Jammu & Kashmir High Court
Shakir Hussain vs State And Ors. on 16 May, 2001
Equivalent citations: 2002CRILJ1203
Author: R.C. Gandhi
Bench: R.C. Gandhi
ORDER R.C. Gandhi, J.
1. The petitioner by means of this petition seeks issuance of writ of Certiorari to quash Detention Order No. PSA/DM/JC/01/DODA dated 18-3-2001 issued by respondent No. 2 and the grounds of detention prepared by the detaining authority. He further seeks an interim direction to the respondents not to implement the detention order and to restrain them from taking the petitioner in preventive custody on the basis of detention order.
2. Respondents having found the petitioner involved in subversive activities, in connivance with the militants of the outlawed outfit H.M., with the purpose to carry out militant activities in furtherance of the aims of the said outfit which can prove hazardous, devastative and dangerous to the security of the State of J. and K. and nation as well, have directed the preventive detention of the petitioner. In the grounds of detention, it has been recorded that the petitioner has his links with militants of HM outfit being their sympathiser/financier/supporter/motivator and carries his activities in furtherance of the direction of HM outfit.
3. The grounds of challenge are that the petitioner is a contractor by profession and he is not involved in the alleged activities attributed towards the petitioner in the grounds of detention. The petitioner has not yet been taken in preventive custody pursuant to the detention order but has managed to get a copy of grounds of detention which is annexed with the petition. The petitioner's character antecedents have been certified by the Senior Superintendent of Police vide his letter dated 8-10-1999 addressed to the District Magistrate, Doda that there is nothing adverse against the petitioner. Despite that respondents have coined false grounds to involve the petitioner in alleged subversive activities. The grounds are false and vague. The detaining authority has no jurisdiction to detain the petitioner on the basis of such grounds. Therefore, the detention order is liable to be quashed.
4. I have perused the grounds of detention. No subversive activity has been attributed towards the petitioner till 8-10-1999, the date of issuance of the letter by the Senior Superintendent of Police, Doda. The activities noticed in the grounds of detention are based on secret reports received by the respondents only after 8-10-1999. The grounds of detention prima facie do not appear as vague or false. I refrain to comment on the nature and character of the grounds of detention as projected by the learned counsel for the petitioner as it will affect the case of the parties while determining the correctness and legality of the detention order.
5. The question before the Court herein is whether the petitioner, without surrendering or having been taken in preventive custody pursuant to detention order, is entitled to seek quashment of the detention order. Learned counsel for the petitioner has sterenuously urged relying upon the judgment of the Supreme Court reported in (1992) Supp 1 SCC 496 and AIR 2001 SCW 463 : 2001 Cri LJ 463 to impress upon the Court to quash detention order as the grounds are vague, false and carved out for his preventive detention. The controversy with regard to the disputed question of setting aside the detention order at predetention stage, as sought for in this petition and to seek direction for not arresting the petitioner pursuant to detention order, has been settled by the Supreme Court. In Additional Secretary to the Government of India v. Smt. Alka Subash Gadia 1992 Supp (1) SCC 496 while dealing with a similar proposition on facts and law, before the execution of the warrant seeking to set asid the detention order, the Supreme Court has observed as under :-
30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. 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 interest 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. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person (sic) 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 while 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 executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly and this is more important, it is not correct to say that the Courts have no power to entertain grievances against any detention 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, viz. where the Courts are prima facie satisfied; (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 authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the 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.
31. Lastly, it is always open for the detenu or anyone on his behalf to challenge the detention order by way of habeas corpus petition on any of the grounds available to him. It is not, therefore, correct to say that no judicial review of the detention order is available. In the view we are taking which applies also to the cases under other laws, the stage at which the judicial review is made by the Court only stands deferred till after the order is executed. A ground on which a detention order is challenged which requires investigation and cannot be adjudicated without hearing the other side and without proper material, has necessarily to await decision till the final hearing. In such cases the operation of the order of detention by its very nature cannot be stayed pending the final outcome. The only proper course in such cases is to hear the petition as expeditiously as possible.
32. This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first instance, as stated earlier, the Constitution and the valid law made thereunder do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the Courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execu-tion stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasises the fact that the Courts have power to interfere with the detention orders even at the pre-execution stage, but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles.
33. To the extent that the decision of this Court in S.M.D. Kiran Pasha v. Government of A.P. (1990) 1 SCC 328 and the decisions of all the High Courts are contrary to or inconsistent with the view taken by us above, they will be deemed to have been disapproved and overruled.
34. In the present case, admittedly the proposed detenu is absconding and has been evading the service of the detention order. Respondent. I who is his wife has sought to challenge the said order because the show cause notice under Sub-Section (1) of Section 6 of the SAFEMA is issued to him, a copy of which is also sent to her. Thus the assistance of the High Court under Article 226 of the Constitution is sought by respondent 1 on behalf of the detenu to secure the order of detention with a view to defend the proceedings under the SAFEMA. In other words, the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further, he is also trying to secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits to the order of the detention. No prima facie case is made out either before the High Court or before us for challenging the order of detention which would impel the Court to interfere with it at this pre-execution stage.
6. In Union of India v. Muneesh Suneja reported in 2001 AIR SCW 463 : 2001 Cri LJ 1069 in similar circumstances, the Supreme Court ruled as under :-
This Court has been categorical that in matters of pre-detention cases interference of Court is not called for except in the circumstances set forth by us earlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order. For mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Additional Secretary to the Government of India v. Smt. Alka Subash Gadia 1992 Supp (1) SCC 496 (supra) and Sayed Taher Bawamiya v. Joint Secretary to the Government of India (2000) 8 SCC 630 : 2002 Cri LJ 259 (supra) we hold that the order made by the High Court is bad in law and deserves to be set aside.
7. In Union of India v. Parasmal Rampuria (1998) 8 SCC 402 : 1998 AIR SCW 2292 para 5 of the Judgment the Supreme Court while-dealing with similar proposition of law has pronounced that:-
5. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits....
However, the fact remains that the detention order dated 13-9-1996 has still not been executed and the respondent has not surrendered. Under these circumstances, in our view, it will be appropriate to direct that the ad interim relief which is extended from time to time by the Division Bench of the High Court and which was continued all throughout, shall stand vacated. We also vacate the further orders of extension of interim relief and direct the respondent to surrender in the light of the detention order. After surrendering it will be open to the respondent to amend his writ petition and to take all permissible legal grounds to challenge the detention order and these grounds will have to be considered by the High Court on their own merits after hearing the parties.
8. The petitioner has neither surrendered before the Court nor any assurance has been offered by the learned counsel for the petitioner that petitioner will surrender before the detaining authority. Therefore, in view of the above proposition of law, the petitioner at the pre-detention stage is not entitled to seek the r 3:37 PM 1/28/2006elief of quashing the detention order and Interim bail. Accordingly, the petition fails and is dismissed.