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2000 DIGILAW 67 (JK)

Mohd. Sadiq Bhat v. State Of J. &K.

2000-04-04

SYED BASHIR-UD-DIN

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1. Mohammad Sadiq Bhat, has been detained under Order No. 20 of 1999 dated 09-07-1999, of District Magistrate Baramulla for a period of fourteen months under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, in order to prevent him from acting in any manner prejudicial to the security of the State. This order is under challenge in this petition. Though the order is challenged on number of pleaded grounds, but the counsel for petitioner submits that he is pressing the quashment of detention order on two grounds. First, the detenue has not applied for bail before any Court in FIR 106 of 1999 registered at Police Station, Pattan, yet the detaining authority has concluded that there is likelihood of detenue being released on bail and his thus being at large would be prejudicial to the security of the State. The detaining authority has not applied its mind and had no material before it to draw satisfaction about the detenues alleged prejudicial activities, detrimental to the security of the State. Second, the detenue has not been supplied order of detention, grounds of detention and the material referred therein to enable him to make an effective representation. 2. Respondents, through detaining authority, Respondents No. 2, have controverted the alleged grounds of challenge. In terms of the counter filed and submissions of Government Advocate, Mr. Gazanfar Ali, the detaining authority apprehended that the detenue may get bail under punitive law and keeping in view his activities, allegedly highly prejudicial to the security of the State, the detaining authority clamped the detention order on him so as to prevent him from indulging in activities prejudicial to the security of the State. In answer to the other submissions of the petitioner™s counsel, the Government Advocate submits that the detenue was informed of his right to make representation and was served with order of detention as also the copy of grounds. It was communicated to him. The order was read over and fully explained to the detenue in Urdu/Kashmiri language. FIR has not been relied upon for purpose of detention in this case, though referred in the grounds. For this reason copy of the FIR was not supplied to the detenue. 3. It was communicated to him. The order was read over and fully explained to the detenue in Urdu/Kashmiri language. FIR has not been relied upon for purpose of detention in this case, though referred in the grounds. For this reason copy of the FIR was not supplied to the detenue. 3. In terms of submissions, upon hearing the parties, examination of record reveals that the detenue Mohammad Sadiq Bhat was initially arrested in FIR 106/99 under section 120-A-121B, 212, 109 RPC, 7/25 IAA & 3/4 ESA of Police Station Pattan. Petitioner comes from a family which has the history of serving in the Police Department, He was appointed in the Police Department back in July, 1991. His wife is also a police Constable. In view of the positions he held and the confidence he enjoyed of his officers, he was attached on Escort duty with one Mubark Ganie, S.P. Srinagar. During this posting he came in contact and established links with Albadder Organisation and through their named linkman engaged in providing shelter to militants at Srinagar and at his home town of Safapora. He also indulged in supplying various articles of utility to militants. He also served as a conduit between over and underground elements of the outfit and was also engaged in transportation of arms and ammunition as also in distribution of the money, etc. For the various acts of omission and commission, the detenue was arrested in the regular case (FIR 106/99, registered at Police Station Pattan). Fearing that the petitioner may succeed to come out on bail and on the likelihood, that this concession of bail may be misused, so as to continue to engage himself in subversive and other activities, prejudicial to the security of the State, the detaining authority passed the detention order. Merely because, in such circumstances, petitioner did not apply for bail, it cannot be assumed that the authority did not consider his arrest and punitive detention in the above regular case. It cannot be said that there was no material for the detaining authority to derive its subjective satisfaction, it cannot be also canvassed that detaining authority failed to apply his mind while coming to the conclusion that the detention of petitioner is imperative and warranted so as to prevent him from indulging in activities prejudicial to the security of the State. 4. In P.L. Lakhanpual Vs. 4. In P.L. Lakhanpual Vs. Union of India, (AIR SC 1967 : 908) (915), a five member constitutional Bench of the Court in the context of satisfaction of the empowered authority in the context of Defence of India Rules 1962 observed:- ...So long as that decision was arrived at on materials, since this court does not sit in appeal against such a decision, it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the court had examined them it would have come to a different conclusion. It is, therefore, not possible to agree with the contention that this is a case of a malafide exercise of power or a case of non-application of mind by the authority concerned.� 5. The grounds of detention are in detail which apart from referring to the FIR, give details of various acts of omissions and commissions of the detenue. It also exemplifies and incorporates the incidents with sufficient precision and clarity to indicate petitioners indulgence in activities which can be cumulatively said to be prejudicial to the security of the State. The grounds of detention are neither vague nor drawn in omnibus terms. In terms of the incriminating allegations and grounds, the activities attributed to the detenue suggest that the detenue™s indulgence in omissions and commissions would convey that the detaining authority had reason and cause to derive subjective satisfaction of petitioner™s likelihood of engagement in activities prejudicial to the security of the State in case let off from custody. Seen thus, the first ground of challenge does not appear to stand on any firm ground. It cannot be accepted and is rejected. 6. In counter filed by the Under Secretary to Government, Home Department, having access to the record and being conversant with the facts of the case, it is averred that the detenue was supplied copy of grounds of detention which formed the basis for preventive detention as also the detention order. Same was read over and explained to him in Urdu and Kashmiri language which he fully understood. It is further stated that though FIR is referred in the grounds, but same is not relied upon for detention. The detenue was also informed of his right to make a representation to the Government against the detention. Same was read over and explained to him in Urdu and Kashmiri language which he fully understood. It is further stated that though FIR is referred in the grounds, but same is not relied upon for detention. The detenue was also informed of his right to make a representation to the Government against the detention. The examination of grounds reflect that the petitioner, an employee of the Police Department since July, 1991 was discharging escort duty with Senior Police Officers. In view of the confidence of the officers he was enjoying and the strong official clout he possessed, he had acted as a conduit to carry out various incriminating activities prejudicial to the security of the State on behalf of Albadder outfit, He acted as courier of the outfit and provided shelter to its militants. He transported and carried various articles including arms and ammunition to various places and was also engaged in supplying/ carrying money to the outfit. He also initiated moves to motivate other constables to work for the said outfit. 7. His wife, a constable also acted as a conduit with him and worked for the organisation/outfit for many an allurement. The various acts of omissions and commissions, details whereof are given in the grounds serve as basis for the detention. The dates, names of person and places, reference to specific things and other incriminating acts have been precisely and sufficiently given in the grounds. No material or document is referred in the grounds other than the FIR. When FIR is excluded from the consideration still there are number of incidents and acts of omission and commission given in the grounds to suggest engagement of petitioner in activities prejudicial to the security of the State. Merely, because petitioner has not been given copy of FIR or other paper connected to this FIR, it cannot be said that the petitioner has been adversely or prejudicially affected and deprived of his right to make an effective representation. The petitioner has been supplied the material and informed of his right to make a representation to the Government against the detention. In terms of affidavit and counter averments, it cannot be said that the detenue was not communicated the grounds and that he was not informed of his right to make a representation. The petitioner has been supplied the material and informed of his right to make a representation to the Government against the detention. In terms of affidavit and counter averments, it cannot be said that the detenue was not communicated the grounds and that he was not informed of his right to make a representation. This ground urged in support of petition also fails, No other point is canvassed to support or oppose the petition. In result, the detention is held in order, consequently, the writ petition is dismissed.