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2001 DIGILAW 291 (JK)

Khan Nisar Ahmad v. State

2001-11-20

SYED BASHIR-UD-DIN

body2001
1. The subject Nisar Ahmad Khan is in preventive detention pursuant to District Magistrate, Anantnags detention order, NO.F-146/DMA/PSA/DET/2000-2284-90/ DMA dated: - 03.06.2000 issued u/s 8 of J&K P.S. Act. 1978 with a view to prevent him from acting in any manner prejudiced to the security of the State. This order is approved by the Government vide order No. Home (PB-V) 2346 of 2000 dated: 2.8.2000. The detention order and the consequent preventive detention is under challenge in this petition. 2. Ld. counsel for the petitioner canvasses that the petitioner was not communicated the detention order with grounds. Being illiterate and not able to read Urdu/ English the order was not read over and explained to him. He was prejudiced to make a representation against the detention order to government. The other ground of challenge to the order stems out of the contention that whatever has been stated in the grounds of detention (Annexure pc) is false, incorrect and without any basis. 3. Detaining authority (respondent No.2) has filed counter. 4. It is contended that at the time of execution of detention order, detenu was supplied grounds of detention and grounds were read over and explained to detenu in the language which he fully understood. The detenu has executed receipt and a memo acknowledged the same. The detenu was also informed of his right to make representation against the detention order. The detenu is involved in FIR No. 47/2000 registered at P/S Dooru. Though the detenu was in custody when the detention order was passed but as there was apprehension that he may be enlarged on bail, therefore, detenu in the context of antecedent activities was detained under P.S. Act. 5. The detention record available file, shows that the detenu has executed receipt of grounds of detention and has also acknowledged that the grounds of detention were read over and explained to him in the language which he fully understood, besides being informed of his right of representation against the detention. The receipt signed by the detenu is attested by Superintendent District Jail Kathua, the placements of lodgement of detenu. Besides Inspector, Parvez Ahmad while handling over the subject to District Jail, Kathua for lodgement has obtained a receipt for detenu attested by Dy. Superintendent, Kathua Jail acknowledging that the grounds were served on him and same were read over and explained to him in the language which he fully understood. Besides Inspector, Parvez Ahmad while handling over the subject to District Jail, Kathua for lodgement has obtained a receipt for detenu attested by Dy. Superintendent, Kathua Jail acknowledging that the grounds were served on him and same were read over and explained to him in the language which he fully understood. This receipt is also signed by said Inspector, Parvez Ahmed. What is contained as official record in-conjunction with the counter on affidavit of the detaining authority, it cannot be said that the detenu has not been communicated/conveyed the grounds of detention. Therefore, raised contention, obviously cannot be up-held. 6. The authority cited as 1999 SLJ 241 and 1997 SLJ 276, in terms have no application to the facts and circumstances of this case. The contention that the grounds are untrue and baseless would not be a matter for this court while exercising the writ jurisdiction. After all, neither appellate nor revisional jurisdiction is being exercised by the High Court. So long there were material before the detaining authority, the satisfaction of the empowered authority cannot be interfered with. 7. On examination of the grounds it is manifest that the subject is alleged to have been trained in, handling arms and ammunition, and planting of IEDS as member of the H.M. It is also alleged that he is harbouring militants and acting as condute and assisting the militant of Hizbul Mujahideen in carrying out their varied activities. It is also stated in the grounds that on 13.05.2000 detenu with one Abdul Salam Bhat, Gh.Qadir Ganie, Abdul, Rashid Tractor and Arshid conspired to kill the Minister of State for Power, Mr. Gh. Hassan who actually was killed along with four other persons after IED detonated at Chimran Qazigund. Besides the subject closely shadowed and monitored the movements of the Minister and flashed message to his associates which led to the killing of said Minister of State. A case of FIR 47/2000 U/s 302, 307 RPC, 120-B RPC, 3/4 Exp. Sub. Act stands registered in PAs Dooru. During arrest in said case on 24.5.2000, recovery of two hand grenades at the instance of subject was effected and on the apprehension that the subject may get bail, he was detained under P.S. Act. This shows that the material facts and circumstances the basis of detention are on record to pep-up the detention in question. During arrest in said case on 24.5.2000, recovery of two hand grenades at the instance of subject was effected and on the apprehension that the subject may get bail, he was detained under P.S. Act. This shows that the material facts and circumstances the basis of detention are on record to pep-up the detention in question. No allegation of malafide exercise of power or non-application of mind is alleged. The correctness or otherwise of the allegations is not a matter to be gone in writ jurisdiction. After all this court is not sitting in appeal against the subjective satisfaction and decision arrived at by the detaining authority. 8. In P.L. Lakhanpaul Vs. Union of India (AIR SC 1967 908 at Page 915) a five member Constitutional Bench of the court in the context of satisfaction of empowered authority within 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 a non-application of mind by the authority concerned." 9. Faced with the above situation the Ld. Counsel for the petitioner/detenu submits that as the detenu was already in punitive detention, therefore, his preventive detention pursuant to the order is not justified and legal. The counsel for respondents contests this contention as well. 10. Admittedly the subject has been in punitive detention in the regular FIR as above. The impugned order of detention has been passed while subject was thus detained. However, the grounds as also the record shows that the detaining authority District Magistrate has spoken of his awareness of the subject being in punitive detention, and since the detaining authority apprehended that there is likelihood of detenu being released on bail and resume subversive anti-national activities, therefore, order of detention was passed for the said compelling reasons. The grounds also speak of registration of the case, recovery of ammunition, mention of antecedental activities qua likelihood of his getting bail. 11. The grounds also speak of registration of the case, recovery of ammunition, mention of antecedental activities qua likelihood of his getting bail. 11. In Dharmendra Sugan Chand Chelawat case (AIR 1990SC 1196), in the context of validity of a detention order passed against a person in custody, the apex court observed that it is necessary: - "That the grounds of detention must show that (i) the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention." 12. The compelling reasons imply availability of material before detaining authority, the basis of satisfaction of the authority of likelihood of release of detenu from custody in near future coupled with the nature of his antecedant activities and the likelihood that after release, detenu, may indulge in activities prejudicial to the security of the State. This case when viewed thus, in the totality of facts grid circumstances on record, the detention cannot be said to be vitiated on this count. 13. In result, as the grounds of challenge fail and the order of detention is not shown vitiated or un-sustainable under law, therefore, petition is dismissed on merits. The record produced by Mr. R. Fida, GA is returned to him in open court.