Massodi, J.— 1. District Magistrate Jammu respondent No.2 in Letters Patent Appeal on hand, vide Order No.01/PSA of 2012 dated 11th April 2012, ordered detention of appellant to prevent him from acting in any manner prejudicial to maintenance of public order. The order was passed in exercise of powers under Section 8(1)(a), J&K Public Safety Act, 1978,on consideration of dossier received from Senior Superintendent of Police, Jammu, on 7th April 2012. 2. The appellant avoided execution of detention order and respondent No.2 vide No. DMJ/PSA/131-36 dated 30th April 2012, in exercise of powers under Section 12(b), J&K Public Safety Act, 1978, issued notice to appellant, requiring appellant to appear before him within 30 days from the date of receipt of order. 3. Before any further action would be taken by respondent No.2 to ensure execution of detention order, appellant filed writ petition, being OWP No.729/2012, before this Court. The Writ Court on 24th July 2012, passed ad-interim order, directing respondents not to detain appellant and also stayed operation of process for attachment of appellants property. 4. The order dated 24th July 2012, was questioned in LPA (OW) No.60/2012. The LPA Court declined to interfere and instead asked Learned Single Judge lo dispose of main petition. 5. The writ petition came to be dismissed on 8th October 2012. Learned Single Judge took the view that criminal acts attributed to a person sought to be placed under preventive detention may at times not only affect law and order but also public order and that criminal acts mentioned in grounds of detention as alleged against appellant would definitely have affect on the tempo of life and thus consequently on the public order. Learned Single Judge rejected the contention that grounds of detention mostly referred to past activities of appellant and were remote in point of time and could not be used to order preventive detention. In the opinion of learned Single Judge, appellant, in facts and circumstances of case, could not draw any support from law laid down in K.K. Sarvana Babu v. State of Tamil Nadu and Anr. [2008 (9) SC 89]. It was held that grounds of detention would, in all circumstances, lead a reasonable person to conclusion that these .activities were of such a nature, which would have affect on the public order. The writ petition was held meritless and accordingly dismissed. 6.
[2008 (9) SC 89]. It was held that grounds of detention would, in all circumstances, lead a reasonable person to conclusion that these .activities were of such a nature, which would have affect on the public order. The writ petition was held meritless and accordingly dismissed. 6. The writ court judgement dated 8th October 2012 is questioned in the present Letters Patent Appeal on the grounds that case, set up by appellant to assail detention order, has not been dealt with, let alone appreciated by Writ Court in right perspective. It is insisted that as Senior Superintendent of Police, Jammu, in his dossier dated 7th April 2012, withheld important information from Detaining Authority, the detention order is liable to be quashed. The appellant insists that had aforesaid information been provided, Detaining Authority would have felt dissuaded from passing detention order. Reference, in particular, is made to case FIR Nos.152/2007, 79/2010, 42/2012, 80/2012, mentioned in the dossier and shown to have been registered against appellant. It is pleaded that appellant has since been acquitted in case FIR No.71/1999 a fact not brought to the notice of Detaining Authority. Senior Superintendent of Police, Jammu, is said to have also withheld information as regards status of case FIR No.152/2007, and information that investigation of FIR No.42/2012 and 80/2012 stood concluded and charge-sheet presented in competent court. 7. The appellant, placing reliance on law laid down in AIR 2009 SC (268), insists that detention order on said ground ought to have been held illegal and set-aside. It is reiterated that detention order has been passed at the instance of Inspector General of Police, Jammu, (respondent No.3), who, according to appellant, is a close associate of respondents 6 to 8. The detention order is said to be fallout of OWP No.379/2012 and petition under section 561-A Cr.P.C, filed by appellant to seek investigation of case FIR No.42/2012 through an independent agency like Central Bureau of Investigation, and quashment of FIR No.80/2012 on the grounds that the case was registered on mala fide grounds at the instance of respondent No.3. 8.
The detention order is said to be fallout of OWP No.379/2012 and petition under section 561-A Cr.P.C, filed by appellant to seek investigation of case FIR No.42/2012 through an independent agency like Central Bureau of Investigation, and quashment of FIR No.80/2012 on the grounds that the case was registered on mala fide grounds at the instance of respondent No.3. 8. It is insisted that once the Court arrives at the conclusion that detention order is illegal, there is no reason for the Court to deny interference at pre-execution stage, allow detention order to be executed and look into the matter after the person, against whom detention order is passed, is detained and taken into custody. Learned Single Judge, according to appellant, did not appreciate that detention order was made on vague, ambiguous and extraneous material, and therefore, not sustainable under law. The Writ Court is said to have dismissed writ petition notwithstanding the fact that the averments made in the petition and material placed on record, indicated total non-application of mind on part of detaining authority. The detention order is alleged to be nothing but an effort by respondents, including respondent No.3, to punish the appellant for alleged omission and commissions, remote in point of time and having no nexus with order impugned in writ petition. 9. It is next urged that the incidents referred to in the grounds of detention, are stray incidents and not interconnected as would justify passing of detention order on the ground that the apprehended activities of the appellant were likely to be prejudicial to maintenance of public order. Learned Single Judge is said to have not given due importance to the law laid down in AIR 1970 SC 814 and 2008 (9) SCC 89 , referred to and relied upon by counsel for appellant during course of arguments. It is insisted that as there is no live and proximate link between the grounds of detention and detention order, the detention order is liable to be set-aside. 10. We have gone through the writ court judgement, the grounds set out in the memorandum of appeal as also the writ record. We have heard counsel for the parties. 11. Preventive detention is repugnant to the rule of law a concept, on which a democratic polity, like ours, has its edifice or foundation.
10. We have gone through the writ court judgement, the grounds set out in the memorandum of appeal as also the writ record. We have heard counsel for the parties. 11. Preventive detention is repugnant to the rule of law a concept, on which a democratic polity, like ours, has its edifice or foundation. A person, taken into preventive custody, is deprived of his personal liberty, without a formal charge and without trial. Framers of the Constitution, nonetheless, have left room for preventive detention law to pre-empt a person from indulging in activities, likely to endanger the society. Since the authority, conferred power to order preventive detention of a person, acts on a mere suspicion regarding future activities of a person, it is necessary that the grounds that prompt authority to pass detention order, are communicated to detenue with proper despatch and detenue informed that he has a right to represent against his preventive detention and make an effort to dispel the suspicion regarding his apprehended activities. The detaining authority, while passing detention order, frames an opinion on the basis of past conduct of detenue in light of surrounding circumstances that future activities of detenue are likely to prejudice security of State or public order. 12. It is pertinent to point out that as preventive detention in words of the Apex Court in State of Madras v. V.G. Row [ AIR 1952 SC 196 ], is largely precautionary and based on suspicion, the detaining authority, while placing the person under preventive detention, has to arrive at subjective rather than objective satisfaction regarding fallout of apprehended or future activities of a person against the backdrop of his past record and the current situation. The High Court, in the circumstances, cannot widen scope of judicial review, to look into the sufficiency of grounds for slapping preventive detention order or to examine whether the detaining authority had a good reason to make use of power under preventive detention law. 13.
The High Court, in the circumstances, cannot widen scope of judicial review, to look into the sufficiency of grounds for slapping preventive detention order or to examine whether the detaining authority had a good reason to make use of power under preventive detention law. 13. However, the High Court in exercise of its extra ordinary writ jurisdiction, alive to its constitutional obligation to ensure that right to personal liberty guaranteed under Article 21, Constitution of India, js not infringed or interfered with except in accordance with procedure established under law, would examine whether Constitutional safeguards guaranteed under Article 22(5), Constitution of India, read with Statutory safeguards available under preventive detention law, have been adhered to and respected while directing preventive detention. The safeguards, we may recall, are to convey grounds of detention, handover all the material that weighed with the detaining authority while recording its subjective satisfaction as regards past and apprehended activities of the detenue and to inform the detenue that he may make a representation against his detention to the detaining authority, and thereafter to the Government to make an effort to convince the authorities that all suspicion nursed as regards his apprehended or future activities are devoid of any substance and grossly misplaced. 14. The Constitutional and Statutory safeguards come into play mostly after detention order is executed and the person taken into preventive custody. To illustrate the detenue can be conveyed grounds of detention and given copies of all the documents relied upon by the detaining authority, once he is taken into custody in execution of detention order. Again the detenue can be informed that he has a right to make a representah on against his detention only after he is taken into custody. 15. The question arises whether a person, against whom detention order is made, can assail the detention order prior to its execution and before he is taken into custody and if so, the grounds that can be pressed into service by such a person to throw challenge to detention order.
15. The question arises whether a person, against whom detention order is made, can assail the detention order prior to its execution and before he is taken into custody and if so, the grounds that can be pressed into service by such a person to throw challenge to detention order. The detention order, obviously, cannot be challenged at pre-execution stage on the ground that the person, proposed to be detained, has not been conveyed grounds of detention, that the material relied upon by detaining authority has not been supplied to him or that he has not been informed that he has a right to make a representation against his detention. It is no more res Integra that a person, on whom detention order is slapped, may question the order at pre-execution stage, in case detention order is illegal. It would be unjust to allow a person to be taken into custody and legality of order looked into only after the detention order is executed. Arrest and detention, whether in execution of detention order or otherwise, curtails personal liberty of a person, has a harmful fallout on reputation and standing of a person in society and a negative spill-over for his family and friends. In the circumstances it would be highly unjust to decline interference, even where detention order is illegal and likely to be set-aside at post-execution stage. The High Court, as laid down in Additional Secretary to the Government of India & Ors. v. Smt. Alka Subhash Gadia & Anr. [1992 (Suppl. 1) SCC 496] and re-emphasised in Subhash Popatlal Dave v. Union of India & Anr. [ AIR 2012 SC 3370 ], being ultimate assurance against illegal detention, has a power to examine legality of a detention order at pre-execution stage. 16. The fact, however, remains that scope and ambit of interference at pre-execution stage is not as wide as after the detention order is executed and the person against whom it is directed, is taken into custody. The grounds, on which the Court would interfere at pre-execution "stage as laid down in Deepak Bajaj v. State of Maharashtra [(2008)16 SCC 14] would be few and necessarily very limited in scope and number. The jurisdiction by its very nature is to be used sparingly having regard to time honoured and well tested judicial self-restraints.
The grounds, on which the Court would interfere at pre-execution "stage as laid down in Deepak Bajaj v. State of Maharashtra [(2008)16 SCC 14] would be few and necessarily very limited in scope and number. The jurisdiction by its very nature is to be used sparingly having regard to time honoured and well tested judicial self-restraints. The Court has to be slow in interference with detention order at pre-execution stage as the device is precautionary in nature and aimed to save the society from a risk that cannot be prevented by recourse to normal law and secondly that the preventive detention law provides inbuilt mechanism to redress the grievance of a person detained on erroneous grounds and baseless material. The detention order is to lose its force, in case it does not find approval of Government within 12 days after it is made. The Government obviously is to look into detention order and grounds of detention as also other material and satisfy itself that a case is made out for approval of detention order. Even where detention order gets approval of the Government, the matter is to be placed within four weeks before the Advisory Board having former Judge of the High Court as its Chairman and a person(s) eligible to be appointed as Judge of the High Court as its member(s). The Advisory Board has to examine the record and it is only after it submits its report that the period of detention is to be determined by the Government. The Board has to give its opinion as to whether there is sufficient cause for the detention of the person concerned. 17. The Supreme Court in Smt. Alka Subhash Gadia's case (supra) examined the scope of judicial review and identified following five circumstances in which the Court may interfere with the detention order even at pre execution stage: "(i) that the impugned order is not passed under the Act, under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no power to do so." 18. The five circumstances, identified in Smt. Alka Subhash Gadia's case, as held in Deepak Bajajs case, are only illustrative and not exhaustive in nature.
The five circumstances, identified in Smt. Alka Subhash Gadia's case, as held in Deepak Bajajs case, are only illustrative and not exhaustive in nature. It follows that the Court may quash detention order at pre-execution stage in case it is satisfied, in the facts and circumstances of the case, that interference is warranted even if the case projected does not fall within one of the five circumstances laid down in Smt. Alka Subhash Gadia's case. 19. The main plank of the appellants case is that Senior Superintendent of Police, Jammu, while giving his inputs to the detaining authority withheld information regarding acquittal of appellant in case FIR No.71/1999 and that the dossier also did not indicate that the investigation in case FIR Nos.152/2007, 42/2012 and 80/2012, stood concluded and charge sheets presented in the competent court. The Senior Superintendent of Police, in dossier submitted to detaining authority, reported as under: "The subject is a History Sheeter, hardcore criminal, desperate character and habitual of indulging in acts of violence, such as Murder, attempt to Murder and assault etc. The subject is involved in numerous criminal activities of serious and heinous nature over a period of time and has spread a reign of terror amongst the peace loving people of the area and his activities are prejudicial to the maintenance of public order." 20. To reinforce the above statement, reference was made to five criminal cases, registered against appellant in different police stations of Jammu. The reference to cases registered against appellant, was illustrative of the appellants track record. The omission on the part of Senior Superintendent of Police, to mention that one of the cases registered against the appellant had ended in his acquittal, would not make any difference and render the detention order illegal, so as to warrant its quashment at the pre-execution stage. The argument that the occurrence attributed to appellant in the criminal cases, registered in different police stations of Jammu, are remote in point of time, or there is no live link between the occurrence referred to in the dossier and detention order or that grounds of detention are vague, ambiguous and stale, and would, therefore, warrant interference, is again without substance. Two of the five criminal cases mentioned in the dossier, have been registered in 2012 and one such case has been registered in 2010.
Two of the five criminal cases mentioned in the dossier, have been registered in 2012 and one such case has been registered in 2010. i.e. less than two years before the detention order in question was made. The occurrences, therefore, cannot be labelled as distant in point of time. 21. The next ground, urged before Learned Single Judge and reiterated in the memorandum of Appeal, alleging mala fides against respondent No.3, does not inspire any confidence. The alleged criminal activities of the appellant are spread over a period of last more than ten years. The case FIR No.152/2001 under Section 302, 451,148,149, 34 RFC, 3/25,4/25 A. Act P/S Nowabad, relates to occurrence that allegedly took place in 2001. Similarly other occurrences are alleged to have taken place in 2010 and 2012. It is nobody's case that respondent No.3 held a key position in the police department when case FIR No.152/2001 under Section 302, 451, 148, 149, 34 RPC, 3/25, 4/25 A. Act and FIR No.79/2010 under section 4/15 A. Act P/S Nowabad, Jammu, were registered against appellant, so as to influence his subordinates to register false and frivolous cases against the appellant. The argument advanced is preposterous and does not sound convincing. 22. So viewed the appellants case does not fall within the five circumstances, identified in Smt. Alka Subhash Gadia's case, where the Court may interfere at pre-execution stage. The appellant is also not in a position to make out a case independent of the five circumstances laid down in the above referred cases. The appellant is not able to show that detention order in question suffers from any illegality or legal infirmity as must persuade the Court to interfere at pre-execution stage and set-aside the order. 23. The appellant cannot draw any support from Sudhir Kumar Saha v. Commissioner of Police, Calcutta, and another [1970 AIR (SC) 814], Deepak Bajaj v. State of Maharashtra [(2008) 16 SCC 14], and State of Maharashtra and others v. Bhaurao Punjabrao Gawande [ AIR 2008 (SC) 1705 ], for the reason that the facts of present case are distinguishable and markedly different from the facts of the cases referred to and relied upon by learned counsel for appellant. 24. For the reasons discussed, we are not persuaded to take a view different from the view taken by learned Single Judge.
24. For the reasons discussed, we are not persuaded to take a view different from the view taken by learned Single Judge. We find challenge to judgement of learned Single Judge meritless and accordingly dismiss the appeal.