Jammu & Kashmir High Court - Srinagar Bench
Mr Mir Shafqat Hussain vs Mr Javed Iqbal on 23 April, 2019
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
RPHCP no.02/2018 c/w HCP no.15/2018 Date of order: 23.04.2019 Latief Ahmad Rather v.
State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For Petitioner(s): Mr Mir Shafqat Hussain, Advocate with Mr Wajid Haseeb, Advocate For Respondent(s): Mr Javed Iqbal, Sr. AAG Whether approved for reporting? Yes
1. This Court by Order and judgement dated 3rd August 2018, dismissed writ petition, bearing HCP no.15/2018 titled Latief Ahmad Rather v. State of J&K and others. Thereagainst, review petitioner herein directed an Appeal, being LPAHC no.08/2018. The Division Bench vide order dated 18th September 2018, dismissed aforesaid Appeal with liberty to petitioner to seek review/verification before learned Single Judge. It is as a consequence of this that instant Review Petition has come up for consideration before me.
2. I have heard learned counsel for parties and considered the matter. I have also gone through the judgement, review whereof is sought for.
3. Learned counsel for petitioner states that judgement dated 3rd August 2018 requires to be reviewed on following grounds:
a) Detenu was already in custody in FIR no.448/2013 and FIR no.263/2017;RPHCP no.02/2018 Page 1 of 21 c/w HCP no.15/2018
b) Relevant material was not placed before detaining authority, i.e. acquittal order of FIR no.216/2013;
c) Detention order has been ordered for maximum period;
d) Relevant material has not been supplied;
e) Detenu is not English Literate and no translated copy of grounds, order of detention and communication was supplied.
4. In support of his submissions, learned counsel for petitioner has also placed reliance on judgements rendered in Surya Prakash Sharma v. State of U.P. and others, 1994 SCC (Cri) 1691; and Bilal Ahmad Dar v. State of J&K and another, 2017 (II) SLJ 650 (HC).
Ground (a):
5. First point/ground, raised by learned counsel for review petitioner, is that "detenu was already in custody in FIR no.448/2013 and FIR no.263/2017". His submission in this respect is that once detenu was already in custody a propos aforementioned cases, detaining authority had no justification or reason to pass detention order.
5.1. Given what has been projected in review petition and exhorted by learned counsel for petitioner in support of review petition, it has become necessary to have glance of grounds of detention and reproduce them in verbatim infra:
"GROUNDS OF DETENTION NAME : LATIEF AHMAD RATHER SON OF : HABIBULLAH RATHER RESIDENCE : BADIPORA, RATHER MOHALLA TEHSIL : CHADOORA DISTRICT : BUDGAM AFFILIATION : LeT TERRORIST OUTFIT RPHCP no.02/2018 Page 2 of 21 c/w HCP no.15/2018 AGE : 36 YEARS (Approximately) From the perusal of the material put forth by Sr. Superintendent of Police, District Budgam, it emerges:-
That you are a hard core and deeply motivated terrorist who has since long been indulging in secessionist/terrorist activities. Your aim is to secede the state of J&K from the union of India and to accomplish the aim of making it part of Pakistan. Your anti-national and unlawful activities are aimed at achieving this objective.
That you are affiliated with banned terrorist organization namely Lashker-i-Toiba, which is one of the most dreaded terrorist organization operating in the state of J&K. The aim of that organization is also to have the state of J&K merged with Pakistan and in order to obtain such objective the cadres of the organization have no qualms in killing people, security forces and causing wide spread violence and damage to the public property.
You have a criminal/secessionist bent of mind as such you developed contacts with notorious terrorist like Reyaz Ahmad Dar etc of Let outfit. It was in the year 2000 that you joined the let outfit as a member of the said organization and was subsequently imparted training locally viz-a-viz the use of illegal Arms/Ammunition by the cadres of LeT outfit. After becoming a member of the said outfit and being trained in the use of Arms/Ammunition, you indulge yourself in various terrorist activities, the details of which are as under:-
a) That on 13.05.2001 a school teacher was killed by terrorists and in this behalf a case FIR no.45/2001 U/S 302 RPC and 7/27 Arms Act was registered in P/S Chadoora. During the course of the investigation of the case, it came to fore that you were involved in the said killing. You came to be arrested in the said case.....
b) ....
c) That after your release from detention, you didn't shun the path of violence and started working as an OGW for LeT outfit.
d) That on 19.10.2012 some terrorists attacked a Hotel namely Silver Star Hotel located at Nowgam bypass. In the said attack two civilians got killed. With regard to the said occurrence a case FIR No.132/2012 U/S 302, 307 RPC, 13, 16, 18, 19 U.L.A (P) Act and 7/27 Arms Act was registered in P/S Nowgam. During the course of the investigation it got established that you along with other co-accused were involved in the said incident. For carrying out the said attack you and your co-
associates were given a cash reward of Rs.2500/- by the top cadres of LeT outfit which fact boosted your morale and your became more inclined to carry out your activities against the state.
e) That on 02.12.2012 you were found instigating the innocent masses of Chadoora area to wage a war against the State and in this connection a case FIR No.228/2012.... was registered against you in Police Station Chadoora.
f) That you were found involved in case FIR No.150/2013...
g) That on 12.12.2013 militants with their illegally acquired weapons fired upon Shri Shabir Ahmad, the then SHO P/S Chadoora. In the said attack Shri Shabir Ahmad attained martyrdom and some other RPHCP no.02/2018 Page 3 of 21 c/w HCP no.15/2018 Police personnel were injured. For the said incident a case FIR No.216/2013....., was registered in P/S Chadoora. During the course of investigation it came to surface that you alongwith your fellow terrorists were involved int eh said case.
h) That on 24.12.2014 you alongwith two other terrorists namely Reyaz Ahmad Dar and Umer were hiding in the residential house of one Bilal Ahmad Bhat S/O Ghulam Mohammad Bhat located at Ichkoot, Budga. On receiving an input, the security forces cordoned off the said house. While the cordon was being laid down, the trio opened indiscriminate fire upon the security forces which was retaliated, however, the said terrorists managed their escape from the spot. With regard to the said incident a case FIR No.448/2013,...., was registered in Police Station Budgam. During the investigation a prima-facie case you and two other terrorists were established. You are arrested in the sadi case.
i) That you met showket Ahmad Ganie S/O Kamaal Ganie ....... On your instructions, Showkat Ahmad Ganie managed to meet JEM Militant Azaad Ahmad Lone and provided him shelter at his home. On your instructions Showkat Ahmad Ganie also received two live hand grenades from Azaad Ahmad Lone and he kept the same in his possession. The said hand grenades were recovered from the possession of Showkat Ahmad Ganie to the effect of which case FIR No.263/2017....., stands registered in P/S Budgam.
In view of the aforementioned facts it can be safely gathered that you are a potential threat to the security of the state. Though normal law of the land has been invoked against you, however, the same won't be sufficient to prevent you from carrying out antinational and subversive activities. ......"
5.2. What is discernible from grounds of detention is that detenu is affiliated with a banned Terrorist Organization, Lashkar- e-Toiba (LeT). He has joined said banned outfit in the year 2000. He became a member of aforesaid outfit and was trained in the use of arms/ammunition. He indulged in various terrorist activities. Some incidents have been indicated in grounds of detention. A school teacher is shown in grounds of detention to have been killed by terrorists on 13th May 2001, which resulted in registration of case FIR no.45/2001 under Section 302 RPC, 7/27 Arms Act in Police Station Chadoora and when investigation was conducted, it RPHCP no.02/2018 Page 4 of 21 c/w HCP no.15/2018 came to limelight that detenu was involved in aforesaid killing of school teacher. He was arrested. However, later he was released. Nevertheless, detenu, as is coming to fore from grounds of grounds, did not shun the path of violence. He was found involved in case FIR no.132/2012 under Section 302, 307 RPC, 13, 16, 18, 19 ULA (P) Act and 7/27 Arms Act, registered in Police Station Nowgam. Detenu was again found involved in case FIR no.228/2012 under Section 13 ULA (P) Act, registered in Police Station Chadoora. Thereafter again, detenu was found involved in case FIR no.150/2013 under section 435 RPC, registered in Police Station Chadoora, in which a vehicle (Tavera) bearing Registration no.JK04B/9011 and Maruti 800 bearing Registration no.JK04B/7999, were set ablaze at Village Badipora, Chadoora. Once again, detenu was found involved in case FIR no.216/2013. However, detenu, as claimed by petitioner, has been acquitted in case FIR no.216/2013. Nonetheless, detenu was found involved in case FIR no.263/2017 under Section 120B, 307 RPC, 7/25 A. Act, 13 ULA(P) Act, 3/4 Exp. Sub. Act, registered in Police Station Budgam. This case pertains to recovery of hand grenades.
5.3. According to learned counsel for petitioner, once detenu was already in custody in connection with cases FIR nos.448/2013 and 263/2017, there was no compelling reason for detaining authority to pass detention order and place detenu under preventive detention.
RPHCP no.02/2018 Page 5 of 21 c/w HCP no.15/20185.4. It is pertinent to mention in the backdrop of aforesaid contention of learned counsel for petitioner that because a detenu is liable to be tried in a criminal court for commission of criminal offence(s) or to be proceeded against for preventing him from committing offences dealt with in the Code of Criminal Procedure, would not per se debar his detention. It is trite law that 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 an FIR, may be no bar against District Magistrate for issuance of an order under preventive detention.
5.5. In the present case it is insisted that detenu was acquitted from the case FIR no.216/2013 and was to be released. But he was not. And he was kept in custody. And later on, he has been placed under preventive detention. In the backdrop of aforesaid submission of learned counsel for petitioner, it is very important to be seen and appreciated, as is evident from grounds of detention, that detenu is affiliated with a banned terrorist organisation since the year 2000 and has indulged in various terrorist activities. Succinct resume whereof has been excerpted in grounds of detention. All what has been indicated in grounds of detention, is past conduct of detenu, spread over a period of 18 years and portrays what detenu has been doing unrelentingly inasmuch as he was found involved in as many as seven criminal cases - FIRs. Thus, impugned detention order is based on a reasonable prognosis of the RPHCP no.02/2018 Page 6 of 21 c/w HCP no.15/2018 future behaviour of detenu, based on his past conduct in light of surrounding circumstances. In that view of matter, order of detention is a precautionary measure. 5.6. It is settled law, long since, that 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 on 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. Same is true about present case. 5.7. Having said that, there is no meat in the ground (a) that detenu was already in custody in FIR no.448/2013 and FIR no.263/2017 and should not have been placed under preventive detention. It was already highlighted in the order/judgement, review whereof is sought here, that law is very much clear as is manifest from above discourse. It has been often said that Article 14 is inapplicable because preventive detention and prosecution are not synonymous and purposes are different. The authorities are different and the nature of proceedings is different. In a prosecution an RPHCP no.02/2018 Page 7 of 21 c/w HCP no.15/2018 accused is sought to be punished for a past act and in preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of detenu. The decisions on this theme are sundry. Merely because a detenu is liable to be tried in a criminal court for commission of a criminal offence(s) or to be proceeded against for preventing him from committing offences dealt with in the Code of Criminal Procedure, is not a sojourn for the Government to take action for his detention under the Act. The fact that 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 barricade against District Magistrate in issuing an order under preventive detention. The mere context that a detention order is passed when prosecution is pending will not violate order of preventive detention. The order of detention is a precautionary measure and it is based on a reasonable scenario of the future behaviour of a person based on his past conduct in light of surrounding circumstances.
Ground (b):
6. Second ground, taken by review petitioner for review of order and judgement of this Court, is that "relevant material was not placed before detaining authority, i.e. acquittal order of FIR no.216/2013".
RPHCP no.02/2018 Page 8 of 21 c/w HCP no.15/20186.1. It has already been made clear herein above and in the order, review whereof is sought, that power of preventive detention is unalike to punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence and 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 can be made before or during prosecution and can be made with or without prosecution and in anticipation or after discharge or even on 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. Same is true about present case. Having said that, ground (b) raised in present review petition for review of order and judgement dated 3rd August 2018, is out-of-place.
6.2. It is germane 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. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order. The Constitution Bench of the Supreme Court in the case of Haradhan Saha v. State of W.B. (1975) 3 SCC 198, which even holds water today on the subject, while considering various facets concerning preventive detention, held that the essential concept of preventive detention is that RPHCP no.02/2018 Page 9 of 21 c/w HCP no.15/2018 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 the 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 has pointed out that a criminal conviction is for an act already done, which can only be possible by a trial and legal evidence and 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 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. 6.3. Taking into account aforesaid milieu, in the present case it cannot be denied that detenu has had to his credit as many as seven criminal cases (FIRs). What are contended/ alleged in these cases need no exposition. Prejudicial activities therein have been ascribed to detenu, which have resulted in lodgement and registration of those FIRs. Such activities are not for interest of social fabric or Nation's integrity and sovereignty muchless public order or security of the State. Those activities are, obviously, detrimental, and not fruitful, for the society.
6.4. This Court has already in the order and judgement dated 3rd August 2018, review whereof is beseeched, has referred RPHCP no.02/2018 Page 10 of 21 c/w HCP no.15/2018 to various judgements rendered by the Supreme Court with regard to one act being suffice to place a person under preventive detention. The Supreme Court in the case of Debu Mahato v. State of W.B. 1974 (4) SCC 135, has said 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". The said case was with respect to wagon-breaking case and taking into view the nature of the Act, it was held "one act is sufficient". The said principle was ingeminated by the Supreme Court in Anil Dely v. State of W.B. (1974) 4 SCC
514. The said case was only about the theft of railway signal material and again 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 a nutshell, the principle emerges as 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."RPHCP no.02/2018 Page 11 of 21 c/w HCP no.15/2018
6.5. It has already been adumbrated by this Court in the order/judgement, review whereof is prayed for, that the gravity and nature of the act is also relevant and 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. Likewise, where a person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner it was held that such a single act warrants an inference that he would repeat his activity in future and, therefore, his detention was necessary to prevent him from indulging in such prejudicial activity.
6.6. A law of preventive detention is not invalid because it prescribes no objective standard for ordering preventive detention, and leave the matter to the 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 which 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 the State, or maintenance of public order, or essential services and supplies rests on the Executive and it must, therefore, have RPHCP no.02/2018 Page 12 of 21 c/w HCP no.15/2018 the necessary power to order preventive detention. The 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 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. The Supreme Court has made it clear that "when power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision which cannot be described as either irrational or unreasonable; in the sense that no person instructed in law could have reasonably taken that view, then the order is not bad and the court cannot substitute its decision or opinion, in place of the decision of the authority concerned on the necessity of passing the order". 6.7. The Courts do not even go into the question whether the facts mentioned in the 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 it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board. 6.8. Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires. Preventive detention is devised to afford RPHCP no.02/2018 Page 13 of 21 c/w HCP no.15/2018 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. The justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence. Thus, any preventive measures, even if they involve some restraint or hardship upon individuals, as said by the Supreme Court in Ashok Kumar v. Delhi Administration and others AIR 1982 SC 1143, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose. Same is the position in present case as well.
6.9. One more important aspect that I think appropriate to be made mention of here is that the submission/ground, that has been raised by learned counsel for petitioner, to seek review of order and judgement dated 3rd August 2018, is non-supply of relevant material. But the said ground/ contention of learned counsel for petitioner is contradicted by the pleadings made in and what has been placed on record by petitioner with writ petition. In this regard, RPHCP no.02/2018 Page 14 of 21 c/w HCP no.15/2018 ground (ix) of writ petition - an Achilles' Heel to instant petition - is profitable to be reproduced hereunder:
"ix) That the respondent no.2 has not furnished the relevant material like copy of dossier and so called connected material as per record furnished to the detaining authority by police and relied upon by detaining authority.....
6.10. The documents, concomitant with writ petition (HCP no.15/2018), are:
(i) Order of the court of Principal District & Sessions Judge, Budgam (Annexure P-1)
(ii) Detention Order (Annexure P-2)
(iii) Communication dated 9.1.2018 (Annexure P-3)
(iv) Grounds of Detention (Annexure P-4)
(v) Dossier (Annexure P-5) 6.11. From the above, it is unequivocally evident and apparent that relevant material, including Dossier, has been furnished to petitioner/detenu and same has been placed on record by petitioner. In such situation, submission contained in ground (ix) of writ petition or for that matter the ground, under discussion, raised by learned counsel for petitioner to seek review of judgement dated 3rd August 2019, (relevant material, like Dossier, has not been furnished to petitioner) is totally misplaced and goes against his own projected-case. On this count as well review petition on hand is liable to be dismissed.
Ground (c):
7. Third ground for review of order/judgement is that "detention order has been ordered for maximum period". Read-through of detention order (Annexure P-2 to petition) divulges that detaining authority in exercise of powers conferred by Section 8 of J&K Public Safety Act, 1978, directed that detenu be detained and lodged in Central Jail, Kotebhalwal, Jammu, for a period to be specified by the Government. Albeit in grounds of detention, it RPHCP no.02/2018 Page 15 of 21 c/w HCP no.15/2018 is mentioned "for a maximum period", yet it has been qualified in the order of detention that the period shall be "specified" and decided by the Government. In this regard it is profitable to reproduce pertinent excerpt thereof hereunder:
"Now, therefore, in exercise of powers conferred under Section 8 of the J&K Public Safety Act, 1978, I, District Magistrate, Budgam hereby direct that the Shari Latief Ahmad Rather S/O Habibullah Rather R/O Badipora Rather Mohalla Chadoora Budgam be detained udner Public Safety Act and to be lodged in Central Jail Kotebhalwal, Jammu, for a period to be specified by the Government."
7.1. Thus, the ground (c) for review of order and judgement dated 3rd August 2018, is also specious and misplaced.
Ground (d)
8. Fourth ground (d) for review of the order and judgement is that "relevant material has not been supplied" to detenu. This ground has already and elaborately been answered in the judgement itself. It has been unequivocally mentioned in the judgement under review that overleaf of detention order reflects execution of impugned detention and is it shown therein that in compliance to District Magistrate, Budgam's detention order, ASI Bashir Ahmad no.643/BD EXK 841730 of police station Budgam, took the custody of detenu. It also reveals that detention order has been executed on 10.01.2018 and notice of the order and entire material/relevant documents pertaining to detenu, i.e. copy of grounds of detention, PSA warrant, copies of FIRs, statement of witnesses, copy of dossier, have been given to detenu against proper receipt, by reading over and explaining the same to him in his own languages, i.e. RPHCP no.02/2018 Page 16 of 21 c/w HCP no.15/2018 Urdu/Kashmir, which he understood fully. The detenu is shown to have been informed that he may make a representation to the government and detaining authority against detention order, if he so desire. In that view of matter ground (d) is without any sum and substance inasmuch as detenu has been provided relevant material for making representation both to the Government as well as detaining authority.
Ground (e):
9. Fifth ground, seeking review of the order and judgement is, "Detenu is not English Literate and no translated copy of grounds, order of detention and communication was supplied. As recapitulated herein above, detenu was supplied all relevant material. While executing detention order, executing officer read over and explained the relevant material to detenu in his own language, that is, Urdu/Kashmiri, which he understood fully and he in token of having understood what was read over and explained upon him, he subscribed his signature overleaf of detention order. The main and basic objective of furnishing the material has been abided by respondents and while doing so, the executing officer has read over and explained the relevant material to detenu in his vernacular. Having said so, the ground (e) is also specious.
10.It may not be out of place to mention here that extremism, radicalism, terrorism have become the most worrying features of the contemporary life. Though violent behaviour is not new, RPHCP no.02/2018 Page 17 of 21 c/w HCP no.15/2018 the contemporary extremism, radicalism, terrorism in its full incarnation have obtained a different character and poses extraordinary threats to civilized world. The basic edifices of a modern State, like - democracy, State security, public order, rule of law, sovereignty and integrity, basic human rights, etcetera, are under attack of such extreme, radical and terror acts. Though phenomenon of extremism, radicalism, fanatism or terrorism is complex, a terrorist or such like an act is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not.
11.Paul Wilkinson, an authority on terrorism related works, culled out five major characteristics of terrorism. They are:
1. It is premeditated and aims to create a climate of extreme fear or terror.
2. It is directed at a wider audience or target than the immediate victims of violence.
3. It inherently involves attacks on random and symbolic targets, including civilians.
4. The acts of violence committed are seen by the society in which they occur as extra-normal, in literal sense that they breach the social norms, thus causing a sense of outrage; and
5. Terrorism is used to influence political behaviour in some way - for example to force opponents into conceding some or all of the perpetrators demands, to provoke an overreaction, to serve as a catalysis for more general conflict, or to publicize a political cause.
12.All things considered, the acts of extremism, fundamentalism or terrorism, it is mainly psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct target of violence but also by exposing them to a sense of insecurity. The Supreme Court in this background held in Mohd Iqbal M. Shaikh v. State of Maharashtra, (1998) 4 SCC 494, that:
RPHCP no.02/2018 Page 18 of 21 c/w HCP no.15/2018"...it is not possible to give a precise definition of terrorism or to lay down what constitutes terrorism. But... it may be possible to describe it as a use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. ... if the object of the activity is to disturb harmony of the society or to terrorize people and the society, with a view to disturb even tempo, tranquillity of the society, and a sense of fear and insecurity is created in the minds of a section of society at large, then it will, undoubtedly be held to be terrorist act..."
13. Our country is victim of an undeclared war by the epicentres of terrorism, radicalism, secessionism and extremism with the aid of well-knit and resourceful outfits and organizations, engaged in secessionist, terrorist and radical activities in different States, such as Jammu and Kashmir, North-East States, West Bengal, Tamil Nadu, Andhra Pradesh. It is not necessary to swell the incidents happening throughout the country by narrating all the episodes of extremist, terrorist, fanatical activities that the country witnesses. These acts and activities are meant to destabilize the Nation, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected governments, to promote prejudice and bigotry, to demoralize security forces, to thwart economic progress and development and so on and so forth. This cannot be equated with a usual law and order problem within a State. Fight against overt and covert prejudicial acts is not a regular criminal justice endeavour. Rather it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, RPHCP no.02/2018 Page 19 of 21 c/w HCP no.15/2018 secessionist, extremist and terrorist activities are challenge for law enforcement. By indulging in such activities, organized groups and/or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements are trying to destabilize the country. This new breed of menace was hitherto unheard of. Extremism, fanatism, terrorism is definitely a criminal act, but it is much more than mere criminality. Today, the government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within borders.
14. The threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country may take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover ramifications. It is, therefore, difficult in the present context, to draw sharp distinctions between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. Anti-fanatism, anti-extremism, antiterrorism activities in the global level are mainly carried out through bilateral and multilateral cooperation among nations. It has, in RPHCP no.02/2018 Page 20 of 21 c/w HCP no.15/2018 such circumstances, become our collective obligation to save and protect the State and its subjects from uncertainty, melancholy and turmoil.
15. It is pertinent to have reference of 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.LJ 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."
16.Though, law is settled vis-à-vis review of an order and judgement that error should be apparent on the face of record, yet I thought it apt to discuss loquaciously and square off all the grounds raised in review petition.
17.Based on foregoing reasoning, no case is made out for review of the order and judgement dated 3rd August 2019. Review petition is wholly misplaced and the same is liable to be dismissed. The review petition on hand is, accordingly, dismissed.
( Tashi Rabstan ) Judge Srinagar 23.04.2019 Ajaz Ahmad, PS AJAZ AHMAD 2019.04.24 11.40 I attest to the accuracy and integrity of this document RPHCP no.02/2018 Page 21 of 21 c/w HCP no.15/2018