Jammu & Kashmir High Court - Srinagar Bench
Hilal Rashid Khan vs Union Territory Of J&K And Another on 31 August, 2023
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
LPA no.279/2022
Reserved on: 29.08.2023
Pronounced on: 31.08.2023
Hilal Rashid Khan
....... Appellant (s)
Through: Mr. Shafqat Nazir, Advocate
V/s
Union Territory of J&K and another
.........Respondent(s)
Through: Mr Sajad Ashraf, GA
CORAM:
HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE
JUDGEMENT
Tashi Rabstan, J:
1. This Letters Patent Appeal is directed against the judgement and order dated 15th December 2022, passed by the learned Single Judge in a writ petition, being WP(Crl) no.120/2022, titled as Hilal Rashid Khan v. UT of J&K and another, and for setting-aside the same on the grounds tailored therein.
2. We have heard learned counsel for parties. We have gone through the writ record as also impugned judgement and considered the matter.
3. Assailing the impugned judgement, counsel appearing for appellanthas stated that learned Writ Court while passing impugned judgement has not appreciated and considered the grounds in writ petition in its right perspective inasmuch as in ground (v) of writ petition, appellant had challenged his detention order on the ground of there being no live and proximate link between the detention order and subversive activities attributed to him. While last illegal activity Page 1 LPA no.279/2022 alleged against appellant dates back to the year 2020, detention order does not mention any fresh illegal activity on the part of appellant to necessitate taking him into preventive detention. He also avers that the learned Writ Court also did not consider and appreciate the averment of writ petitioner that grounds of detention have no nexus with detenu.To cement this assertion, counsel for appellant has relied upon Sama Aruna v. State of Telangana (2018) 1 SCC 150. 3.1. The above averments of counsel for appellant are misconceived. The learned Writ Court has taken care of these submission of appellant while rendering judgement impugned. Perusal of grounds of detention reveals that exclusive subjective satisfaction has not been reached on the basis of FIRs, but there had been inputs, reports and material before the detaining authority which suggested that detenu was reportedly helping active terrorists in Lolab Valley to identify civil/PRI targets and his open roaming was an imminent threat to the pro-government entities residing in Lolab Valley. 3.2. The Supreme Court in the case of Debu Mahato v. State of W.B. (1974) 4 SCC 135, has categorically observed and said 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. (1974) 4 SCC 514. It was only a case of theft of railway signal material. Here too ―one act was held to be sufficient‖. 3.3. Similarly, in Israil S K 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.
3.4. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310 , a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient.
Page 2 LPA no.279/2022 3.5. 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.‖ 3.6. 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.
3.7. Similarly, where a 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 found continuously indulging in prejudicial activities since 2018, 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.
4. In furtherance of setting on the judgement impugned, counsel for appellant would aver that appellant had made a representation dated 22nd March 2022 against his detention order but it was not considered by respondents. Expeditious consideration of representation of detenu, according to counsel for petitioner, is an obligation cast upon respondents as stipulated by the Supreme Court in K. M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476. After saying this, counsel for appellant has to say that detaining authority is also obliged to expeditiously communicate to detenu as to whether his representation has been considered or not and failure to do so vitiates detention order. For fortifying this averment, reliance is stressed on a judgement dated 29th October 2021 passed by the Supreme Court in Criminal Appeal no.1301 of 2021 titled as Sarabjeet Singh Mokha v. The District Magistrate [2021 SCC Online SC 1019]. Counsel for appellant claims that this important aspect of the matter has not been appreciated and considered by the learned Writ Court.
Page 3 LPA no.279/2022 4.1. Again, above ground of challenge made use of by counsel for appellant as against judgement impugned is unfounded. The reason therefor is here. Perusal of writ petition reveals, as is claimed by appellant herein too, that he made a representation to respondents, which was not considered by them. Respondents, in their Reply Affidavit before the learned Writ Court, confuted preference of representation by detenu and its receival. Consequently, it had been obligatory upon appellant for disproving contents of Reply Affidavit to make an endeavour to file Rejoinder/Response to Reply Affidavit, which he, however, did not. By this, respondents' reply qua non- receipt of representation remained unrebutted. So, this has become an Achilles heel in the case of appellant against the respondents' stand. Resultantly, judgements relied upon by counsel for appellant also do not come to the rescue of appellant's case.
5. Another contention of counsel for petitioner is that the learned Writ Court has not appreciated and considered the submission of appellant that grounds of detention are verbatim copy of police dossier which clearly shows that detaining authority has not applied its mind to the available material but has made detention order mechanically. 5.1. This contention of counsel for appellant is specious. The learned Writ Court has addressed this issue in judgement impugned. At paragraphs 10, 11 and 12, the learned Writ Court has in detail and lucidly dealt all the aspects of the matter, including that the Writ Court, while examining the material which was made basis of subjective satisfaction of detaining authority, would not act as a court of appeal and find fault with the satisfaction on the ground that on the basis of material before detaining authority another view was possible. 5.2. It needs further elaboration here that responsibility for security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention. Having said so, 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 merits of administrative decision to detain a Page 4 LPA no.279/2022 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. It is often said and held that the Courts do not even go into the question whether the facts mentioned in 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 Courts and that is not the policy of law of preventive detention. This matter lies within the competence of Advisory Board.
6. Further contention of counsel for appellant is that detenu was not provided the material record and non-supply of such important material prevented detenu from making an effective representation but this important aspect of the matter was also not considered by the learned Writ Court. In continuation thereof, it is also averred that detenu was not provided all the material though his signatures were taken on some blank papers which is the practice of police authorities and that the learned Writ Court has wrongly arrived at a conclusion that the detenu has been furnished the requisite material. In absence of the specific affidavit of the person executing the order of detention it could not have been concluded that all the material relied upon by detaining authority has been supplied to detenu.
6.1. This assertion of counsel for appellant is fantastic and has no legs to stand on. Paragraph 7 of judgement impugned is eloquent. We have before us the copy of detention order submitted by counsel appearing for respondents. It, inter alia, contains ‗Execution Report' and ‗Receipt of Ground of detention & other relevant record '. Relevant portion of Execution Report is reproduced hereunder:
―Execution Report In compliance to District Magistrate Kupwara order No.05-DMK/PSA of 2022 dated 18.3.2022, I, SI Mushtaq Ahmad No.1656665-EXK of Police Station lalpora took the custody of Hila Rashid Khan S/o Ab. Rashid Khan.........
The detention order (01 leaf), Ground of detention (04) leaves, Dossier of detention (31) and other related documents (01) (Total 37 leaves) have been handed over to the above detenue......‖ Page 5 LPA no.279/2022 6.2. It is evident from perusal of Execution Report that all the material has been given to detenu. So, the procedural safeguard as was required of respondents has been followed and complied with. Resultantly, the learned Writ Court has rightly concluded that the contention of counsel for petitioner/appellant that the material has not been supplied to detenu is not sustainable.
7. Counsel for appellant also avers that learned Writ Court while passing impugned judgement has not considered the law referred to and relied by appellant and the judgements supplied during the course of arguments have not been made mention of by the Writ Court in impugned judgement.
7.1. This contention of counsel for appellant is flawed. The learned Writ Court at paragraph 13 has made it clear that judgements relied upon by counsel for appellant are not applicable to the facts and circumstances of the case.
8. Counsel appearing for appellant would also contend that learned Writ Court has erroneously placed reliance on the decision of the Supreme Court in Haradhan Saha v. State of West Bengal (1975) 3 SCC 198, as observations therein by the Supreme Court is not an unqualified dictum of law as the real import of the said decision has been explained in Rekha v. State of Tamil Nadu (2011) 5 SCC 244 . According to counsel for appellant, if ordinary law of the land can deal with a situation, recourse to preventive detention law will be illegal. Whenever an order under preventive detention law is challenged; one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. It is contended that the learned Writ Court has not appreciated this correct position of law as explained by the Supreme Court.
It is also a ground of challenge that appellant has geared up in the appeal that in paragraph 9 of impugned judgement, the learned Writ Court has upheld detention order against appellant on the basis of unwarranted and unsubstantiated assertion that the detenu is a Page 6 LPA no.279/2022 habitual offender and despite being arrested in various FIRs under relevant provisions of law, he has indulged in various activities which are prejudicial to security of the State. By further averring, that the learned Writ Court has given a goby to the very basic principles of law and has virtually determined the guilt of appellant in preventive detention proceedings and even the learned Writ Court has not appreciated the fact that appellant has been enlarged on bail in all the FIRs lodged against him and in none of those cases conviction has been recorded as of yet and there was neither occasion nor material available with the learned Writ Court to assume the role of a trial court and pronounce upon guilt of appellant.
8.1. The above contentions of counsel for appellant are misconceived. If the Government/detaining authority is able to satisfy that a person by himself or in association with other members habitually commits or attempts or abets such commission of offences punishable under Penal Laws, he can be detained in terms of the Act of 1978. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done but to prevent him from doing it.
8.2. It is pertinent to mention here that the assertion in the appeal that learned Writ Court has erroneously placed reliance on a decision in HaradhanSaha (supra) because real import of the decision therein has been explained in Rekha (supra), when looked into and analysed on the factual position and in view of the activities of detenu/ appellant mentioned in the grounds of detention, violating various provisions of RPC, I.A. Act, NDPS Act, continuousness and habituality in pursuing the same type of offences and prejudicial activities and taking note of the abundant factual details available in the grounds of detention and also of the fact that all the procedures and statutory safeguards have been fully complied with by the detaining authority, we are of the view that the decision in Rekha (supra) is not applicable to the case in hand.
9. It would be apposite to have glance of Section 8 of the Act of 1978. It reads:
Page 7 LPA no.279/2022 ―8. Detention of certain persons. -
(1) The Government may-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
(i) the security of the State or the maintenance of the public order;
.............................................. it is necessary so to do, make an order directing that such person be detained.
(2) any of the following officers, namely
(i) Divisional Commissioners,
(ii) District Magistrate, may, if satisfied as provided in sub-clause (i) and (ii) of clause [(a) or (a-1)] of sub-section (1), exercise the powers conferred by the said sub-sections.
(3) For the purposes of sub-section (1), [(a) Omitted.]
(b) "acting in any manner prejudicial to the maintenance of public order" means-
(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise, abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order; ....................................
(4) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.‖ 9.1. From plain reading of Section 8 (1) it comes to fore that the Government may, if it is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to security of the State or maintenance of public order, it is necessary so to do, make an order directing that such a person be detained. Sub- Rule (1) of Section 8 of Act of 1978, thus, emphatically, envisions that any person can be placed under preventive detention if the Government is satisfied with respect to such a person that with a view to preventing him from acting in any manner prejudicial to the Page 8 LPA no.279/2022 security of the State or maintenance of public order, it is essential to place such a person under preventive detention.
9.2. Subsection (3) of Section 8 of the Act of 1978 enumerates various prejudicial activities that would fall within the mischief of ―acting in any manner prejudicial to the maintenance of public order‖. It covers in its fold prejudicial activities in the nature of promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on the ground of religion, race, community or region. It also includes activities of making preparations for using or attempting to use or using or instigating inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order.Attempting to commit, or committing, or instigating, provoking or otherwise abetting commission of mischief where the commission of such mischief disturbs or is likely to disturb public order, comes within the meaning of activities in any manner prejudicial to the maintenance of public order. Acting in any manner prejudicial to maintenance of public order, also consists of attempting to commit or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more where the commission of such offence disturbs, or is likely to disturb public order.
9.3. Subsection (4) of Section 4 of the Act of 1978 envisions that when an order of detention is made, detaining shall report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after making thereof unless in the interregnum, it has been approved by the Government.
9.4. To see as to whether, in the present case, detaining authority has reported the fact concerning making of order of detention to the Government, we have gone through the detention record produced by counsel appearing for respondents. A communication bearing Page 9 LPA no.279/2022 no.DMK/PSA/2022/78 dated 18th March 2022, has been addressed by respondent no.2 (detaining authority) to Financial Commissioner (Additional Chief Secretary), Home Department, for approval of impugned detention order.
9.5. Detention record also comprises of a Government Order no.Home/PB-V/384 of 2022 dated 25th March 2022. By this order impugned detention order of detenu has been approved and the period of detention has been said to be determined on the basis of opinion of the Advisory Board.
9.6. In such circumstances, detaining authority had, immediately upon issuance of impugned detention order, reported the said fact to the Government and the Government approved impugned detention order. Thus, there is no hindrance in saying that provisions of Subsection (4) of Section 8 of the Act of 1978, have been strictly complied with by respondents.
10.Section 9 of the Act of 1978 provides that a detention order may be executed at any place in the manner provided for executing warrants of arrest. Section 10 envisions that any person in respect of whom a detention order has been made under Section 8 of the Act shall be liable to be detained in such a place and under such conditions including conditions as to maintenance of discipline and punishment for breaches of discipline as the Government may specify and that any person placed under preventive detention shall be liable to be removed from one place of detention to another place of detention.
11.Where a person has been detained in pursuance of an order of detention under Section 8 of the Act of 1978, made on two or more grounds, such order of detention, as envisaged under Section 10-A of the Act of 1978, shall be deemed to have been made separately on each of such grounds and as a consequence whereof, such an order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person.
12.Section 13 of the Act of 1978 says that when a person is detained in pursuance of a detention order, the authority making the order shall, Page 10 LPA no.279/2022 as soon as maybe, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him, in the language which is understandable to him, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order of detention. However, Subsection (2) of Section 13 emphatically mentions that nothing in subsection (1) of Section 13 shall require the authority to disclose facts which it considers to be against the public interest to disclose.
12.1. Given the Statutory and Constitutional requirements to be followed by respondents in the present case, as has also been noticed above, we have gone through the detention record produced by counsel for respondents. All the material relied upon by detaining authority had been furnished to detenu. He had been intimated to make a representation to both the Government and detaining authority. 12.2. Suitable to make mention here that Article 22 (5) of the Constitution of India casts a dual obligation on the detaining authority, viz.:
(i) To communicate grounds of detention to the detenu at the earliest;
(ii) To afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible.
12.3. The Supreme Court has reiterated that communication means bringing home to detenu effective knowledge of facts and grounds on which order of detention is based. To a person who is not conversant with English language, in order to satisfy requirement of the Constitution, must be given grounds in a language that he can understand and in a script that he can read, if he is a literate person. If a detained person is conversant with English language, he will naturally be in a position to understand gravamen of the charge against him and the facts and circumstances on which order of detention is based. So is the position in the present case.
Page 11 LPA no.279/2022 12.4. The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention. It has also, by way of limitations upon the freedom of personal liberty, recognised right of the State to legislate for preventive detention, subject to certain safeguards in favour of detained person, as laid down in Clauses (4) & (5) of Article 22. One of those safeguards is that detained person has a right to be communicated the grounds on which order of detention has been made against him, in order that he may be able to make his representation against the order of detention. In the circumstances of instant case, it has been shown that detenu had opportunity, which the law contemplates in his favour, for making an effective representation against his detention. He, however, did not avail of said opportunity.
13. Section 14, that follows Section 13, provides constitution of Advisory Board for the purposes of the Act of 1978, which shall comprise of a Chairman and members. Such a Chairman and members shall be appointed by the Government in consultation with the Chief Justice of the High Court. Section 15 says that in every case, where a detention order has been made under the Act of 1978, the Government shall within four weeks from the date of detention order, place before Advisory Board the grounds on which order of detention has been made; representation, if any, made by person affected by order of detention and in case where order of detention has been made by an officer, also report by such officer under subsection (4) of Section 8. After considering the material placed before the Advisory Board and after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if in any particular case the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the Government within six weeks from the date of detention.
14. In the present case detention record, on its perusal, would make it known that Advisory Board vide its Report dated 11th April 2022, Page 12 LPA no.279/2022 hadconveyed that grounds of detention formulated by detaining authority were sufficiently supported by dossier/material and that grounds of detention and other relevant material were furnished to detenu at the time of taking him into detention and that detenu was also informed about his right of making representation against his detention. However, no representation had been made by detenu and, therefore, there was no rebuttal to the grounds of detention formulated by detaining authority. The report of Advisory Board also reveals that all the requirements contemplated under the Act of 1978, have been complied with and no error of law or procedure, which would invalidate the detention, have been committed by detaining authority and as an outcome thereof, the detention is in conformity with the principles as enshrined under Article 22(5) of the Constitution of India and the provisions of the Act of 1978. The Advisory Board has opined that there is sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
14.1. It is by virtue of communication no.AB/PSA/2022/133 dated 11th April 2022, that the Advisory Board, transmitted its Report pertaining to detenu for further action. The Government, in exercise of powers conferred by Section 17(1) of the Act of 1978, vide Government Order no.Home/PB-V/959 of 2022 dated 9th May 2022 confirmed impugned order of detention.There is, thus, strict compliance of provisions of Section 14, 15, 16, and 17 of the Act of 1978. 14.2. In the present case, Advisory Board has furnished its Report opining disclosure of sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to maintenance of public order.
14.3. In view of above it is made clear here that the learned Writ Court, or for that matter this Court, cannot go into the question whether on the merits detaining authority was justified to make order of detention or to continue it, as if sitting on appeal. Thus, the learned Writ Court has rightly not interfered with the detention order. Reference in this regard is made to Bhim Sen v. State of Punjab, AIR 1951 SC 481; Gopalan Page 13 LPA no.279/2022 A.K. v. State of Madras AIR 1950 SC 27; Shibbanlal Saksena v. State of U.P., AIR 1954 SC 17; Hemlata Kantilal Shah v. State of Maharashtra, AIR 1982 SC; Sheoraj Prasad Yadav v. State of Bihar, AIR 1975 SC 1143; and Ram Bali Rajbhar v. State of W.B. AIR 1975 SC 623.
15. The power of preventive detention is a precautionary power exercised in reasonable anticipation and it may or may not relate to an offence.The basis of detention is satisfaction of Executive on a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and prevent him from doing same. 15.1. It is mentioned in grounds of detention that detenu has been indulging in illicit sale of narcotics and he is working at the behest of Pakistani terrorist of banned outfit Hizbul Mujahideen to raise funds for terrorist activities in Valley and is doing voluntarily and wilfully without any fear, and that despite his arrest in criminal cases, he did not stop and became one of a hardcore OGW who at eth best of his POK handler is providing all types of logistic support including transporting arms, ammunition and generating funds from illicit drugs from one place to another. Therefore, while taking into account past activities of detenu, detaining authority found it imperative and necessary to detain detenu inasmuch as preventing him from indulging in the said activities not with an object of punishing him for something he has done but to prevent him from doing it. Reference of FIRs in grounds of detention reflects and manifests awareness of detaining authority qua conduct and activities of detenu that he has indulged in. The order of detention has been passed by detaining authority as a precautionary measure based on a reasonable prognosis of the future behaviour of detenu based on his past conduct in light of surrounding circumstances much probability emerged warrant detention of detenu. Reference is worth to be made to Borjahan Gorey v. The State of West Bengal, (1972) 2 SCC 550; Debu Mahto v. The State of W.B., (supra); State of U.P. v. Durga Prasad, (1975) 3 SCC 210; Ashok Kumar v. Delhi Administration and others, AIR 1982 SC 1143; State of Maharashtra and others v. BhauraoPunjabrao Gawande, (2008) 3 SCC 613;
Page 14 LPA no.279/2022 Gautam Jain v. Union of India &anr., 2017 (1) JKLT 1 (SC); Union of India and another v. Dimple Happy Dhakad, AIR 2019 SC 3428 . 15.2. In the above backdrop it may be mentioned here that the purpose of J&K Public Safety Act, 1978, is to prevent the acts and activities 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 consequences. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in turmoil. 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.
16.It may not be out of place to mention here that 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 it to exercise its powers under Section 8 of the Act of 1978, and record subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him from his prejudicial activities.
16.1. In such circumstances, suffice it is to say that there had been 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. The role of detenu has been specifically described.
16.2. Even otherwise it is settled law that the Writ Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material. [State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216]. TheWrit Court does not sit in appeal over decision of detaining authority and cannot Page 15 LPA no.279/2022 substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. [State of Punjab v. Sukhpal Singh (1990) 1 SCC 35] 16.3. The Writ 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. [See:Union of India v. Arvind Shergill (2000) 7 SCC 601; PebamNingolMikoi Devi v. State of Manipura, (2010) 9 SCC; and Subramanian v. State of T.N. (2012) 4 SCC 699 ] 16.4. It may not be inappropriate 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. 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 and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order. In this regard the Constitution Bench of the Supreme Court in Haradhan Saha's case (supra), while considering various facets concerning preventive detention, has observed:
―.........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.
33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The Page 16 LPA no.279/2022 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."
17. One more submission was taken during course of advancing the arguments that criminal prosecution could not be circumvented or short-circuited by ready resort to preventive detention and power of detention could not be used to subvert, supplant or substitute punitive law of land. It was also urged that no material has been disclosed by detaining authority in grounds of detention to establish existence of any exceptional reasons justifying recourse to preventive detention inasmuch as implication of detenu in criminal offence(s) would suggest that these offences could be dealt with under the provisions of criminal law and if at all detenu would be found involved in the offence(s) after a full dressed trial before criminal court, the law would take its own course, and in the absence of such reasons before detaining authority, it was not competent to detaining authority to make order of detention bypassing criminal prosecution. This Page 17 LPA no.279/2022 argument completely overlooks the fact that the object of making an order of detention is preventive while object of a criminal prosecution is punitive. Even if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention, because, as pointed out by the Supreme Court in Subharta v. State of West Bengal, [1973] 3 S.C.C. 250, ―the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter‖, the order of detention would not be bad merely because criminal prosecution has failed. It was pointed out by the Supreme Court in that case that ―the Act creates in the authority concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general. This Jurisdiction is different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would therefore not operate as a bar to a detention order or render it mala fide‖. If the failure of criminal prosecution can be no bar to the making of an order of detention, a fortiori the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. If an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of inconvenience of proving guilt in a court of law, it would certainly be an abuse of power of preventive detention and detention order would be bad. But if object of making the order of detention is to prevent commission in future of activities, injurious to the community, it would be a perfectly legitimate exercise of power to make the order of detention. The Court would have to consider all the facts and circumstances of the case in order to determine on which side of the line the order of detention falls. The order of detention was plainly and indubitably with a view to preventing detenu from continuing the activities which are prejudicial to the maintenance of public order.
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18. In the above milieu, it would be apt to refer to the observations made by the Constitution Bench of the Supreme Court in the case of The State of Bombay v. Atma Ram Shridhar Vaidya AIR 1951 SC 157 . The paragraph 5 of the judgement lays law on the point, which is profitable to be reproduced infra:
―5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community ......... it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Page 19 LPA no.279/2022 Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government.‖
19. In the light of aforesaid position of law settled by the Six-Judge Constitution Bench, way back in the year 1951, the scope of looking into the manner in which subjective satisfaction is arrived at by detaining authority, is limited. The Writ Court, while examining the material, which is made basis of subjective satisfaction of detaining authority, would not act as a ‗court of appeal' and find fault with the satisfaction on the ground that on the basis of material before detaining authority, another view was possible.
Resultantly, the judgements cited by counsel appearing for appellant, viz. Rekha v. State of Tamil Nadu (supra); K. M. Abdulla Kunhi v. Union of India (supra); Sarabjeet Singh Mokha v. The District Magistrate (supra); Manzoor Ahmad Mir v. Union Territory of J&K and others, WP(Crl) no.85/2022 decided on 19.10.2022; Rameez Mohi-ud-din Lone v. State of J&K, HCP no.213/2018 decided on 14.12.2018; Raziya Umar Bakshi v. Union of India, 1980 AIR SC 1751; Sama Aruna v. State of Telangana (supra); G. M. Shah v. State of J&K, 1980 (1) SCC 132; Rajinder Arora v. Union of India, (2006) 4 SCC 796; Dr.Rahamatullah v. State of Bihar, (1981) 4 SCC 559; Jahangir Ahmad Bhat v. Government of J&K and anr., 2022 (6) JKJ [HC]; Farooq Ahamd Bhat v. Union Territory of J&K &ors., 2021 (3) JKJ [HC] 319; Yudhvir Singh v. Union Territory of J&K &ors., 2022 (4) JKJ [HC] 138; Naba Lone v. District Magistrate &anr., 1988 SLJ 300; Jahangirkhan Fazalkhan Pathan v. Police Commissioner, Ahmedabad &ors., 1989 (3) SCC 590, do not offer any aid and assistance to the case set up by petitioner.
20. Relevant to say here that 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 Page 20 LPA no.279/2022 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 maintenance of 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.
21.Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand, and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black-marketing activities, etcetera demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.
22.In considering and interpreting preventive detention laws, the Courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity-- an unhappy necessity--was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the Court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification. It is well settled that if detaining authority is satisfied that taking into account 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 Page 21 LPA no.279/2022 activities.[See:State of W.B. v. Ashok Dey, (1972) 1 SCC 199;Bhut Nath Mete v. State of W.B., (1974) 1 SCC 645;ADM v. Shivakant Shukla (1976) 2 SCC 521; A. K. Roy v. Union of India, (1982) 1 SCC 271; Dharmendra SuganchandChelawat v. Union of India, (1990) 1 SCC 746; Kamarunnisa v. Union of India and another, (1991) 1 SCC 128; Veeramani v. State of T.N. (1994) 2 SCC 337; Union of India v.
Paul Manickam and another, (2003) 8 SCC 342;
andHuidromKonungjao Singh v. State of Manipur and others, (2012) 7 SCC 181].
23.Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so, the Supreme Court in the case of Naresh Kumra Goyal v. Union of India and others, (2005) 8 SCC 276, and ingeminated by the Supreme Court in Dimple Happy Dhakad, (supra), has held that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent antisocial and subversive elements from imperilling welfare of the country or security of the nation or from disturbing public tranquillity or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.
24.To sum up, a law of preventive detention is not invalid because it prescribed no objective standard for ordering preventive detention, and leaves the matter to 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 that 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 State, or maintenance of public order, or Page 22 LPA no.279/2022 essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention. Having said that, 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 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. It is often said and held that the Courts do not even go into the question whether the facts mentioned in 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 courts and that is not the policy of law of preventive detention. This matter lies within the competence of Advisory Board. It is made clear here this Court or the Writ Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant.
25.When impugned judgement is analysed in the backdrop of submissions made by counsel for appellant, it is vividly conspicuous that the learned Writ Court has given comprehensive, lucid and eloquent judgement. The Writ Court has discussed and set at rest all facets of the matter. Resultantly the appeal fails.
26.In view of above, we are not inclined to interfere in the Writ Court judgement as no case is made out in this regard and as a consequence of which the appeal is dismissed.
(Rajesh Sekhri) (Tashi Rabstan)
Judge Judge
Srinagar
31.08.2023
Ajaz Ahmad, PS
Whether approved for reporting? Yes/No.
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