Jammu & Kashmir High Court - Srinagar Bench
Tanveer Ahmad Malik vs Union Territory Of J&K And Another on 7 February, 2022
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through Virtual Mode)
WP(Crl) No. 141/2021
Reserved on : 28.01.2022
Pronounced on : 07.02.2022
Tanveer Ahmad Malik ....Petitioner(s)
Through :- Mr. B.A. Tak, Advocate
V/s
Union Territory of J&K and another ....Respondent(s)
Through :- Mr. M.A. Chashoo, AAG
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
1. District Magistrate, Anantnag, has, vide detention Order bearing No. 32/DMA/PSA/DET/2021 dated 13.08.2021 placed Tanveer Ahmad Malik S/o Ab. Gani Malik R/o Wani Mohalla Dooru District Anantnag (detenu) under preventive detention and directed his lodgement in Central Jail, Kotbhalwal, Jammu. It is this order, petitioner has challenged in this petition and seeks quashment thereof on grounds averred therein.
2. Counter affidavit has been filed in opposition to the petition and also detention record has been produced.
3. Heard learned counsel for the parties and considered the matter.
4. Learned counsel for the petitioner has, to augment the case set up by the petitioner in the petition on hand contended that the order of detention impugned herein is illegal, unconstitutional and bad in the eyes of law which has been passed in breach of mandate of law. It is also averred that the detaining authority has not attributed any specific allegation against 2 WP(Crl) No. 141/2021 the detenue. Further, the detenue was not supplied the entire material so as to file an effective representation before the Government or the detaining authority. The petitioner further averred that the detention order has neither approved in time nor reference made to the Advisory Board within the stipulated period and even the advisory board has not given its opinion within the stipulated period as provided under the statute. It is also averred that the detaining authority has booked the detenue in case FIR No. 98 of 2020 under Sections 18, 20 & 38 of ULAP of Police Station, Dooru in which the detenue was already under custody of the police, therefore, there is no question of passing the impugned detention order. Further contended that the detenue has not applied for bail in the FIR No. 98/2020 nor the bail was granted by the competent authority in favour of the detenue, therefore, there was no requirement of passing the detention order.
5. Per contra, learned counsel for the respondents insists that detention order has been passed on subjective satisfaction by the detaining authority and detention order is in accordance with law and there is no violation or infringement of rights guaranteed under the Constitution of India. Hence, he exhorts dismissal of petition.
6. Given the case set up and submissions made by learned counsel for the parties, it is apt to mention that whether a person, who is in jail, can be detained under preventive detention law, has been a subject matter of consideration before the Supreme Court very often. In Dharmendra Suganchand Chelawat & anr. V. Union of India, AIR 1990 SC 1196, the Supreme Court, while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, 3 WP(Crl) No. 141/2021 Burdwan, AIR 1964 SC 334; Masood Alam v. Union of India, AIR 1973 SC 897; Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508; Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC 1130; Ramesh Yadav v. District Magistrate, Etah, AIR 1986 SC 315; Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177; Binod Singh v. District Magistrate, Dhanbad, AIR 1986 SC 2090; Smt Shashi Aggarwal v. State of U.P., AIR 1988 SC 596, and came to the conclusion that an order for detention can be passed against a person in custody and for that purpose, it is necessary that grounds of detention must show that (i) detaining authority was aware of the fact that detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before detaining authority on the basis whereof it may be satisfied that (a) detenu is likely to be released from custody in near future, and (b) taking into account the nature of antecedent activities of detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
7. 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 4 WP(Crl) No. 141/2021 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. Perusal of overleaf of detention order depicts its execution. A perusal of the execution report signed by the detenu reveals that one ASI Manzoor Ahmad took the custody of the detenu. It further reveals that PSA detention order has been executed on 19.08.2021 and contents of detention warrant and grounds of detention have been read over to the detenue in English and explained him in Urdu/Kashmiri language which the detenue understood fully in lieu of which his signature has been obtained. It further reveals that detention order (01leaf), Notice of detention (01 leaf), grounds of detention (02 leaves), Dossier of detention (03 leaves) Copies of FIR, Statements of witnesses and other related relevant documents (17 leaves) (Total 24 leaves) have been handed over to the above said detenue at Central Jail Jammu Kot Bhalwal on 19.08.2021 against proper receipt. It also divulges that detenue was informed that he can make representation to the Government and detaining authority. The grounds of detention are definite, proximate and free from any ambiguity. The 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 J&K Public Safety Act 1978 and record subjective satisfaction that detenu was required to be placed under 5 WP(Crl) No. 141/2021 preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State.
8. 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. 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 the 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 the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent 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 6 WP(Crl) No. 141/2021 itself the right of society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out.
9. The grounds of detention reveals that the detenue has been indulging in anti national and criminal activities and remained in contact with anti national elements, thereby creating a feeling of insecurity, pain and fear in the minds of general public. The grounds of detention further reveals that the detenue has been working as OGW with terrorist organization "Kashmir Tigers" and providing shelter/logistic support and information regarding movement of security forces to the militants particularly one Altaf Shah. It further reveals that the detenue is working on the directions of militants whose aim is to disrupt the peaceful atmosphere and to secede the UT of Jammu and Kashmir from rest of the country and his immediate detention is warranted.
10. The law is well settled that this Court in proceedings under Article 226 of the Constitution is limited to scrutinizing whether the detention order has been passed on the material placed before it, it cannot go further and examine the sufficiency of the material. This Court does not sit in appeal over the decision of detaining authority. This Court cannot substitute its own opinion over that of detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. The Court can only examine the 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 detenue from engaging in activities prejudicial to the security of the State and public order. In this regard I am fortified by decisions rendered by the Supreme Court in State of Gujarat vs. Adam Kasam Bhaya (1981) 4 SCC 216; State of Punjab vs. Sukhpal Singh 7 WP(Crl) No. 141/2021 (1990) 1 SCC 35; Union of India vs. Arvind Shergill (2000) 7 SCC 601; Pebam Ningol Mikoi Devi vs. State of Manipura, (2010) 9 SCC; and Subramanian vs. State of T.N. (2012) 4 SCC 699.
11. 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 the requisite satisfaction for detaining the person. 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.
12. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127.
8 WP(Crl) No. 141/2021
13. The Supreme Court in Debu Mahato v. State of W.B. case (supra), observed that while ordinarily-speaking one act may not be sufficient to form the 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 Anil Dely v. State of W.B. case (supra). It was 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 case (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 apprehended with arms and ammunition, 9 WP(Crl) No. 141/2021 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.
14. 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 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. Recently, same views and principles have been reiterated by the Supreme Court in Gautam Jain vs Union of India and anr reported in AIR 2017 SC 230.
15. For the reasons discussed, the petition fails and is, accordingly, dismissed.
16. Detention record be returned to the learned counsel for respondents.
(Tashi Rabstan) Judge Jammu:
07.02.2022 Pawan Angotra Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No