Jammu & Kashmir High Court - Srinagar Bench
Khawer Sultan Mir vs Ut Of J&K & Anr on 1 June, 2022
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl ) No. 278 /2021
Reserved On : 24.05.2022
Pronounced : 01. 06.2022
Khawer Sultan Mir
......Petitioner(s)
Through: Mr.Ashiq Hussain , Advocate
Versus
UT of J&K & Anr.
.....Respondent(s)
Through: Mr. Asif Maqbool, Dy. AG
CORAM: HON'BLE MR JUSTICE M.A.CHOWDHARY, JUDGE
JUDGEMENT
1. District Magistrate, Pulwama - respondent no.2 herein (for brevity "detaining authority"), with the purpose of preventing petitioner Khawer Sultan Mir S/O Mohammad Sultan Mir R/O Drangbal Pampore District Pulwama (for short "detenu") from acting in any manner prejudicial to the security of the State, vide Order No.21/DMP/PSA/21 dated 06.05.2021, placed detenu under preventive detention and directed his lodgement in Central Jail, Jammu. It is this order, of which petitioner is aggrieved and impugned it on the grounds mentioned in petition on hand.
2. The case set up in petition on hand is that detenu was arrested on 05.11.2020 by Police Station, Pampore, Pulwama and was lodged at Central Jail Srinagar for almost one year, implicated in case FIR No.86/2020 under Sections 18,20 and 38 UA (P) Act and FIR No. 90/2020 U/Ss 302,307,IPC, 7/27 Arms Act, 16,18,20, and 38 UA(P) WP (Crl) 278/2021 Page 1 Act and later shifted to Central Jail Jammu to be detained under Preventive Custody in terms of impugned order.
3. Counter affidavit has been filed by respondents, vehemently resisting the petition.
4. I have heard learned counsel for parties and considered the matter. I have gone through the detention record made available by counsel for respondents.
5. It would be apt to say that right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person in terms of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, (1978 AIR SC 597), is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment.
6. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(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 WP (Crl) 278/2021 Page 2 sentenced to imprisonment by a competent court. Its aim and object are to save the society from 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 massive damage to life and property. It is, for that reason, necessary to take preventive measures and prevent a person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) Constitution of India, therefore, leaves scope for enactment of preventive detention law.
7. 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. The basis of detention is satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha v. State of W.B. (1975) 3 SCC 198, was pleased to hold that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished upon proof of his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent.
WP (Crl) 278/2021 Page 3
8. Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect 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 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 upon 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 swayed by passion of mercy. It is the obligation of the Court to constantly remind itself the right of society is never maltreated or marginalised by doings, an individual or set of individuals propagate and carry out.
9. Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee safeguards to detenu, to be WP (Crl) 278/2021 Page 4 informed, as soon as may be, of grounds on which order of detention is made, which led to 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 enabling him to make a representation, which on being considered, may obtain relief to him. Detention record, produced by counsel for respondents, divulges 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.
10.Perusal of „Execution Report‟ of detention order depicts its execution. It is mentioned therein that in compliance to District Magistrate, Pulwama‟s detention order, SI Sammer Ahmad of DPL Awantipora took over custody of detenu for execution. Execution Report of detention order also reveals that contents of detention warrant and grounds of detention had been read over and explained to detenu in Urdu and Kashmiri languages, which he fully understood and it was in lieu thereof that he subscribed his signatures on the Execution Report. It also divulges that detenu was informed that he can make representation to government as well as detaining authority. 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 the authority to exercise its powers under WP (Crl) 278/2021 Page 5 Section 8 of J&K Public Safety Act, 1978, and record subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State.
11.Learned counsel for petitioner has stated that the allegations/grounds of detention are vague and the instances and 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.
12.It is not impertinent to mention here that the Supreme Court, in a number of decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining the person.
13.Glimpse of detention record produced by counsel for respondents would reveal that detenu is affiliated with banned terrorist organisation, Lashkar-e-Toiba (LeT) and Jiash-e- Mohammad outfit. It is mentioned in grounds of detention that in the month of Nov. 2020, Police Station, Pampore received information through reliable sources that some terrorists of banned terrorist organization of JeM/LeT, are hiding in the residential house of one Murshaleen Bashir S/O Bashir Ahmad Sheikh R/O Lalpora Chatlan Pampore Tehsil Pampore District Pulwama. Resultantly 50 RR, 110 Bn and 185 Bn. CRPF, personnel cordoned the area and the terrorists though their illegally acquired arms/ammunition with intention to kill, indiscriminately fired upon the cordoning party. The cordoning party retaliated and in the process two foreign terrorists were neutralized WP (Crl) 278/2021 Page 6 and detenue was arrested/caught during said encounter. Regarding the said incident case FIR No. 90/2020 U/Ss 302,307 IPC, 7/27 Arms Act and 38 UA (P) Act was registered in P/S Pampore.
14.Grounds of detention make mention that the detenue came under the influence of some mischievous and separatist elements under whose influence detenue became a separatist, radical and developed militant ideology and started to propagate the said ideology among the youth of the area.
15.Grounds of detention also mention that after investigation of the case FIR no. 90/2020 registered in P/S Pampore, which reveals that detenue after joining the terrorist ranks of banned terrorist Organization LeT have been indulging in effecting the programmes and plans of said terrorist organization. Detenue applied for the bail before the competent court of law where he may succeed in getting bailed out but letting the detenue at large would pose potential threat to the overall security scenario of the area and prevent Police/Security Forces to establish the writ of the State.
16. In such circumstances the activities as projected in the forgoing paras of the instant dossier run heavily against the detenue and are highly prejudicial to the security of the State. Being highly motivated to carry on the illegal designs, detenue are not likely to desist from indulging in antinational and antisocial activities and the normal laws are not sufficient to deter the detenue from indulging in such activities. Thereore, in order to prevent him from indulging in such activities, which are prejudicial to the Security of the State is necessary to detain the detenue by invoking the provisions of J&K Public Safety Act, WP (Crl) 278/2021 Page 7 1978. This 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. This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenu from engaging in activities prejudicial to security of the State or maintenance of public order. In this regard I am fortified by law laid down by the by the Supreme Court in State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216; State of Punjab v. Sukhpal Singh (1990) 1 SCC 35; Union of India v. Arvind Shergill (2000) 7 SCC 601; Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 9 SCC; and Subramanian vs. State of T.N. (2012) 4 SCC 699.
17.It may also not be out of place to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person. 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 WP (Crl) 278/2021 Page 8 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, observed:
"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.
34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of W.B., Ashim Kumar Ray v. State of W.B.; Abdul Aziz v. District Magistrate, Burdwan and DebuMahato 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."
18.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 WP (Crl) 278/2021 Page 9 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 Anr v. Nabila and another (2015) 12 SCC 127.
19. The Supreme Court in the case of Debu Mahato v. State of W.B. (1974) 4 SCC 135, has held 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". 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 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 WP (Crl) 278/2021 Page 10 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 after an encounter 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.
20. If one looks at the acts, the J&K Public Safety Act, 1978, is designed for, is to prevent, the 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 WP (Crl) 278/2021 Page 11 be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The said views and principles have been reiterated by the Supreme Court in Gautam Jain v. Union of India another AIR 2017 SC 230.
21. For the foregoing discussion, the petition sans any merit and is, accordingly, dismissed. Detention record be returned to counsel for respondents.
SRINAGAR 01.06.2022 "Mujtaba "
( M.A.CHOWDHARY) JUDGE SYED MUJTABA HUSSAIN 2022.06.03 06:00 WP I attest to the (Crl) 278/2021 accuracy and Page 12 integrity of this document