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2020 DIGILAW 383 (JK)

Mushtaq Ahmad Mir v. State of J&K

2020-08-11

SINDHU SHARMA

body2020
Judgment District Magistrate, Kupwara vide his order No. 10-DMK/PSA of 2019 dated 16.03.2019 detained Mushtaq Ahmad Mir S/o Gh. Ahmad Mir R/o Rajpora Zachaldara, District Kupwara under Section 8(1)(a)(i) read with clause (ii) of sub-section (2) of Section 8 of the Jammu and Kashmir Public Safety Act, 1978 to prevent him from acting in any manner prejudicial to the security of the State. This order of detention is challenged by the detenu through his cousin brother namely Bilal Ahmad Khan. 02. The detenu has assailed the order of detention on the ground that the allegations made in the grounds of detention are vague, non-existent and, as such, no representation against the said allegations can be made. The alleged occurrence had taken place on 24.12.2018 and thereafter the detenu was arrested and was admitted to bail by the competent court. The Detaining Authority, thereafter, has put the detenu in preventive detention on the ground that the normal law is not sufficient to stop the detenu from acting in the manner prejudicial to the security of the State. The detaining authority has not furnished the relevant material relied upon while passing the order of detention to the detenu. The detenu is not English literate person and understands only Kashmiri and Urdu language but the order of detention is in English and the grounds of detention were not read over and explained to the detenu in the language which he understands nor the translated script of the same has been furnished to him. This has prevented the detenu from making an effective representation which has violated his right under Article 22(5) of the Constitution of India and under Section 13 of the Public Safety Act. The detenu was neither informed that he has right to make effective representation against the detention nor was disclosed to him to which authority and within what period he can make the representation. 03. Mr. Sajad Ashraf, learned Government Advocate has filed counter affidavit as well as produced the detention record. He has submitted that the detaining authority has passed the impugned order of detention to prevent the detenu from acting in any manner prejudicial to the security of the State. 03. Mr. Sajad Ashraf, learned Government Advocate has filed counter affidavit as well as produced the detention record. He has submitted that the detaining authority has passed the impugned order of detention to prevent the detenu from acting in any manner prejudicial to the security of the State. It is also submitted that the detenu was validly and legally detained by virtue of detention order dated 16.03.2019 and grounds of detention, order of detention as well as entire material relied upon by the detaining authority were furnished to the detenu and warrant was executed by the executive officer, ASI Manzoor Ahmad No. 419/H of Police Post, Zachaldara who handed over the detenu against the proper receipt and the detenu subscribed his signature on the execution report. The detenu was also informed of his right to make representation but he chosen not to do so. 04. It is stated by the learned counsel for the respondents that the allegations made against the detenu are neither vague nor non-existent but the detention order has been passed by the authority to prevent the detenu from indulging in any activities which are prejudicial to the security of the State. 05. Heard learned counsel for the parties and perused the record. 06. It is settled law that the preventive detention is precautionary power exercised in reasonable anticipation. Hon’ble the Supreme Court in Haradhan Saha and another V. State of West Bengal and others, (1975) 3 SCC 198 has held that: “32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not over lap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. 07. In Union of India and others V. Arvind Shergill and another, (2000) 7 SCC 601 , it is held that: “……….The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid. The concerned authorities have to take note of the various facts including the fact that this was a solitary incident in the case of the detenu and that he had been granted bail earlier in respect of which the application for cancellation of the same was made but was rejected by the court. In this case, there has been due application of mind by the concerned authority to that aspect of the matter as we have indicated in the course of narration of facts. Therefore, the view taken by the High Court in the circumstances of the case cannot be sustained.” 08. The grounds of impugned detention order dated 16.03.2019 states as under; “The detenu was detained on the ground that he was an Over Ground conduit/worker of Lashkar-e-Toiba (Let) which is a prescribed militant organization under the unlawful activities act, involved in terrorist activities in the state of J&K. the subject often aids and abets the terrorist activities carried out by the terrorists of the Lashkar-e- Toiba (LeT) Outfit in and around the Handwara area specifically in Rajwar area. The Subject besides abetting the terrorist acts of the terrorist outfit Lashkar-e-Toiba (LeT), harbours their terrorists at different locations and provides shelter, communication (means of transport) and transports prohibited arms and ammunition from one place to another on the dictates of the terrorists which is used for carrying attacks on security personnel in State of Jammu and Kashmir.” 09. The detenu was arrested on 24.12.2018 during the naka checking at Sultanpora Bridge when on personal search the detenu and his associates were found in possession of prohibited arms and ammunition, including 02 lives Chinese grenades and 70 live Rds of AK-47 rifle. Such arms were for the use of terrorist activities. On the basis of dossier and the inputs received by the police, it was suggested that the detenu was still in contact with the militants and continuously working as an active hardcore over ground worker of Lashkar-e-Toiba (LeT). In order to maintain the law and order scenario, the detenu who was an under trial in FIR No. 462/2018 and also had been admitted to bail, was taken in preventive custody. The detenu was furnished all the material on the basis of which the impugned detention order was passed. The warrant of detention was executed on 18.03.2019, as per the execution report, the detenu was provided the detention order (02 leaves), Notice regarding detention (01 leaf), grounds of detention (03 leaves) Copy of dossier (03 leaves), copy of FIR Nos. 462/2018 of Police Station Handwara (02 leaves), copy of statements of witnesses u/s 161Cr. P. C (04 leaves), statement u/s 164 Cr. P. C (01 leaf), seizure memo ( 01 leaf), Arrest Memo (01 leaf) and copy of charge sheet (02 leaves), total (20 leaves). Thus, all the material relied upon by the detaining authority, while passing order of detention has been furnished to the detenu to enable him to make an effective representation. This apart, the detaining authority has showed its awareness to the fact that the detenu was in custody in terms of FIR No. 462/2018 and was released on bail. Thus, the detaining authority has passed the order of detention after considering all the relevant material so that the detenu is prevented to act in any manner prejudicial to the security of the State and avoided to spoil the peaceful environment. 10. Thus, the detaining authority has passed the order of detention after considering all the relevant material so that the detenu is prevented to act in any manner prejudicial to the security of the State and avoided to spoil the peaceful environment. 10. Another ground of detention raised by the learned counsel for the detenu is that the detenu only understands Kashmiri Language and the detention as well as the grounds of detention are in hyper technical language, thus, same have neither been read over nor explained to him in language which he understands, therefore, the detention of the detenu has been vitiated and, as such, the same may be quashed. 11. Perusal of the record reveals that ASI Manzoor Ahmad No. 419/H of Police Post Zachaldara has executed the warrants of detention and furnished all the relevant copies to the detenu. His affidavit dated 20.03.2019, is in record which states that at the time of execution of warrants, the detenu was given all the material on the basis of which the detention order came to be passed against the proper receipt and the detenu has also been explained the grounds of detention in his mother tongue language as well as in the presence of Superintendent Central Jail, Kot-Bhalwal Jammu. 12. The grounds of detention are definite, proximate and free from any ambiguity as the detaining authority informed the detenu that he has the right to make a representation in the language which he understands. The detaining authority has also informed him that since he has been enlarged on bail he has resumed his activities, therefore, to prevent him from acting in any manner prejudicial to the security of the State, the detaining authority has detained him. Thus, none of the constitutional and statutory safeguards of the detenu has been violated after the impugned detention order was passed and executed. 13. In view of the above, there is no merit in this petition and the same is, accordingly, dismissed. 14. Let the detention record be handed over to learned counsel for the respondents.