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2020 DIGILAW 553 (JK)

Abdul Hameed Mir v. State of J&K

2020-10-23

SINDHU SHARMA

body2020
Judgment Sindhu Sharma, J.—The District Magistrate, Kupwara vide his detention order No.19/DMK/PSA of 2019 dated 17.07.2019 detained Abdul Hameed Mir S/o Late Mohammad Sultam Mir, 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 indulging in activities in any manner prejudicial to the security of the state. The detenu has challenged his detention through his father-in-law, Ghulam Hassan Dar. 2. The case set up by the detenu in the petition is that the police had falsely implicated the detenu in FIR No. 393/2017 under Sections 307, 212 RPC, 7/27 Arms Act, 19 ULA (P) Act, registered at Police Station, Handwara on false and flimsy grounds. Pursuant to the impugned detention order, the detenu has been taken under preventive detention. 3. The detention order has been challenged by the detenu on the grounds that; (i) the same has been passed without any application of mind as there was no cogent and compelling reason for passing the order of detention; (ii) the grounds of detention are replica of the dossier as there is no application of mind by the Detaining Authority; (iii) the detenu has not been granted any opportunity of being heard by the Advisory Board; (iv) the grounds of detention are vague, uncertain, unreal, untrue, indefinite and ambiguous in all material particulars, therefore, the detention is unsustainable; (v) all the material replied upon by the Detaining Authority has not been provided to the detenu and this has resulted in an infraction of his right as guaranteed under Article 22(5) of the Constitution of India and Section 13 of the Public Safety Act. 4. Respondents have filed the counter affidavit as well as produced the detention record. 5. Mr. Sajjad Ashraf, learned Government Advocate appearing on behalf of the respondents, submits that the detenu was detained by virtue of detention order bearing No. 19/DMK/PSA of 2019 dated 17.07.2019 passed by the District Magistrate, Kupwara validly for his activities which were prejudicial to the security of the state. All the statutory requirements and constitutional guarantees as provided to the detenu have been fulfilled and complied with. All the statutory requirements and constitutional guarantees as provided to the detenu have been fulfilled and complied with. It is also submitted that in compliance to the District Magistrate’s order, the warrant was, accordingly, executed by the Executing Officer-ASI Abdul Majid, No.39/H Police Station, Handwara, who has read over and explained the warrant and grounds of detention to the detenu in the language, he understands and the detenu was also informed of his right to make a representation to the Detaining Authority as well as the Government against his detention. The detenu has been provided all the material relied upon by the Detaining Authority alongwith translated copies of the same were provided to him. He, however, has not made any representation against his detention. 6. Heard learned counsel for the parties and perused the record. 7. The grounds of detention reveals that the detenu is over ground worker of Lashker-E-Toiba outfit, he aids and abets in the terrorist activities in the state of J&K. He was involved in various unlawful activities providing logistic support to the militants. The detenu was also found to be involved in FIR No. 393/2017 u/s 307, 212 RPC, 7/27 Arms Act, 19 ULA(P) Act registered at Police Station, Handwara, FIR No. 337/2016 u/s 188, 148, 149, 307, 336, 332, 427 RPC. The detenu had secured bail in FIR No. 393/2017 and, therefore, there was an apprehension based on reliable inputs that he would cause disturbance of law and order. The Detaining Authority on the basis of material produced arrived at its subjective satisfaction that there exists cogent grounds to concur the detenu would pose grave danger to the security of the state. 8. One of the most precious right as guaranteed under the Constitution of India is personal liberty. No one can be denied of his right to life and personal liberty except in accordance with procedure established by law. Though, this personal liberty may be curtailed when person faces a criminal charge or is convicted of an offence sentenced to imprisonment. The Constitution, however, by adding Article 22(5) have incorporated detention of a person without any formal charge and trial and without such person being held guilty of an offence and sentenced by a competent court. This is to keep the society safe from such activities that are likely to deprive large people of their right to life and personal liberty. The Constitution, however, by adding Article 22(5) have incorporated detention of a person without any formal charge and trial and without such person being held guilty of an offence and sentenced by a competent court. This is to keep the society safe from such activities that are likely to deprive large people of their right to life and personal liberty. The justification of such detention is suspicion or reasonability which requires action to be taken to prevent apprehended objectionable activities, Article 22(5) of the Constitution provides for the same. 9. In State of Maharashtra and others v. Bhaurao Punjabrao Gawande, (2008) 2 SCC 613, it has held that: “36. Liberty of an individual has to be subordinated within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.” It was held that the preventive detention requires an action to be taken to prevent objectionable activities and need to maintain order in society without which enjoyment of all rights including right of personal liberty would lose their meaning. 10. Hon’ble the Supreme Court in Haradhan Saha and another vs. 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 overlap 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, 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. 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.” 11. In Naresh Kumar Goyal vs. Union of India, (2005) 8 SCC 276 , the Apex Court observed as under:- “It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. 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 done something but to intercept before he does it, and to prevent him from doing so.” 12. The Detaining Authority after considering all the material relied upon has arrived at its requisite subjective satisfaction that the detenu is required to be detained in terms of Section 8 of the Public Safety Act. The Government has approved the detention order vide order dated 27.07.2019. The case of the detenu was also referred to the Advisory Board and the Advisory Board vide its order dated 08.08.2019 was of the opinion that there was sufficient cause for detaining the detenu. The Government after the receipt of the opinion of the Advisory Board vide order dated 17.07.2019 directed the detenu to be detained for a period of six months and thereafter again vide order dated 08.07.2020 extended it further for a period of six months. 13. The Government after the receipt of the opinion of the Advisory Board vide order dated 17.07.2019 directed the detenu to be detained for a period of six months and thereafter again vide order dated 08.07.2020 extended it further for a period of six months. 13. It was next argued that the detenu has not been provided all the material relied upon by the Detaining Authority while passing the order of detention. Perusal of the record reveals that in terms of the execution report by the Executing Officer, ASI Abdul Majid, the detenu has been provided all the material relied upon by the Detaining Authority. Affidavit of the Executing Officer is also on record stating that the detention order was explained to the detenu in the language, he understands. Thus, all the material relied including translated copies of the same have also been furnished to the detenu, who did not choose to make any representation against his order of detention. The detenu has been informed with sufficient clarity that what weighed in the mind of the Detaining Authority for passing the impugned order of detention. All the requirements as contemplated under the Act were complied with and found sufficient cause for detaining the detenu. The grounds of detention are proximate and free from any ambiguity. The Detaining Authority has also reflected the facts and figures and compelling reasons, required before exercising his powers under Section 8 of the Public Safety Act and recorded the subjective satisfaction. The detenu was required to be placed under preventive detention in order to prevent him from committing any such Act. The Detaining Authority has also informed that the detenu being at large is a threat to the security of the state, therefore, the detenu is detained in terms of the Public Safety Act. None of the constitutional and statutory right of the detenu has been violated while the detention order was issued and executed. 14. In view of the aforesaid facts and the law laid down by the Hon’ble Supreme Court, there is no merit in this petition and the same is, accordingly, dismissed. 15. Detention record be handed over to learned counsel for the respondents by the Registry forthwith.