Jammu & Kashmir High Court - Srinagar Bench
Rayees Ahmad Sofi vs Union Territory Of J&K And Anr on 31 August, 2022
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP (Crl) No. 31/2022
Reserved on: 02.08.2022
Pronounced on: 31.08.2022
Rayees Ahmad Sofi
.......Petitioner
Through: Mr. B. A. Tak, Advocate
Vs
Union Territory of J&K and Anr.
...............Respondent(s)
Through: Mr. Asif Maqbool, Dy. AG
CORAM: Hon'ble MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGEMENT
1. District Magistrate, Shopian-respondent No.2 herein (for brevity "Detaining Authority"), with the purpose of preventing Rayees Ahmad Sofi son of Ghulam Qadir Sofi resident of Gagren, Tehsil & District Shopian (for short "detenue") from acting in any manner prejudicial to the maintenance of public order, by Order No.95/DMS/PSA/2022 dated 24.01.2022, placed him under preventive detention and directed his lodgement in Central Jail Kot Bhalwal, Jammu. It is this order, of which petitioner is aggrieved of and challenges it on the grounds enumerated in writ petition.
2. The case set up in the petition is that detenue was arrested on 08.12.2021, by the Police Station, Shopian and falsely implicated in FIR No. 296/2021 punishable under Section 148,149,336,307,353 IPC and subsequently, the detenue was taken into preventive detention in terms of Order No.95/DMS/PSA/2022 dated 24.01.2022; he was arrested without any justification and implicated in the aforesaid FIR; the Detaining Authority has not followed the Constitutional and statutory safeguards as provided under Article 22 (5) of the WP(Crl) No. 31/2022. Page 1 of 7 Constitution; that no specific allegation were attributed to the detenue and the grounds prepared for the detention of the detenue are vague and non-existent in the eyes of law and same deserve to be quashed and set aside; that the relevant material such as FIR and other documents have not been furnished to the detenue with the result the detenue could not file a representation before the Government or the Detaining Authority for revocation of the detention order.
3. Counter affidavit has been filed by respondents, resisting the claim of the petitioner.
4. Heard learned counsel for parties, considered the matter and perused the detention record made available by Mr. Asif Maqbool, learned Dy. Advocate General.
5. Learned counsel for petitioner has stated that the allegations/grounds of detention are vague and the cases reported against the detenue in, the grounds of detention have no nexus with detenue and have been fabricated by police in order to justify its illegal action of detaining the detenue.
6. The concept of preventive detention is not to punish a person 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 detenue, 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, points out 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 WP(Crl) No. 31/2022. Page 2 of 7 case, a person is punished to prove 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.
7. Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee safeguard to detenue to be informed, as soon as may be possible, 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. Detenue is to be furnished with sufficient particulars enabling him to make a representation, which, upon being considered, may obtain relief to him.
8. Detention record, produced by counsel for respondents, divulges that detention order was made on proper application of mind. The detenue was delivered, at the time of execution of detention order, the material and grounds of detention and was informed also that he had a right to represent against his preventive detention.
9. Perusal of „Execution Report‟ of detention order depicts that in compliance to District Magistrate, Shopian‟s detention order, SI Mohammad Yousuf no.01/SPN of Police Station Shopian, took custody of detenue from Police Station Shopian. Execution Report of detention order also reveals that contents of detention warrant and grounds of detention had been read over and explained to detenue in the language which he fully understood and it was in lieu thereof that he subscribed his signatures on the Execution Report. It also divulges that detenue 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 WP(Crl) No. 31/2022. Page 3 of 7 grounds of detention are definite, proximate and free from any ambiguity. Detenu has been informed with sufficient clarity what actually weighed with the Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made the authority to exercise its powers under Section 8 of J&K Public Safety Act, 1978, and record subjective satisfaction that detenue was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
10.It is worth 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 a person.
11.The detention record produced by counsel for respondents reveals that detenue is instrumental in arranging horde of innocent youth and made them believe that by resorting to stone-pelting, associated with other violent means can bring about the goals of freedom from India. The acts of the detenue have hijacked the peace, stability and tranquillity of the district. Being a staunch and hardcore stone-pelter, detenue act as a lead role for the stone pelters and motivates the youth for indulging in stone pelting against the security forces/police camps and on Government establishments. The detenue was repeatedly warned to abstain from such practices through every possible means but he did not pay any heed to such warnings. The grounds of detention further reflects that on 08.12.2021, in view of ongoing encounter between the terrorists and police/SFs in Chek-i-Cholin, Shopian, a violent mob led by the detenue and his associates pelted stones with the police/SFs with the intention to kill them and to provide safe passage to the holed- up terrorists, which badly affected the ongoing anti-terrorist operation. WP(Crl) No. 31/2022. Page 4 of 7 Grounds of detention also mention the commission of offences punishable under Sections 148, 149, 336, 353, 307 IPC. Detailed incidents have also been quoted in grounds of detention for issuance of impugned detention order.
12.In such circumstances, suffice is to say that there had been material before the Detaining Authority to come to the conclusion arrived at and it cannot and be said that subjective satisfaction of detaining authority was wrongly arrived at or grounds of detention are self-contradictory or vague. Detenu‟s role is specifically described in grounds of detention. This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation had in view, that is, to prevent detenue 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 KasamBhaya (1981) 4 SCC 216; State of Punjab v. Sukhpal Singh (1990) 1 SCC 35; Union of India v. Arvind Shergill (2000) 7 SCC 601; PebamNingolMikoi Devi v. State of Manipura, (2010) 9 SCC; and Subramanian vs. State of T.N. (2012) 4 SCC 699.
13.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 WP(Crl) No. 31/2022. Page 5 of 7 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 HaradhanSaha'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."WP(Crl) No. 31/2022. Page 6 of 7
14. For the foregoing discussion, the petition is without any merit, therefore, dismissed.
15. Detention record be returned to counsel for respondents.
(MOKSHA KHAJURAI KAZMI) JUDGE Srinagar 31.08.2022 Abdul Rashid, PS Whether the Judgment is reportable Yes/No. WP(Crl) No. 31/2022. Page 7 of 7