deal urgently and effectively with more serious situation, inter alia, affecting security of India and maintenance of public order. Liability of detenu also to be tried for commission of an offence or to be proceeded against under Chapter VIII of the Code of Criminal Procedure which deals with prevention of less serious disturbances and requires execution of bonds on the basis of the acts disclosed in grounds, do not in any way as a matter of law, affect or impinge upon full operation of the Act. The OWP no.351/2018 Page 14 of 20 MP no.01/2018 reason is obvious. Judicial trial for punishing accused for commission of an offence as also preventive security proceedings in a criminal court against a person merely for keeping the peace or for good behaviour under the Code of Criminal Procedure, is a jurisdiction distinct from that of detention, which has, in essence, object of preventing detenu from acting in any manner prejudicial, inter alia, to the security of the State or maintenance of public order. The fields of these two jurisdictions are not coextensive nor are they alternative. The jurisdiction under the Act may be invoked, when available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repletion of past conduct which would be prejudicial, among others, to the security of the State or maintenance of public order or even when the witnesses may be frightened or scared of coming to a court and deposing about past acts on which the opinion of the authority concerned is based. This jurisdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction. The jurisdiction for trial or for preventive proceedings under the Code of Criminal Procedure cannot be successfully be invoked in such a situation. In other words, a case under the Code of Criminal Procedure whether punitive or preventive depends on the proof of objective facts which have already taken place whereas a case under the Act providing for preventive detention depends on subjective satisfaction of authorities concerned of likelihood of the person to be detained to act in future in a manner similar to the one seen from his past acts. The authorities mentioned in the Act, which include the District Magistrate, has been held as best suited to decide whether it is necessary to proceed under the Act which decision rests on his subjective satisfaction. It was also held that grounds of detention relate to past acts on which opinion as to likelihood of repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to how and why subjective satisfaction has been arrived at so as to enable him to represent against them. The Supreme Court has also held that the fact, therefore, that a prosecution under the Code could also have been launched is not a valid ground for saying that it precludes the authority from acting under the Act.
24. Where individual liberty comes into conflict with an interest of the security of the State or public order, then liberty of individual must give way to larger interest of the nation. These observations have been made OWP no.351/2018 Page 15 of 20 MP no.01/2018 by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127.
25. The Supreme Court in the case of Debu Mahato (supra), has pointed out that while ordinarily-speaking one act may not be sufficient to form 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 the case of Anil Dely v. State of W.B. (supra). It was only 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 (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 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 earlier apprehended with one hand grenade and subsequently in June 2018 he was apprehended with his associates with incriminating material, 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.
26. 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 OWP no.351/2018 Page 16 of 20 MP no.01/2018 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. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The said views and principles have been reiterated by the Supreme Court in Gautam Jain v. Union of India another AIR 2017 SC 230.
27. A law of preventive detention is not invalid because it prescribes no objective standard for ordering preventive detention, and leave the matter to the subjective satisfaction of the executive. The reason for this view is that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects which the law of preventive detention seeks to prescribe. Preventive detention is, thus, based on suspicion or anticipation and not on proof. The responsibility for security of the State, or maintenance of public order, or essential services and supplies rests on the Executive and it must, therefore, have the necessary power to order preventive detention. The subjective satisfaction of a detaining authority to detain a person or not is not open to objective assessment by a Court. A Court is not a proper forum to scrutinise the merits of the administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not. The Supreme Court has stated that "when power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision which cannot be described as either irrational or unreasonable; in the sense that no person instructed in law could have reasonably taken that view, then the order is not bad and the court cannot substitute its decision or opinion, in place of the decision of the authority concerned on the necessity of passing the order".
28. The Courts do not even go into the question whether the facts mentioned in the grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the OWP no.351/2018 Page 17 of 20 MP no.01/2018 Courts and that it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board.
29. Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires. 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. Justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence. Thus, any preventive measures, even if they involve some restraint or hardship upon individuals, as said by the Supreme Court in Ashok Kumar v. Delhi Administration and others AIR 1982 SC 1143, do not partake in any way of the nature of punishment. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose.
30. Besides what has been discussed above, extremism, radicalism, terrorism have become the most worrying features of the contemporary life. Though violent behaviour is not new, the contemporary extremism, radicalism, terrorism in its full incarnation have obtained a different character and poses extraordinary threats to civilized world. The basic edifices of a modern State, like - democracy, State security, public order, rule of law, sovereignty and integrity, basic human rights, etcetera, are under attack of such extreme, radical and terror acts. Though phenomenon of extremism, radicalism, fanatism or terrorism is complex, a terrorist or such like an act is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not.
31. Paul Wilkinson, an authority on terrorism related works, culled out five major characteristics of terrorism. They are:
1. It is premeditated and aims to create a climate of extreme fear or terror.
2. It is directed at a wider audience or target than the immediate victims of violence.
3. It inherently involves attacks on random and symbolic targets, including civilians.
4. The acts of violence committed are seen by the society in which they occur as extra-normal, in literal sense that they breach the social norms, thus causing a sense of outrage; and
5. Terrorism is used to influence political behaviour in some way - for example to force opponents into conceding some or all of the perpetrators OWP no.351/2018 Page 18 of 20 MP no.01/2018 demands, to provoke an overreaction, to serve as a catalysis for more general conflict, or to publicize a political cause.
32. In all acts of extremism, fundamentalism or terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct target of violence but also by exposing them to a sense of insecurity. The Supreme Court in this background held in Mohd Iqbal M. Shaikh v. State of Maharashtra, (1998) 4 SCC 494, that:
"...it is not possible to give a precise definition of terrorism or to lay down what constitutes terrorism. But... it may be possible to describe it as a use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. ... if the object of the activity is to disturb harmony of the society or to terrorize people and the society, with a view to disturb even tempo, tranquillity of the society, and a sense of fear and insecurity is created in the minds of a section of society at large, then it will, undoubtedly be held to be terrorist act..."
33. Our country is victim of an undeclared war by the epicentres of terrorism, radicalism, secessionism and extremism with the aid of well- knit and resourceful outfits and organizations, engaged in secessionist, terrorist and radical activities in different States, such as Jammu and Kashmir, North-East States, West Bengal, Tamil Nadu, Andhra Pradesh. It is not necessary to swell the incidents happening throughout the country by narrating all the episodes of extremist, terrorist, fanatical activities that the country witnesses. These acts and activities are meant to destabilize the Nation, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected governments, to promote prejudice and bigotry, to demoralize security forces, to thwart economic progress and development and so on and so forth. This cannot be equated with a usual law and order problem within a State. Fight against overt and covert prejudicial acts is not a regular criminal justice endeavour. Rather it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, secessionist, extremist and terrorist activities are challenge for law enforcement. By indulging in such activities, organized groups and/or individuals, trained, inspired and supported by fundamentalists and anti-Indian OWP no.351/2018 Page 19 of 20 MP no.01/2018 elements are trying to destabilize the country. This new breed of menace was hitherto unheard of. Extremism, fanatism, terrorism is definitely a criminal act, but it is much more than mere criminality. Today, the government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within borders.
34. The threat that we are facing is now on an unprecedented global scale.
Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country may take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spill over ramifications. It is, therefore, difficult in the present context to draw sharp distinctions between domestic and international terrorism. Many happenings in recent past caused international community to focus on the issue of terrorism with renewed intensity. Anti-fanatism, anti-extremism, antiterrorism activities in the global level are mainly carried out through bilateral and multilateral cooperation among nations. It has, in such circumstances, become our collective obligation to save and protect the State and its subjects from uncertainty, melancholy and turmoil.
35. For the foregoing discussion and reasons, the petition sans any merit and is, accordingly, dismissed.
36. Detention record be returned to learned counsel for respondents.
Srinagar ( Tashi Rabstan ) 26 .09.2018 Judge Ajaz Ahmad OWP no.351/2018 Page 20 of 20 MP no.01/2018