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2020 DIGILAW 197 (JK)

Mohammad Akram Najar v. State of J&K

2020-03-30

TASHI RABSTAN

body2020
JUDGEMENT District Magistrate, Kupwara, has, vide Order no.14-DMK/PSA of 2016 dated 10.08.2016, placed Mohammad Akram Najar son of Ab Gaffar Najar resident of Bicherwa Tehsil Kralgund District Kupwara (for short “detenu”), under preventive detention, which is under challenge in petition on hand on the grounds averred therein. 2. Respondents have filed Counter Affidavit in opposition to the petition. 3. I have heard learned counsel for parties. I have perused the detention record produced by learned counsel for respondents and considered the matter. 4. Learned counsel appearing for petitioner, to augment the case set up by petitioner in writ petition on hand, contends that respondent no.2 detained detenu in terms of impugned order of detention and directed him to be lodged in Sub Jail, Baramulla. However, order of detention was not executed by respondents from 10.08.2016 till 07.03.2019, when respondent no.2 directed that instead of “District Jail, Kotebhalwal, Jammu”, the expression be read as “Central Jail Kotebhalwal, Jammu” with respect to detenu, who was ordered to be detained pursuant to impugned order of detention and resultantly, live- link between impugned order of detention and purpose sought to be achieved thereunder, has since got snapped. He also avers that that respondent no.2 in grounds of detention, has mentioned that detenu is involved in cases bearing FIR nos. 30/2015, 68/2016 and 69/2016. The detenu has, however, been granted bail in FIR nos.92/2016 and 68/2016 and that he has not applied for or granted bail in FIR nos.30/2015 and 69/2016. These facts, according to learned counsel for petitioner, have not been made mention of in grounds of detention and, therefore, impugned order of detention is liable to be quashed. He also states that grounds of detention are ditto copy of dossier inasmuch as impugned detention, as is discernible therefrom, has been passed on the basis of record submitted by Superintendent of Police, Baramulla, and what was the record perused by detaining authority, is not reflected either in grounds of detention nor same has been supplied to petitioner. Grounds of detention are stated to be vague, non-existent and sketchy and resultantly vitiates impugned detention order. 5.Per contra, learned counsel for respondent insists that impugned order of detention could not be executed as detenu was absconding and that when he was arrested he was placed under preventive detention in terms of order impugned. Grounds of detention are stated to be vague, non-existent and sketchy and resultantly vitiates impugned detention order. 5.Per contra, learned counsel for respondent insists that impugned order of detention could not be executed as detenu was absconding and that when he was arrested he was placed under preventive detention in terms of order impugned. He also insists that mere delay in execution of detention order will not vitiate detention order. He, in support of his submission, has placed reliance on Indradeo Mahato v. State of West Bengal, AIR 1973 SC 1062 . 6. Given the case set up, particularly strenuous submissions made by counsel for respondents inasmuch as there was no rebuttal on behalf of counsel for petitioner to the assertions of counsel for respondent and/or there was not any law cited by counsel for petitioner in rebuttal to the law cited by counsel for respondents, it would be in the first instance appropriate to analyse the J&K Public Safety Act, 1978 (for short “Act of 1978”). The Act of 1978 is designed for to prevent the acts, which are prejudicial to security of the State or maintenance of public order. The Act of 1978 has been enacted by the J&K State Legislature in the 29th Year of the Republic of India. The Act of 1978 provides and envisages that in order to prevent a person from indulging in prejudicial activities. Times out of number, it has been emphasized that since the Act of 1978 gives extraordinary powers to the Executive to detain a person without trial, meticulous compliance with the letter and requirements of law is essential for validity of an order of detention made thereunder. The detention under the Act of 1978 is for the purpose of preventing persons from acting in any manner prejudicial to the maintenance of public order. The Act authorises the Government, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State, it is found necessary then the person can be detained. Hence there must be conduct, relevant to the formation of satisfaction having reasonable nexus with the action of detenu, which are prejudicial to maintenance of public order. Hence there must be conduct, relevant to the formation of satisfaction having reasonable nexus with the action of detenu, which are prejudicial to maintenance of public order. Existence of material, relevant to formation of satisfaction and having rational nexus to the formation of satisfaction that because of certain conduct “it is necessary” to make an order “detaining” such person, is subject to judicial review. 7. In the aforesaid facts and circumstances, if conduct of detenu, in the present case, was such that it required preventive detention, not any punitive action, for the purpose of “preventing” him from doing things or indulging in activities which would jeopardise, hamper or affect maintenance of public order, then there must have been action in pursuance of the order of detention with promptitude. Delay, unexplained and not justified, by the circumstances and the exigencies of the situation, is indicative of the fact that detaining authority was not or could not have been satisfied that “preventive custody” of detenu was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. Whether there has been unreasonable delay, depends upon the facts and circumstances of a particular situation. Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, be subject to closest scrutiny and examination by the courts. In the interest of public order, for greater good of community, it becomes imperative for the society to detain a person in order to prevent him and not merely to punish him from the threatened or contemplated or anticipated course of action. Satisfaction of authorities based on conduct must precede action for prevention. Satisfaction entails belief. Satisfaction and belief are subjective. Actions based on subjective satisfaction are objective indication of the existence of subjective satisfaction. Action based on satisfaction should be with speed commensurate with the situation. [See: Shafiq Ahmad v. District Magistrate, Meruti and others, 1990 AIRSC 220]. 8. Satisfaction of authorities based on conduct must precede action for prevention. Satisfaction entails belief. Satisfaction and belief are subjective. Actions based on subjective satisfaction are objective indication of the existence of subjective satisfaction. Action based on satisfaction should be with speed commensurate with the situation. [See: Shafiq Ahmad v. District Magistrate, Meruti and others, 1990 AIRSC 220]. 8. It is pertinent to mention here that Section 12 of the Act 1978 provides that if the Government, or an office specified in Subsection (2) of Section 8 of the Act of 1978, as the case may be, has reason to believe that a person in respect of whom a detention order has been made, has absconded or is concealing himself so that the order cannot be executed, the Government or the Officer may make a report in writing of the fact to a Magistrate of the First Class, having jurisdiction in the place, where the said person ordinarily resides, and thereupon the provisions of Sections 87, 88 and 89 of the Code, shall apply in respect of the said person and his property as if the order directing that he be detained where a warrant issued by the Magistrate and that the Government or the Officer may, by notified order, direct the said person to appear before such officer, at such place and within such period as may be specified in the order, and if the said person fails to comply with such direction, he shall unless he proves that it was not possible for him to comply therewith and that he had within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both. 9. In the present case it is the fact that from 10.08.2018 (the date when impugned order of detention was issued) to 30.03.2019 (when impugned order of detention was executed) no attempt had been made to contact or arrest detenu. No explanation has been furnished for this. There is also no explanation why from August 2018 to March 2019, no attempt had been made. Even it is not coming forth from Counter Affidavit filed by respondent no.2, on its glimpse, unequivocally reflects non-application of mind on part of detaining authority. No explanation has been furnished for this. There is also no explanation why from August 2018 to March 2019, no attempt had been made. Even it is not coming forth from Counter Affidavit filed by respondent no.2, on its glimpse, unequivocally reflects non-application of mind on part of detaining authority. There is no answer / reply to inordinate delay in execution of detention. Therefore, the fact is that there was delay. The further fact is that the delay is unexplained or not warranted by the fact situation. 10. To shift the blame by raising the bogey of conduct of detenu, would not be a proof of genuine or real belief qua the conduct of detenu but only raising a red herring. This question was examined by the Supreme Court in the case of Nizamuddin v. The State of West Bengal (1975) 2 SCR 593 . There was delay of about 2½ months in detaining the detenu pursuant to detention order. The Supreme Court considered that unless the delay was satisfactorily explained, it would throw considerable doubt on the genuineness of the subjective satisfaction of District Magistrate recited in the order of detention as it would be reasonable to assume that if District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that if was necessary to detain the detenu with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing arrest of detenu immediately after invoking of the order of detention, and detenu would not have been allowed to remain at large for such a period of time to carry on his nefarious activities. 11. In the case in hand, from the facts and circumstances set out herein before, I find no reasonable or acceptable explanation for the delay. In a situation of turmoil as has been mentioned in grounds of detention, prompt action is imperative. It is, therefore, not possible for this Court to be satisfied that detaining authority had applied his mind and arrived at “real” and “genuine” subjective satisfaction that it was necessary to detain the detenu to “prevent” him from wrongdoing. The condition precedent, therefore, was not present. 12. It is, therefore, not possible for this Court to be satisfied that detaining authority had applied his mind and arrived at “real” and “genuine” subjective satisfaction that it was necessary to detain the detenu to “prevent” him from wrongdoing. The condition precedent, therefore, was not present. 12. There must be “live and proximate link” between the grounds of detention alleged by detaining authority and the avowed purpose of detention, and in appropriate cases it is possible to assume that the link is “snappedh” if there is a long and unexplained delay between the date of the order of detention and the arrest of detenu. [Vide: Bhawarlal Ganeshmalji v. State of Tamil Nadu& anr, (1979) 2 SCR 633 ] 13. Learned counsel for respondent has drawn my attention to the decision of the Supreme Court in the case of Indradeo Mahato (supra). It was urged that in that case there was no real or genuine apprehension that petitioner there was likely to act in a manner prejudicial to the maintenance of public order. The Supreme Court in the facts of that case was unable to accept the said contention. The Supreme court held that mere failure to take recourse to sections 87 and 88 of the Criminal Procedure Code would be a warrant to believe that the delay was unreasonable. Whether the delay was unreasonable depends on the facts and circumstances of each case. I am satisfied, in view of the facts and circumstances of the present case, canvassed hereinbefore, that by the conduct of detaining authority, there was undue delay, not commensurate with the fact situation in this case. The conduct, as aforesaid, has betrayed that there was real and genuine apprehension that detenu was likely to act in any manner prejudicial to public order. The order, therefore, is bad and must go. 14. It is trite law that an order of detention is not a curative or reformative or punitive action, but a prevention action, avowed object whereof being to prevent antisocial and subversive elements from imperilling the welfare of the State or security of the State or maintenance of public order, etcetera. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having dome something but to intercept before he does it and to prevent him from doing so. It, therefore, becomes imperative on the part of detaining authority as well as executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing detenu and executing detention order because any indifferent attitude on the part of detaining authority or executing authority will defeat the very purpose and aim of preventive detention and turn detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for which no adequate explanation is furnished, leads to assumption that the live and proximate link between grounds of detention and purpose of detention is snapped. [See: P.U. Iqbal v. Union of India (1992) 1 SCC 434 ; Ashok Kumar v. Delhi Admn. (1992) 2 SCC 403; and Naresh Kumar Goyal v. Union of India and others (2005) 8 SCC 276 ] 15. For the foregoing reasons, the petition is disposed of and detention Order no.14-DMK/PSA of 2016 dated 10.08.2016, passed by District Magistrate, Kupwara, quashed. Respondents, including Jail Superintendent concerned, are directed to release the detenu forthwith, unless he is wanted in any other case. Disposed of. 16. Registry to return the record to learned counsel for respondents.