Jammu & Kashmir High Court - Srinagar Bench
Maqsood Ahmad Khan vs State Of J&K; And Others on 1 September, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
HCP No.77/2017 Date of order: 01 /09/2017 Maqsood Ahmad Khan Versus State of J&K and another Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge Appearing Counsel:
For the petitioner(s): Mr Mir Shafaqat Hussain, Advocate For the respondent(s): Mr Asif Maqbool, GA
1. Quashment of Order No.DMB/ARA/PSA/256 dated 6th February 2017, passed by District Magistrate, Baramulla - respondent no.2 herein, placing Maqsood Ahmad Khan @ Maqsood son of Mohamamd Younus Khan resident of Mohara Uri at present Bagi Islam, District Baramulla (for brevity "detenu") under preventive detention is sought for.
2. The case set up in the petition is that respondent No.2, while slapping preventive detention on detenu, has not adhered to Constitutional and Statutory safeguards available to detenu under the Constitution of India and J&K Public Safety Act, 1978.
3. I have heard learned counsel for parties. I have gone through the pleadings as also record made available by learned counsel for respondents. I have considered the matter.
4. Learned counsel for petitioner states that cases mentioned in grounds of detention have no nexus with detenu and have been fabricated by the police to justify its illegal action of detaining detenu and that the allegations made in the grounds of detention HCP no.77/2017 Page 1 of 8 2 are vague, non-existent, stale and sketchy. Learned counsel also avers that detenu was granted bail in two FIRs and relevant material, relied upon by detaining authority, was not provided to detenu, so as to enable him to make an effective representation against detention order. His further contention is that detenu is an illiterate person and understood only Kashmiri language and no grounds of detention is in English and no translated script in Kashmiri or Urdu was furnished to detenu nor were grounds of detention read over and explained to him in the language he understands so that he could make effective representation. To cement his arguments, learned counsel for petitioner has placed reliance on Chaju Ram v. State of J&K 1971 SC; Anant Sakharam Raut v. State of Maharashtra and another AIR 1987 SC 137; Razia Umar Bakshi v. Union of India and ors 1980 (3) SCC 1398; Sophia Gulam Mohd. Bham v. State of Maharashtra and others AIR 1999 SC 3051; Rajinder Arora v. Union of India and others (2006) 4 SCC 796; Mohammad Ashraf Khan v. State & ors 2010 (I) SLJ 365; Shabir Ahmad Zargar v. State & ors 2010 (I) SLJ 493; judgement dated 9th June 2017 in LPAHC no.43/2017 titled Tariq Ahmad Dar v. State of J&K and others passed by the Division Bench of this Court;
order dated 11th August 2017 in HCP no.100/2017 titled Javid Ahmad Khan v. State of J&K & others passed by Coordinate Bench of this Court.
5. Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the mind of an executive authority. Preventive detention is fundamentally and qualitatively different from imprisonment after trial and HCP no.77/2017 Page 2 of 8 3 conviction in a criminal court. Preventive detention and prosecution for an offence are not synonymous. In conviction an accused is sought to be punished for a past act. The offence has to be proved in the court beyond reasonable doubt. In preventive detention, on the other hand, a person is detained without trial on subjective satisfaction of executive to prevent him for committing an undesirable act in future. The idea is not to punish him for his past acts. In preventive detention, the past act is merely the material for inference about future course of probable conduct on the part of detenu. Preventive detention is, thus, preventive, no punitive. It is not to punish an individual for any wrong done by him, but curtailing his liberty, with a view to preventing him from committing certain injurious activities in future. It is ingeminated here that 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 because of criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save the society from HCP no.77/2017 Page 3 of 8 4 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 general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) of the Constitution of India, therefore, leaves scope for enactment of preventive detention law.
6. In the present case, 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 that detenu was delivered, at the time of execution of detention order, material and grounds of detention and also informed that he had a right to represent against his preventive detention. The record further reveals that impugned detention dated 6th February 2017 has been, in exercise of powers conferred by sub-section (4) of Section 8 of the J&K Public Safety Act, 1978, approved vide Government Order no.Home/PB-V/472 of 2017 dated 15th February 2017, and thereafter the case was referred to the State Advisory Board for its opinion. The State Advisory Board vide its opinion dated 20th February 2017 observed that there was sufficient cause for detention of detenu. Accordingly, in exercise of powers conferred by Section 17(1) of J&K Public Safety Act, vide Government order no.Home/PB-V/605 of 2017 dated 28th HCP no.77/2017 Page 4 of 8 5 February 2017, the detention order dated 6th February 2017 has been confirmed.
7. From the perusal of detention record it also comes to light that detenu, at the time of execution of detention order, had been handed over copy of detention order, grounds of detention and other material that finds mention in the detention order, so as to enable him to make a representation against his detention. A receipt, in this regard signed by detenu, also reflects detenu having received all the material that had been relied upon by detaining authority while passing detention order. Not only this, detenu has been also informed that he can file a representation against his detention.
8. Detaining authority has, while narrating the account of detenu, beginning from the year 2011 to 2016 in the grounds of detention, drawn attention to the activities, which are punishable under Section 307, 148, 149, 332, 336, 353, 427 RPC, that detenu had committed, resulting in registration of case FIRs in 2011 and 2013; detaining authority has also furnished conscientiously the occurrences and incidences that took place on 12th July, 13th July, 11th August, 12th August, 19th August 2016, which caused to registration of case FIR nos.144/2016, 152/2016, 220/2016, 219/2016, 238/2016, in which detenu had a prime role and therefore, the activities that detenu had indulged in, are highly prejudicial to the maintenance of public order, particularly in town Baramulla and its adjacent areas. The grounds of detention are about prejudicial activities, the detenu had indulged in the past or in the view of detaining authority, the detenu has propensity to indulge in similar prejudicial activities HCP no.77/2017 Page 5 of 8 6 even in future. This is quintessence for exercising power to detain any person. So viewed, detenu is not to be heard saying that any of his Constitutional and Statutory rights have been violated while detention order in question was slapped on him and thereafter executed.
9. In the petition as also is the contention of learned counsel for petitioner that allegations/grounds of detention are vague, sketchy and the cases mentioned in grounds of detention have no nexus with detenu and have been fabricated by police in order to justify its illegal action of detaining detenu. Perusal of grounds of detention reveals that detenu is actually resident of Mohara Uri and due to some family dispute he shifted to Baghi Islam, Baramulla and that during unrest, detenu got involved with anti-national elements and voluntarily got indulged in stone pelting incidents in old town Baramulla as and when detenu got an opportunity particularly during the call for Hartal/protest announced by separatist amalgam. Date-wise activities of detenu, by which various police/security personnel got seriously injured and public properties damaged. That being the position, 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. The detaining authority has narrated facts and figures that made it to exercise its powers under section 8 of the J&K Public Safety Act 1978 and record subjective satisfaction that the detenu was required to be placed under preventive detention, so as to prevent him from acting in any manner prejudicial to maintenance of public order. The totality of the circumstances HCP no.77/2017 Page 6 of 8 7 having been taken into account by detaining authority; there is no reason to doubt the subjective satisfaction arrived at for issuance of the impugned detention order, in the fact situation of the present case.
10. Another assertion that has been strenuously taken and raised by learned counsel for petitioner is that detaining authority has, despite having knowledge that detenu was already admitted to bail in two cases viz. 144/2016 and 220/2016, passed impugned detention order, which shows non-application of mind on part of detaining authority. It is apt to mention here that grounds of detention reflect as many as five FIRs registered against detenu, which are 144/2016, 152/2016, 220/2016, 219/2016, 238/2016. Insofar as FIR no.144/2016 is concerned, it was registered on 12th July 2016; FIR no.152/2016 on 13th July 2016; FIR no.219/2016 on 11th August; FIR no.220/2016 on 12th August 2016; and 238/2016. Of these five FIRs, detenu has secured bail from court of competent jurisdiction in two FIRs viz. 144/2016 and 220/2016 on 30th January 2017 and 4th February 2017 respectively. That being the position, detaining authority was not wrong in saying that there is every likelihood of detenu to be admitted to bail and in case detenu gets released there is well- founded apprehension that he may again indulge in similar activities, which are prejudicial to the maintenance of public order inasmuch as in view of his profile and involvement in aforesaid cases, his activities have been rightly said to be highly prejudicial to the maintenance of public order. The expression "likelihood of being admitted to bail" connote chances of detenu being bailed out not only in one case but in other cases as well, HCP no.77/2017 Page 7 of 8 8 which have been registered against detenu. The word "likelihood" shows it can be either way. So without taking any such risk, if on the facts and circumstances of each case, the type of crime to be dealt with under the criminal law, including bail application, each separately or all this compositely, all would constitute to be relevant material for arriving at any conclusion. Thus, it may be legitimately possible in a given case for detaining authority to draw inference that there is 'likelihood' of detenu being admitted to bail. Having said so, the contention of learned counsel for petitioner that detention order shows non-application of mind on part of detaining authority, is specious.
11. Having regard to the above discussion, the petition fails and is, accordingly, dismissed.
12. Detention record be returned to counsel for respondents.
( Sanjeev Kumar ) Judge Srinagar 1st September 2017 Ajaz Ahmad HCP no.77/2017 Page 8 of 8