Jammu & Kashmir High Court - Srinagar Bench
Manzoor Ahmad Dar vs State Of J&K And Others on 21 November, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
HCP no.32/2019
Reserved on: 24.10.2019
Pronounced on: 21.11.2019
Manzoor Ahmad Dar
.......Petitioner(s)
Through: Mr Shafqat Nazir, Advocate
Versus
State of J&K and others
.....Respondent(s)
Through: Mr Sajad Ashraf, GA
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDGEMENT
1. Challenge in this petition is thrown to the Order no.04-DMK/PSA of 2019 dated 14.01.2019, passed by District Magistrate, Kupwara (for short "detaining authority"), placing one Manzoor Ahmad Dar son of Khazir Mohammad Dar resident of Sahipora Kralgund District Kupwara (for brevity "detenu") under the preventive detention to prevent him from acting in any manner prejudicial to the maintenance of security of the State.
2. The case set up in the petition is that the detenu was arrested by police/security forces without any justification and taken to police station Handwara, where he was kept in custody for several days and thereafter placed under preventive detention vide impugned order of detention.
3. The counter affidavit has been filed by the respondents, vehemently resisting the petition. The detention record has also been produced by the learned counsel for the respondents to substantiate the assertions made in the reply affidavit.
4. Having heard the learned counsel for the parties and perused the detention record made available by the learned counsel for the respondents, I am of 2 HCP no.32/2019 the considered view that the challenge of the petitioner must fail for the reasons adumbrated hereinafter.
5. Learned counsel for the petitioner contends that the impugned order of detention is unconstitutional, illegal and bad in law inasmuch as the detaining authority has not followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution of India. It is contended that the grounds of detention, served upon the detenu, are vague, uncertain, untrue, baseless and ambiguous, and no prudent man can make a representation against such allegations. Therefore, the passing of the detention on such grounds is unjustified and unreasonable. It is also stated that neither the copies of FIR and other material have not been furnished to the detenu to enable him to make a representation. The learned counsel has further contended that the subjective satisfaction has not been derived by the detaining authority itself which is sine quo non for passing the order of detention and that the grounds of detention are copy paste of the dossier prepared by the Senior Superintendent of Police concerned. The detaining authority has only acted as a rubber stamp of sponsoring agency, which reflects non-application of mind as also abuse of authority vested in the Detaining Authority. He also urges that the grounds of detention do not disclose any eminent threat to the health, wealth and welfare of the society or for that matter the security of the State and that the detaining authority has not specified the authority before whom the representation has to be made. In support of his submissions, learned counsel has placed reliance on Makhan Singh Tarsikka v. State of Punjab of Punjab, AIR 1952 SC 27; Naseer Ahmad Sheikh v. Addl. Chief Secretary Home & anr, 1999 SLJ 241; Shahmali v. State and others 2010(I) SLJ 56.
6. While opposing the writ petition, the learned counsel for the respondents has argued that the detention order does not suffer from any legal infirmity and that the grounds of detention sufficiently connect the detenu with the activities, which are highly prejudicial to the maintenance of the security of the State. He has also contended that the material relied upon by the detaining authority has been furnished to detenu, besides the grounds of 3 HCP no.32/2019 detention along with the detention order was supplied to detenu against proper receipt. To cement his averments, learned counsel has referred to the judgements rendered in the cases of State of Bombay v. Atma Ram Shridhar Vaidya, AIR 1951 SC 157; Shiv Ratan Makim v. Union of India and others, (1986) 1 SCC 404; Senthamilselvi v. State of T.N. and another, (2006) 5 SCC 676.
7. Before adverting to the case in hand, it would be worthwhile to have quick look at the evaluation of law relating to liberty of citizens and its deprivation by the State. It is seen that with the evolution of the mankind from the primitive stage to the stage of the social welfare state, the administration of the criminal law assumed great importance. As long as the human beings were God-fearing and had faith that their actions were being watched by the Almighty, the need for the administration of the criminal justice was not felt. However, with the passage of time and the people becoming more materialistic, a section of the society comprising of misguided and disgruntled human beings lost faith in the Almighty and started thinking that their actions could not be seen by anybody. These misguided persons' indulgence in the criminal activities, led to the necessity to have an administration of the criminal justice. In addition, the activities, to be termed as the criminal activities, have also undergone change with the passage of time. What was regarded not harmful half a century ago has become the greatest evil of the day in view of the changed circumstances, new researches, new thinking and modern way of life. It needs no stress that the crime is an act against the society at large and requires for stricter action from the authorities. The criminal justice administration allows detention of a person in two circumstances, or a detention can be one of the two kinds:
a) Punitive detention, and
b) Preventive detention.
8. The punitive detention is the detention as a punishment for the crime committed by an individual. It takes place after the actual commission of an offence or, at least, after an attempt has been made. The time taken from the actual offence to the detention can vary in length. It is a punishment 4 HCP no.32/2019 imparted to the wrongdoer and involves the strict measures. The duration of such a detention depends on what the law stipulates for the particular offence.
9. The preventive detention is the detention made as a precautionary measure. This kind of the detention can be made by the authorities even on a slight apprehension that the person can commit a crime. It is generally made for protecting the society from any future happening. It is not a punishment but a precaution. This detention comes to an end the moment the apprehension of the danger ends. It is in this backdrop that the framers of the Constitution have, by incorporating Article 22 (5) in the Constitution, left room for the detention of a person without a formal charge and trial and without such person having been held guilty of an offence and sentenced to imprisonment by a competent court. The object is to save the society from the activities that are likely to deprive a large number of the people of their right to the 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 the dangerous designs, would execute his plans, exposing the general public to risk and cause the colossal damage to the life and property. It is, therefore, necessary to take the preventive measures and prevent the person bent upon perpetrating the mischief from translating his ideas into action. Article 22(5) of the Constitution of India, therefore, leaves scope for enactment of the preventive detention law.
10.The present case relates to the acts and activities of the detenu that have the detrimental consequences over the society more particularly the maintenance of the security of the State. It is most important to mention that the militant and terrorist activities are serious threat to the security and integration of the State. Our global society is facing serious consequences of the militancy and terrorism. There is no gainsaying that the frequent acts of the militancy and terrorism in a society create the multifaceted quandaries as the government struggles to maintain a semblance of order and legitimacy amidst the chaos of terror and at the same time a common man faces the reverberations of such horrendous incidents either to give 5 HCP no.32/2019 up his life or of his loved ones. So, how to tackle the spectre of fear and to prevent and combat any activity prejudicial to the maintenance of the public order and/or the security of the State, the J&K Public Safety Act, 1978 was enacted on 8th April 1978.
11.The essential concept of the preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of the detention is the satisfaction of the executive of a reasonable probability of likelihood of the 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, has pointed 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 the 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 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.
12.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 the today's society. Every right-thinking citizen is duty bound to show esteem to the law for having an orderly, civilized and peaceful society. It has to be kept in mind that the law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts the law, he has to face the ire of the law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of the criminal law legislated by the competent legislatures, subject to the judicial scrutiny within the 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 uncivilised manner that the law cannot bind the individual actions, which are perceived as flaws by the large body of people, but the truth is and has to 6 HCP no.32/2019 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 activity on the society. It is neither to be guided by a sense of the sentimentality nor to be governed by the prejudices. Acts or activities of an individual or a group of individuals, prejudicial to the security of the State and/or public order, have the magnitude of across-the-board disfigurement of the societies. No court should tune out such activities, being won over by the passion of mercy. It is the obligation of the Court to constantly remind itself that the right of the society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out.
13.Primarily, Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee the safeguard to the detenu to be informed, as soon as may be, of grounds on which the order of detention is made, which led to the subjective satisfaction of the detaining authority and also to be afforded an earliest opportunity of making a representation against the order of detention. The detenu is to be furnished with the sufficient particulars to enable him to make a representation, which on being considered, may obtain a relief to him. In the present case it is necessary to be seen as to whether the basic right guaranteed to a detenu, under Article 22(5) of the Constitution and Section 13 of the Act of 1978, has been complied with or not.
14.In the backdrop of above legal position, when the detention record, produced by the learned counsel for the respondents, is examined, it reveals that the detention order was made on the proper application of mind, to the facts of the case and the detenu was delivered at the time of execution of the detention order, the material and the grounds of the detention and was also informed that he had a right to represent against his preventive detention both before the detaining authority as also the Government. Perusal of the endorsement on the overleaf of the detention order made by the Executing Officer, namely, ASI Farooq Ahmad no.436/S, EXK 832179 P.P. Magam, at the time of execution of the 7 HCP no.32/2019 detention, does unequivocally show and reflect that the material, referred to in the grounds of detention, comprising 16 leaves, were furnished to the detenu. Execution Report also reveals that the contents of detention warrant and grounds of detention had been read over and explained to detenu in Kashmiri language, which he fully understood and it was in lieu whereof that he subscribed his signature on the Execution Report. The detention record also comprises of an Affidavit, duly sworn by aforesaid Executing Officer, in which he affirms on oath that he executed the order of detention and explained the grounds of detention to detenu in his mother tongue. Executing officer has also asseverated that he informed the detenu to make a representation against his detention before the Government as well as detaining authority. Thus, it is evident from the overleaf of the order of detention as also Affidavit, sworn by Executing Officer that the detenu, at the time of execution of detention order, has been handed over all what has been referred to in the grounds of detention by the detaining authority, so as to enable him to make an effective representation against his detention. The detenu has been also informed that he can make a representation against his detention to the Government as well as to the 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 the detaining authority while passing the detention order. The detaining authority has narrated the facts and figures that made the authority to exercise its powers under Section 8 of the Act of 1978, and record the subjective satisfaction that the detenu was required to be placed under the preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State.
15.The detaining authority, in the present case, has informed the detenu that the detenu is an over ground conduit/worker of Lashkar-e-Toiba (LeT) and also provides support to another proscribed militant organisation Al-Badr. Grounds of detention mention that on 1st November 2018 police Handwara registered an FIR no.418/2018 in police station Handwara while receiving information from reliable sources about movement of terrorists from Sopore towards Kulangam in a vehicle and, accordingly, a mobile check 8 HCP no.32/2019 post was established by 21 RR along with police Handwara at different locations on the National Highway passing through Chogal Kulangam, and at about 21:20 hours terrorists opened fire on mobile vehicle check post at Pohrupeth which was retaliated and in the ensuing gunfight one terrorist was killed and from his possession arms/ammunition was recovered, besides a paper was also seized and on its careful examination it was found that it was a written document in the shape of a letter by detenu, in which he had taken on oath to join and had joined proscribed militant organisation, Tehreek ul Mujahideen (TeM). Investigation was set into motion and it come to fore that detenu, being an over ground worker of LeT outfit, uses his energy and knowledge of the local area to abet, promote, propagate violence and terrorism in the area. The detenu is said to have moved a bail application before the court of law and bail was granted in his favour. Grounds of detention also make mention that detenu is still actively involved in militancy related activities whose motive is to secede the State of J&K from the Union of India by means of armed insurgency and violence. This act is sufficient to prevent the detenu from indulging in such prejudicial activities that has direct bearing on our society. So viewed, the detenu is not to be heard saying that any of his Constitutional and Statutory rights have been violated while detention order in question was slapped on him and thereafter executed.
16. The counsel for the petitioner has stated that the allegations/grounds of detention are vague and the instances and cases mentioned in the grounds of detention have no nexus with the detenu and have been fabricated by police in order to justify its illegal action of detaining the detenu. 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. In Debu Mahato v. State of W.B. (1974) 4 SCC 135, it was observed by the Supreme Court 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 9 HCP no.32/2019 is sufficient". The same principle was followed in Anil Dely v. State of W.B. (1974) 4 SCC 514. 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 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. In short, the principle appears to be thus: "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 the similar prejudicial activity. That is the reason why the 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 a person tried to export the huge amount of the Indian currency to a foreign country in a planned and premeditated manner, as in the present case the detenu has been apprehended with two hand grenades, 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.
17.If one looks at the acts, the J&K Public Safety Act, 1978, is designed to prevent, those are all such acts that are prejudicial to the security of the State or the maintenance of public order. The acts, indulged in by the persons, who act in concert with other persons, quite often have the national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of the 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 10 HCP no.32/2019 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 the detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of the 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 anr, AIR 2017 SC
230.
18.The learned counsel appearing for the petitioner with a view to substantiate the ground of challenge, urges that since the detaining authority has adopted in the grounds of detention in verbatim what is supplied to it by the sponsoring authority by way of a dossier and therefore it is the case where there is total non-application of mind by the detaining authority to arrive at requisite satisfaction as envisaged under the J&K Public Safety Act, 1978. I have considered the submissions made on behalf of both the sides. At this juncture, it would be befitting 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 and therefore in this context is reproduced hereunder:
"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 there- fore 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 11 HCP no.32/2019 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 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 the aforesaid position of law settled by six Judge Constitution Bench way back in the year 1951, the scope of looking into the manner in which the subjective satisfaction is arrived at by the detaining authority, is extremely limited. This Court, while examining the material, which is made basis of subjective satisfaction of the detaining authority, would not act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before the detaining authority, another view was possible. Such being the scope of enquiry in this field, I am afraid that the contention of the counsel for the petitioner is not supported by any law and, thus, cannot be accepted. On the facts, I also do not find that the grounds of detention are replica of the dossier supplied by the sponsoring authority. The sponsoring authority not only supplied the material, viz. dossier, containing gist of the activities of the detenu but also supplied the material in the shape of FIRs and challan. All this material was before the detaining authority when he arrived at 12 HCP no.32/2019 subjective satisfaction that the activities of the detenu are such, which would entail the preventive detention under J&K Public Safety Act, 1978.
20.Before I close, I find it pertinent to refer to the observations of the Supreme Court while dealing with the question of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in the case of Prakash Chandra Mohan v. Commissioner, 1986 Cr. L.J. 786. In paragraph 81 at page 701, the Supreme Court has observed as under:
"We must remember that observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority."
21.In view of the aforesaid analysis and the reasoning, I do not find it a fit case for indulgence. In the result, this petition is dismissed.
22.The detention record be returned to the counsel for the respondents.
(Sanjeev Kumar) Judge Srinagar 21.11.2019 Ajaz Ahmad, PS Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. AJAZ AHMAD 2019.11.21 15.35 I attest to the accuracy and integrity of this document