Jammu & Kashmir High Court - Srinagar Bench
Fayaz Ahmad Shah vs Government Of Jk And Others on 16 November, 2022
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (Crl) no. 75/2022
Reserved on: 20.10.2022
Pronounced on: 16.11.2022
Fayaz Ahmad Shah
Petitioner(s)
Through: Mr Shafqat Nazir, Advocate
v.
Government of JK and others
Respondent(s)
Through: Mr Sajad Ashraf, GA
CORAM:
Hon'ble Ms Justice Moksha Khajuria Kazmi, Judge
JUDGMENT
1/- The detenue namely Fayaz Ahmad Shah @ Fareedi Son of Ghulam Nabi Fareedi resident of Zahidpora, Sheikh Colony, Lal Bazar, Srinagar, , through his wife Hameeda Bano, seeks quashment of detention order No. DMS/PSA/123/2021 dated 28.02.2022 issued by the District Magistrate, Srinagar, with consequent prayer for release of the detenue forthwith.
2/- The detention order, inter alia, is challenged on the grounds:
a) That the detenue has not been provided the material forming basis of the detention order to make an effective representation against his detention order;
b) That the grounds of detention have not been furnished to the detenue in a language he understands;
c) That the detenue was acquitted by the competent court of jurisdiction in case FIR no. 50/2006 which was not considered WP (Crl) 75/2022 Page 1 of 7 at all reflecting non-application of mind on the part of the detaining authority;
d) The mandate of the Public Safety Act has not been fulfilled as the detention order has not been approved in time nor has the Advisory Board given its opinion within the prescribed period.
3/- Pursuant to notice, respondents appeared through their learned counsel and filed the counter affidavit stating therein that the detention order is well founded, in fact and law, and seek dismissal of the Habeas Corpus Petition. 4/- Heard learned counsel for the parties and perused the records. 5/- Learned counsel for petitioner submitted that there was no material before the detaining authority to pass the detention of the detenue and in absence of relevant material the detention order is passed on mere ipsi dixit of detaining authority, rendering the same as bad in law.
6/- Learned counsel for the petitioner further submitted that the detaining authority has not applied its mind while issuing the impugned order, for, it was issued at the time when the detenue was acquitted by the competent court of law which fact was not taken into consideration at all.
7/- The learned counsel for petitioner would further submit that the detenue has not been provided the material referred upon in the grounds of detention resultantly the right of making effective representation against the impugned order of detention, as enshrined under Article 22 (3) of the Constitution, has been violated. 8/- Mr. Sajad Ashraf, GA, on the other hand submitted that the impugned order of detention is well founded and there is nothing bad about it. He submitted that the detenue has been provided the material relied upon by the detaining authority WP (Crl) 75/2022 Page 2 of 7 while issuing the impugned detention order. He further submitted that the detenue has also been informed about his right of making representation against his detention. He submitted that the detaining authority has fully applied its mind while issuing the detention order and there is nothing on record to controvert it. In support of his submissions learned counsel for respondents referred to and relied upon the law laid down in (1975) 3 SCC 198 9/- Perusal of the records would reveal that the detenue has been furnished the grounds of detention along with the requisite material. He has also been informed about his right of making representation against his detention, but the detenue has chosen not to make the representation, therefore, the fault, if any, is attributable to the detenue and not to the detaining authority. Thus, the ground raised vis-à-vis non-furnishing of material to the detenue is rejected. 10/- In terms of the provisions of the Jammu and Kashmir Public Safety Act, 1978, for short as Act, the detention order, once passed by the Detaining Authority, has to be approved by the Government and confirmed only after the Advisory Board furnishes its opinion. In the instant case the order of detention has been issued on 28.02.2022 which is approved by the Government within time, complying thereby the mandate of sub section (4) of Section 8 of the Act. It is to be borne in mind that preventive detention has been held to be a necessary evil, and liberty of an individual is curtailed, within reasonable bounds, for the good of the people. However, there are certain safeguards to be fulfilled while detaining a person under the law providing for such detention. Chapter IV of the Act deals with the power to make an order detaining a person. Section 8 reads as follows:-
"8. Detention of certain persons:
The Government may -WP (Crl) 75/2022 Page 3 of 7
(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;
(a-1) If satisfied with respect to any person that with a view to preventing him from_
(i)...
(ii)...
(iii)...
(iv)...
(v)...
(b)...
it is necessary so to do, make an order directing that such person be detained.
(2) Any of the following officers, namely__ Divisional Commissioners District Magistrate, may, if satisfied as provided in sub-clauses
(i) and (ii) of clause (a) or (a-1) of sub-section (1) exercise the powers conferred by the said sub-section.
(3)...
(4)..."
11/- From a reading of the aforesaid provision it becomes axiomatic that the Government can detain a person when it is satisfied that, with a view to preventing that person from acting in any manner prejudicial to the security of the State or maintenance of the public order, it may do so. Section 8(2) of the Act also confers such power on the Divisional Commissioners/ the District Magistrates. 12/- The condition precedent [rather the sole condition of lawful detention, as held by the Supreme Court in A. K. Gopalan v. State of Madras, AIR 1950 SC 27, para 23, (a six Judges Bench judgment)] for the exercise of such power of preventive detention conferred on the prescribed authorities in terms of Section 8 of the Act is the satisfaction of such authority, that the person has to be detained for a purpose reflected in the relevant Act. This satisfaction, which is fundamental WP (Crl) 75/2022 Page 4 of 7 to the detention of a person, is relatable to the facts set out in the grounds on which such satisfaction is arrived at. This results in an order of detention which, inter alia, is served with a warrant of arrest for the detention. 13/- When a detenue approaches the Court with a habeas corpus petition challenging such an order, he actually challenges his detention questioning the basis for the detention and the satisfaction of the detaining authority. The Court examines whether the requisite satisfaction has been arrived at by the authority on proper application of mind and in accordance with the settled principles of law. It may be mentioned here that courts by judicial decision have carved out areas within which the validity of subjective satisfaction is tested judicially. If the court finds that there is no such satisfaction accorded or that the satisfaction recorded in the detention order could not have been arrived at on the basis of the grounds of detention and the material referred to therein, the condition precedent to the exercise of the power is not fulfilled. Consequently, the exercise of the power would be bad and the detention of the person concerned will be illegal and unlawful.
14/- What emerges out of the above depicted position is that the bounden duty cast upon the official respondents is to satisfy the Court that the constitutional safeguards have been duly and strictly fulfilled and followed. 15/- It needs to be mentioned here that once an authority mentioned in sub- section (2) of Section 8 of the Act exercises the power conferred on it thereunder and fulfils the procedural safeguards of furnishing grounds of detention and the relevant relied upon material to the detenue, such authority has limited role vis-à- vis the detention of the concerned, as the purpose of conferment of the power under Section 8 stands accomplished.
WP (Crl) 75/2022 Page 5 of 7 16/- The perusal of the record would further reveal that the grounds of detention have been explained to the detenue in the language he understands and the copy has been handed over to him along with the records and the detenue has been informed about his right of making representation against his detention. This would mean that the requirement of Section 25 of the Act has been fulfilled. 17/- The next contention of the learned counsel for petitioner that the impugned order is an outcome of non-application of mind is also belied by the records produced by the learned Government Counsel. The records would show as to how the detenue has been uncontrollable despite having been framed in two FIRs allegedly for committing various offences including the unlawful activities. The detailed grounds of detention and the records referred to the detaining authority were sufficient to derive satisfaction as regards the detention of detenue under the provisions of the Act. Thus the order does not appear to be suffering from non- application of mind.
18/- As per the settled position of law, if a detention order is issued on more than one ground independent of each other, the detention order will survive even if one of the grounds is found to be unfound or legally unsustainable. In the present case the detention order is issued on more than one ground independent of each other, therefore, the detention order does not get vitiated even if one of the grounds taken in support of the petition is turns affirmative. My this view is fortified by a law laid down by the Supreme Court in case titled Gautam Jain v. Union of India and anr., reported as 2017 (1) Jammu Kashmir Law Times, Vol. 1 (SC) p. 1. 19/- Since the court has already held that the detention survives even if one of the grounds taken in support of the petition remains unexplained or proves to be bad in WP (Crl) 75/2022 Page 6 of 7 law, therefore, the detention order can be maintained even if one of the grounds taken against the detention order survives.
20/- For all what has been said hereinbefore and having regard to the law laid down and noted hereinabove the petition fails and is dismissed as such along with the connected MP. The impugned detention order, accordingly, sustains and is maintained.
21/- Record be returned to the learned Government Counsel against receipt.
Srinagar
16.11.2022 (Moksha Khajuria Kazmi)
Amjad lone, Secretary Judge
WP (Crl) 75/2022 Page 7 of 7