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2008 DIGILAW 458 (JK)

Ravinder Kumar Jain v. State Of J. &K.

2008-11-27

VIRENDER SINGH

body2008
1. Ravinder Kumar Jain (hereinafter to be referred to as detenu), who claims to be a businessman dealing in gift items at Karol Bagh, New Delhi, and through his son Saurabh Jain seeks quashment of his detention order No.PSA/2007/18 dated 19-12-2007 (Annexure-B) passed by District Magistrate, Udhampur (respondent-2) under section 8 of Public Safety Act, 1978 (for short to be referred to as `Act). 2. Grounds of detention served upon the detenu indicate that he is an active hawala operator and the hawala money generated at Dubai and other countries through hawala operators is collected by him for delivering the same to different persons operating terrorists organizations. He is stated to have been involved in delivering money to Ghulam Mohd. Bhat, Leader, Tehriq-e-Hurriyat at his residence in Delhi and Srinagar, who in turn delivered the same to Syed Ali Shah Geelani, Chairman, Tehriq-e-Hurriyat for carrying out terrorist activities. It is further alleged that till his arrest, he did the hawala transaction to the tune of Rupees hundred crores with different persons in different transactions, out of which Rupees eight lacs deal was with one Jarnali Khan for providing financial aid to the terrorist organizations to carry out anti-national and subversive activities. In the grounds of detention, entire track record of the detenu is depicted as to how he had started hawala transaction way back in December, 2001 with one Naresh and the proprietor of Sheeba LCC, namely Babu Jasthani, resident of Ajmer (presently settled in Dubai). His links with aforesaid Jamali Khan are shown to be from 2002 onwards and then with Syed Ali Shah Geelani in 2004. Aforesaid Jamali Khan was arrested in case FIR No. 252/07 under sections 17/18/21/24/40 Unlawful Activities Prevention Amendment Act, 2004 at Police Station, Udhampur and recovery of huge amount generated as terrorists fund abroad was effected from him. During his initial interrogation, he admitted that part of hawala money to the tune of lis.8.40 lacs, which was recovered from CNG cylinder, was given to him by the detenu. Subsequently his visiting card was also recovered during the search operation of Jamali Khan, at Delhi. On the basis of all this material, District Magistrate, Udhampur, detained him for two years under the Act. Hence this petition. 3. Subsequently his visiting card was also recovered during the search operation of Jamali Khan, at Delhi. On the basis of all this material, District Magistrate, Udhampur, detained him for two years under the Act. Hence this petition. 3. Denying allegations appearing in the grounds of detention, ii is averred in the instant petition that the detenu has never been tried or prosecuted in any offence and his involvement in hawala transaction has been falsely projected. He came to be arrested on 14-11-2007 and since then he is in custody. On 27-12-2007, he was sent to jail for undergoing the period of detention on the basis of detention order dated 19-12-2007. His stand is that the detention order, on the face it, is bad, illegal, arbitrary and violative of fundamental rights. 4. Pursuant to notice, Mr. B.S. Salathia, the then Additional Advocate General put in appearance on behalf of the respondents and was granted time to file counter affidavit. Since the same was not filed for a considerable period, despite being afforded last opportunity, the right to file the same was closed by the Court vide order dated 26th of May, 2008. Mr. Gupta, learned Additional Advocate General, who is now the custodian of the state brief submits that a D.O. letter has already been sent to the District Magistrate, Udhampur, in this regard and he is taking up this matter seriously on administrative side. He states that otherwise the counter affidavit on behalf of respondent-2 was subsequently filed with the Registry in first week of September, 2008, copy thereof was also handed over to the learned counsel for the petitioner in advance and, therefore, the same may be allowed to be taken on record. Since Mr. Abrol has not raised any objection to it, the said counter affidavit is now taken on record. 5. Mr. Gupta has also produced the detention record (dossier of the detenu) for perusal of the Court. 6. Heard both the sides. The foremost argument advanced by Mr. Abrol in support of his case is that in the grounds of detention, there is a reference to two main persons, viz., one Ghulam Mohd. Bhat and the other is Jamali Khan to whom the detenu was allegedly delivering hawala money. 6. Heard both the sides. The foremost argument advanced by Mr. Abrol in support of his case is that in the grounds of detention, there is a reference to two main persons, viz., one Ghulam Mohd. Bhat and the other is Jamali Khan to whom the detenu was allegedly delivering hawala money. Both these persons were also booked separately under section 8 of the Act by District Magistrate, Udhampur and their detentions have been quashed in two different writs bearing HCP No. 10/2008 decided on 23-05-2008 and OWP No. 143/2008 decided on 16-09-2008. (Photostat copies of the judgments produced and taken on record). Mr. Abrol submits that the case of the present detenu is also at par with that of aforesaid two persons and, therefore, the detention order qua him also deserves to be quashed. 7. Mr. Abrol then submits that if one reads the grounds of detention thoroughly, the main ground for detaining the detenu under the Act is that in the event of he being released on bail in near future, there was likelihood of his being continuing in anti-national activities. Such satisfaction has to be recorded by the detaining authority on the basis of some material and not on mere ipsi dixit. In the present case, the order does not indicate application of mind by the detaining authority at all and, in fact, there was no material available with it to say so. According to learned counsel, the detenu had not even applied for bail in the aforesaid case of unlawful activity and, therefore, there could not be any justification for passing the detention order. This flaw knocks at the bottom and is sufficient for quashing the said order. In support of his contentions, Mr. Abrol has relied upon the following judgments rendered by this Court: (i) Mohd. Akbar Rathore Vs. State and another, 2006 (1) JKJ HC-245 (ii) Mohd. Ayub Gujri Vs. State of J&K & Ors. 2006 (1) JKJ HC-297 (iii) Mohd. Yaqub Vs. State of J&K & Anr. 2007 (2) JKJ HC-200 8. Mr. Abrol then submits that no material was supplied to the detenu for making effective representation and, therefore, his valuable right is infringed. State and another, 2006 (1) JKJ HC-245 (ii) Mohd. Ayub Gujri Vs. State of J&K & Ors. 2006 (1) JKJ HC-297 (iii) Mohd. Yaqub Vs. State of J&K & Anr. 2007 (2) JKJ HC-200 8. Mr. Abrol then submits that no material was supplied to the detenu for making effective representation and, therefore, his valuable right is infringed. Developing his view point, he submits that the detenu was not supplied with the copy of the dossier, report of the SP concerned or other incriminating material so as to make an effective representation to the Advisory Committee and on this count also, the order of detention is liable to be struck down. To support his arguments, he once again relies upon aforesaid judgment rendered in Mohd. Yaqubs case. 9. Mr. Abrol then submits that the District Magistrate, Udhampur (respondent-2) has not shown that from where and on the basis of what record, he has acquired knowledge about the alleged activities mentioned in the grounds of detention and it appears that he has just dittoed whatever was presented before him without satisfying himself about the entire facts. This again is a serious flaw to hold the detention order unsustainable in the eye of law. 10. Mr. Abrol lastly submits that the detenu is suffering from chronic diseases like Diabetes and Hypertension. He is having three daughters and his entire family is dependent upon him, being the sole bread winner. He is otherwise a well reputed businessman and an income tax assessee, as is clear from Annexure-A. His detention has brought a stigma to his entire family which has its adverse effect to a large extent. 11. Per contra Mr. Gupta vehemently submits that the detenu has deep links with dreaded militant outfits as he was supplying the hawala money to different organizations since long and, therefore, his activities are highly prejudicial to the security of the State and Union of India. His case is otherwise distinguishable on facts from the case of aforesaid two persons, who have already got the relief from this Court and therefore, the instant petition deserves to be rejected. 12. What needs to be appreciated in this case is as to whether the decision arrived at by the detaining authority reflects proper application of mind and that all the relevant and vital material for the purpose have been noticed, adverted to and considered. 13. 12. What needs to be appreciated in this case is as to whether the decision arrived at by the detaining authority reflects proper application of mind and that all the relevant and vital material for the purpose have been noticed, adverted to and considered. 13. It is well settled that this Court should not ordinarily sit in appeal over the detention order so as to re-appreciate the material which is made basis of substantive satisfaction of the detaining authority. But at the same time, it does not mean that if, on the face of it, the detention order speaks volumes of non-application of mind, still it would not fall within the scope of judicial review. Therefore, I am testing the case on hand from that aspect and this would also cover the other arguments advanced by Mr. Abrol. 14. At the very outset, I may observe here that the relief granted to aforesaid two persons, namely, Ghulam Mohd. Bhat and Jamali Khan to whom the detenu had allegedly delivered hawala money, in my view, would be of no help to him. I have gone through those judgments rendered by this Court in two separate writ petitions filed by the said two persons. Ghulam Mohd. Bhat had assailed his detention order on altogether different grounds which, in my view, are not available to the detenu. Similarly judgment rendered by this Court in Jamali Khans case would again not put the detenu on any advantageous position, as in the second case, the detention order was quashed mainly on non-disclosure of the nature of material in the grounds of detention on the basis whereof, the District Magistrate had proceeded to detain him under section 8 of the Act. Therefore, in my considered view, Mr. Abrol cannot derive any benefit from these two judgments and this case calls for appreciation on its own facts. 15. Let us now advert to main limb of argument advanced by Mr. Abrol with regard to non-application of mind by the detaining authority. The attack launched by him is that in the detention order, it is stated that in the event of the detenu being released on bail in near future, there was likelihood of he being continuing in anti-national activities, whereas there was no material available with the detaining authority to say so, more so when the detenue had not even applied for the bail. The judgments rendered by this Court in Mohd. Akbar Rathores, Mohd. Ayub Gujris and Mohd. Yaqubs cases and cited by Mr. Abrol in support of his submissions, in my view, are distinguishable on facts and do not advance the case of the detenu. No doubt, in the grounds of detention, District Magistrate, Udhampur (respondent-2) has not said a word about the fact that the bail application was pending, but that fact by itself would not make any difference for the reason that the entire track record of the detenu was seen and after considering the same, the District Magistrate has said that may be the detenu is in custody, but there is likelihood that if he is released on bail in near future, he being at large would continue his subversive and anti-national activities and, therefore, it was necessary to detain him under the Act. In so many words, the involvement of the detenu is projected in different hawala scandals. For reference, one para from the grounds of detention calls for reproduction, which reads thus: Whereas your involvement in hawala scandals has been established in case FIR No: 252/07 U/S 17/18/21/24/40 of Un-Lawful Activities (Prevention) Amendment Act 2004 P/S Udhampur after the recovery of huge amount from your associates generated through the terrorist fund abroad. Jamali Khan during his initial interrogation admitted that part of Hawala money (Rs. 8.40 lacs) recovered from the CNG Cylinder was given to him by you. 16. If one reads the grounds of detention minutely, the detenu started his nefarious activities in year 2001 when he was introduced by one Naresh to his master, the proprietor of Sheeba LCC namely Babu Jethani R/O Ajmer presently settled at Dubai, a Sindi by caste. He is the person who had motivated him to work in hawala transaction. In the month of March, 2002 also, the detenu was directed by aforesaid Naresh to handover Rupees two lac from Hawala money to Jamali Khani and the said money was accordingly delivered by him to Jamali Khan. Since then he was continuing his hawala transactions with him. All this Hawala money was for funding the banned terrorist organizations. This all material was placed before the District Magistrate and thereafter he made his subjective satisfaction on the basis of the said material. 17. While dealing, with almost the similar fact situation, Honble Supreme Court in case Senthamilselvi Versus. Since then he was continuing his hawala transactions with him. All this Hawala money was for funding the banned terrorist organizations. This all material was placed before the District Magistrate and thereafter he made his subjective satisfaction on the basis of the said material. 17. While dealing, with almost the similar fact situation, Honble Supreme Court in case Senthamilselvi Versus. State of Tamil Nadu and another, (2006) 5 SCC 676, wherein the detention order was passed by the detaining authority when the alleged detenu had not filed any bail application, the plea taken was that since there was no application filed on behalf of the detenu, the detaining authority could not infer that there was possibility pf his being released on bail. Their Lordships upheld the view of the Tamil Nadu High Court observing that it was justified in rejecting the stand of the appellant. It was further observed that whether prayer for bail would be accepted depends on circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. It was further observed that on the basis of the material before the detaining authority, if came to the conclusion that there was likelihood of detenu being released on bail and this was the subjective satisfaction based on material and normally, such satisfaction is not inferred with. Apex Court considered the aforesaid case as not a normal case. 18. At the cost of repetition, I may observe here that the detaining authority has made its subjective satisfaction from the entire material produced before it against the detenu and then came to the conclusion that in the event of being released on bail, he was likely to revive his anti-national activities. The case of the detenu, in my view, is again not a normal case and has to be appreciated with different yardstick. 19. So following the ratio of Senthamilselvis case (Supra) in my view, arguments of Mr. Abrol cannot be considered in his favour at all. This discussion, in other words, also covers his argument with regard to the basis of acquiring knowledge by the detaining authority about the alleged activities. 19. So following the ratio of Senthamilselvis case (Supra) in my view, arguments of Mr. Abrol cannot be considered in his favour at all. This discussion, in other words, also covers his argument with regard to the basis of acquiring knowledge by the detaining authority about the alleged activities. It cannot be said that the detaining authority has just dittoed whatever was presented before it by the State police without satisfying itself about the entire facts. 20. Much has been said by Mr. Abrol on non-supplying of the material to the detenu for making an effective representation and, thus, infringing his valuable right. This contention also deserves to be repelled, as it does not get support from the dossier of the detenu perusal whereof indicates that the contents of the detention warrant and grounds of detention were read over and explained to the detenu on 27th of December, 2007 through a police officer (Executing Officer) in his language and he in token of the same appended his signatures. The signatures are in English. Whatever is stated in the grounds of detention, in my view, was the entire material collected against detenu and he was also apprised of the same. In the order passed by State Advisory Board constituted under section 14 of the Act, it is mentioned in so many words that the grounds of detention was provided to the detenu to make an effective representation to the Government if he so desired. The Board also examined the record and heard the detenu personally in the premises at Central Jail, Kote Bhalwal, Jammu. He did not make any representation before the Government with regard to his non-involvement in the militancy/regarding Hawala money transaction as depicted in the grounds of detention. In the order of Advisory Board, it is also mentioned that the detenue could not controvert the allegations levelled against him during the course of personal hearing by producing oral or documentary evidence. The Board ultimately was convinced that he is instrument in arrangement of Hawala money to be used for terrorists to carry out subversive activities in the State. Therefore, the action of the District Magistrate, Udhampur (respondent-2) was approved by the Board. This all is the answer to the argument advanced by Mr. Abrol on this aspect. The Board ultimately was convinced that he is instrument in arrangement of Hawala money to be used for terrorists to carry out subversive activities in the State. Therefore, the action of the District Magistrate, Udhampur (respondent-2) was approved by the Board. This all is the answer to the argument advanced by Mr. Abrol on this aspect. Suffering from any chronic disease like diabetes or hypertension cannot be just considered as any good or sound ground for quashment of detention order, if it is otherwise not suffering from inherent infirmity. 21. In my view, no other point is left untouched by me while considering the present case. From the aforesaid discussion, it cannot be said that the allegations against the detenu that lie is a hawala courier and dispatch rider for certain terrorists organizations involved in carrying out anti-national and subversive activities in the State and outside the State are based upon no material. For drawing its requisite satisfaction, the detenu could reasonably be considered by the detaining authority as an active hawala operator who used to supply the hawala money to different persons having deep-rooted links with the terrorists outfits. Terrorists activities cannot be carried out by the militant organizations without there being financial resources. The gravity of the offence of the persons involved in providing financial support to militants organizations is certainly of a higher degree even in comparison to those who actually carry on ground level sinister operations. The detenu like persons, for the health of the society, deserves to be de-activated. 22. No doubt, the right to life and personal liberty is the most cherished of all the rights guaranteed under the Constitution of India and no one can trample upon it in a casual manner, unless there are compelling circumstances to do so. But, in the present case, in my view, the detention order passed by District Magistrate, Udhampur (respondent-2) does not suffer from any infirmity on any count, falling within the scope of judicial review, so as to call it bad in the eye of law. In fact, it is based on the subjective satisfaction of the detaining authority after re-assessing the entire material on record. It reflects due and proper application of mind of the detaining authority in which all relevant and vital material has been noticed, adverted to and then considered. 23. In fact, it is based on the subjective satisfaction of the detaining authority after re-assessing the entire material on record. It reflects due and proper application of mind of the detaining authority in which all relevant and vital material has been noticed, adverted to and then considered. 23. Resultantly, finding no merit in the instant petition, the same is hereby dismissed. Detention record supplied by Mr. Gupta for the perusal of this Court is being returned.