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2020 DIGILAW 716 (JK)

Asif Rashid Mir v. State of J&K

2020-12-30

RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal, J.—Through the medium of this petition, the petitioner has questioned the order of detention bearing No. 12/DBM/PSA/2019 dated 04.07.2019 issued by the respondent No. 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978 (for short the Act). The petitioner has assailed the said detention order on the grounds numerated below:- i) That the Detaining Authority has not followed the constitutional and statutory procedural safeguards as provided under the Article 22(5) of Constitution of India as well as section 13 of the Public Safety Act. ii) That the Detaining Authority has not furnished the material relied upon by the Detaining Authority and that has deprived the petitioner of his right to make an effective and purposeful representation to the Government against the order of detention. iii) That the Detaining Authority has merely acted as a rubber stamp on the report of respondent No. 3, Senior Superintendent of Police, Sopore and there is no subjective satisfaction recorded by the Detaining Authority. iv) That the order of detention has been passed on the irrelevant, vague and non-existent grounds. v) That the detention order has neither been approved within the statutory period nor any reference has been made to the Advisory Board. vi) That the allegations leveled against the petitioner are purely criminal in nature and the respondent No. 2 has failed to demonstrate as to how the ordinary law of the land is not sufficient to deal and deter the petitioner from indulging in activities those are criminal in nature. 2. The respondents have filed the counter affidavit, thereby denying all the grounds taken by the respondents and have also produced the detention record. 3. Learned counsel for the petitioner has reiterated the grounds those have been narrated in the petition. He has relied upon the judgment of the Supreme Court in case V. Shantha v. State of Telangana, (2017) 14 SCC 577 . 4. On the contrary, Mr. Asif Maqbool, learned Dy. 3. Learned counsel for the petitioner has reiterated the grounds those have been narrated in the petition. He has relied upon the judgment of the Supreme Court in case V. Shantha v. State of Telangana, (2017) 14 SCC 577 . 4. On the contrary, Mr. Asif Maqbool, learned Dy. A. G. appearing for the respondents has vehemently submitted that all the procedural requirements for issuance of the detention order have been followed and the detetnue-petitioner was also informed about his right to make representation against the detention order to the Detaining Authority as well as to the Government and also the documents relied upon by the detaining authority for issuance of detention order have been furnished to the detenue. 5. Heard, considered and perused the detention record. 6. Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. In Abdul Latif Abdul Wahab Sheikh v. B. K. Jha reported in (1987) 2 SCC 22 , it has been held by the Apex Court that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any, value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. It is also appropriate to take note of the purpose of preventive detention as laid down by the Apex Court in Haradhan Saha v. State of W.B., reported in (1975) 3 SCC 198 . The relevant para is reproduced as under: “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. 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 is also not a bar to prosecution.” 7. The first contention raised by the petitioner pertains to the non compliance of constitutional as well as statutory obligation by the respondents in issuing the detention order. Article 22(5) of Constitution of India imposes obligation on the part of the Detaining Authority to communicate the detenue, the grounds on which the order of detention has been made as soon as possible and shall also afford him the earliest opportunity to make a representation against the order of detention, whereas section 13 of the Public Safety Act, 1978 (for short the Act) causes statutory obligation on the part of the Detaining Authority that has passed the order to communicate it to the detenue in a language understandable by him, the grounds on which order has been made within a period of five days and in exceptional circumstances, reasons to be recorded not later than ten days from the date of detention. The Detaining Authority is also under statutory obligation to provide earlier opportunity to the detenue to make a representation to the Government against his preventive detention. A perusal of the detention record reveals that the detention warrant was executed on 10.07.2019 and the petitioner was read over the grounds of detention in English and ground of detention were explained to him in a language he understood fully i.e. Kashmiri language. The petitioner has studied up to 12th standard and is not illiterate. The perusal of the execution of detention warrant reveals that the detenu was also informed about his right to make a representation against the detention order to both the Detaining Authority as well as to the Government. Despite having been informed about the grounds of detention and also furnishing of the relevant documents, the petitioner has not chosen to make any representation either to the Detaining Authority or to the Government. Despite having been informed about the grounds of detention and also furnishing of the relevant documents, the petitioner has not chosen to make any representation either to the Detaining Authority or to the Government. Thus, there is compliance of both the Article 22(5) of Constitution of India as well as section 13 of the Act. 8. The second contention raised by the petitioner is that no material, such as grounds of detention and other documents relied upon by the Detaining Authority have been supplied to the petitioner. The grounds of detention have been placed on record by the petitioner along with the petition. The perusal of detention record reveals that the detention order, notice of detention and grounds of detention and other related documents, 21 in number have been handed over to the detenue-petitioner on the date of execution of warrant of detention i.e. 10.07.2019 and the execution report has been duly signed by the petitioner. Further the receipt of grounds of detention reiterates the receipt of the documents by the petitioner. More so, from both the execution report as well as receipt of grounds of detention, it is evident that the grounds of detention were read over to the petitioner in English and explained to him also in Kashmiri language. Thus, petitioner was well aware of all the grounds of detention and was also supplied the documents relied upon by the detaining authority so the contention of the petitioner that no documents relied upon by the detaining authority have been furnished to him, is without merit. 9. The third ground raised by the petitioner is that the respondent No. 2 has acted as a rubber stamp and has not recorded subjective satisfaction regarding the necessity of issuance of detention order. The grounds of detention have been prepared by the respondent No. 2 giving the details that the petitioner in January, 2018 had developed the contacts with one foreign militant of Lakshar-e-Toiba (LeT) outfit, namely, Abu Maaz, who motivated the petitioner to work with the militant outfit LeT as an Over Ground Worker (OGW). Abu Maaz also introduced the petitioner with other foreign militants, namely, Zaid Bahi and Harris. Thereafter, the petitioner started working as OGW and provided every logistic support to the militants of LeT outfit and provided them food, shelter in his house for several nights and also arranged sim cards for the above said militants. Abu Maaz also introduced the petitioner with other foreign militants, namely, Zaid Bahi and Harris. Thereafter, the petitioner started working as OGW and provided every logistic support to the militants of LeT outfit and provided them food, shelter in his house for several nights and also arranged sim cards for the above said militants. The petitioner has provided every support to the militants of LeT outfit and has provided information about security forces movement to the foreign/local militants banned outfit through SMS. The petitioner as a local executed different assigned tasks for the banned militant outfits like transportation and placement of foreign militants in different houses, carrying arms and ammunition from one place to another for the militants of the LeT outfit. The petitioner has also procured material for the preparation of mines/IEDs in Sopore area. On 21.12.2018, the Police during naka checking, on suspicion, while frisking the petitioner, 01 matrix sheet belonging to LeT outfit, AK-47 magazine and 10 rounds of AK-47 were recovered from the petitioner. To this effect, FIR bearing No. 339/2018 for commission of offences under section 7/25 Arms Act, 13 ULA(P) Act stands registered against the petitioner in the Police Station, Sopore. The detaining authority after perusing the FIR, site plan, arrest memo, disclosure memo and statement under section 161 Cr. P. C, has arrived at a conclusion that the detention of the petitioner is necessary so as to prevent him from indulging in the activities prejudicial to the security of State. The respondent No. 2 in the grounds of detention has taken the note of the fact of grant of bail to the detenue on 22.06.2019. The respondent No. 2 has recorded satisfaction that the detenue may indulge in activities prejudicial to the security of the State, particularly in the northern Kashmir range, the area of Sopore. In the order of detention the respondent No. 2 has recorded its satisfaction with regard to the necessity of detention of the petitioner, as such, this ground of challenge also fails. 10. The fourth ground pertains to the plea that grounds of detention are vague, non-existent and irrelevant. As already notice by this Court, the detention order has been issued by the respondent No. 2 on various grounds duly supported by documentary evidence. The grounds cannot be considered as vague, non-existent or irrelevant. 10. The fourth ground pertains to the plea that grounds of detention are vague, non-existent and irrelevant. As already notice by this Court, the detention order has been issued by the respondent No. 2 on various grounds duly supported by documentary evidence. The grounds cannot be considered as vague, non-existent or irrelevant. Even otherwise, when the detention order has been issued on various grounds and even if one of the grounds is un-sustainable, still the detention order can be sustained as the other grounds. Reliance is placed upon the decision of Apex Court in Gautam Jain v. Union of India, reported in 2017 (3) SCC 133 , the relevant para is reproduced as under:- “18. A glimpse of the nature of issue involved, and the arguments which are advanced by both the parties thereupon, makes it crystal clear that insofar as the legal position is concerned, there is no dispute, nor can there be any dispute in this behalf. Both the parties are at ad idem that if the detention order is based on more than one grounds, independent of each other, then the detention order will still survive even if one of the grounds found is non-existing or legally unsustainable. (see Vashisht Narain Karwaria [Vashisht Narain Karwaria v. State of U.P., (1990) 2 SCC 629 : 1990 SCC (Cri) 372] ). On the other hand, if the detention order is founded on one composite ground, though containing various species or sub-heads, the detention order would be vitiated if such ground is found fault with (see A. Sowkath Ali [A. Sowkath Ali v. Union of India, (2000) 7 SCC 148 : 2000 SCC (Cri) 1304] ). Thus, in the instant case, outcome of the appeal depends upon the question as to whether detention order is based on one ground alone or it is a case of multiple grounds on which the impugned detention order was passed”. 11. The fifth ground raised by the petitioner is that the detention order has not been confirmed by the Government and also that the grounds of detention were not placed before the Advisory Board for its opinion. 11. The fifth ground raised by the petitioner is that the detention order has not been confirmed by the Government and also that the grounds of detention were not placed before the Advisory Board for its opinion. As per the mandate of section 15 of the Act, the Detaining Authority within four weeks from the date of detention, has to place before the Advisory Board the grounds on which the order has been made and the representation, if any, by the person affected by the order. As per section 8(2) of the Act, when the order of detention has been issued under this section, the Detaining Authority has to send the order to the Government along with grounds of detention and other particulars as may be required and no detention order has to remain in force for more than 12 days after making thereof unless it has been approved by the Government. The perusal of the detention record reveals that the detention order has been approved by the Government on 12.07.2019 i.e. within the statutory period. More so, the case of the petitioner was also referred to the Advisory Board and the Advisory Board vide its opinion dated 23.07.2019 has opined that there are sufficient grounds for detention of the petitioner and it has also been observed that the detenue was informed of his right to make representation. Thus, this ground also fails. 12. The last ground is that the allegations leveled against the petitioner are purely criminal in nature and the respondent No. 2 has not demonstrated as to why the ordinary law of the land is not sufficient to deal and deter the detenue to indulge in criminal activities. The perusal of the grounds of the detention reveal that the respondent No. 2 has stated in the grounds of detention in detail the subversive activities, in which the detenue has indulged himself. He has been continuously providing logistic support to the foreign and local militants. As already noticed, the purpose of preventive detention is to prevent a person from indulging him in illegal activities. In Sasti v. State of W.B., reported in (1972) 3 SCC 826 , the Hon’ble Apex Court has held that: “4. He has been continuously providing logistic support to the foreign and local militants. As already noticed, the purpose of preventive detention is to prevent a person from indulging him in illegal activities. In Sasti v. State of W.B., reported in (1972) 3 SCC 826 , the Hon’ble Apex Court has held that: “4. -----------It is argued by Mr Arora that as the act attributed to the petitioner in the grounds of detention constituted an offence under the Penal Code, 1860, the petitioner could only be tried in a Court of law for the offence and no order for his detention on that score could be made. This contention, in our opinion, is devoid of force. It is always open to the detaining authority to pass an order for the detention of a person if the grounds of detention are germane to the object for which a detention order can legally be made. The fact that the particular act of the detenu which provides the reason for the making of the detention order constitutes an offence under the Penal Code, 1860 would not prevent the detaining authority from passing the order for detention instead of proceeding against him in a Court of law. The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention. There would be no legal bar to the making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be relevant and germane to the object for which a detention order can be made under the Act. Even in cases where a person has been actually prosecuted in a Court of law in respect of an incident and has been discharged by the trying Magistrate, a valid order of his detention can be passed against him in connection with that very incident. --------” (Emphasis supplied) 13. The respondent No. 2 has recorded its satisfaction that because of the past activities there is every apprehension that the detenue may indulge in subversive activities. --------” (Emphasis supplied) 13. The respondent No. 2 has recorded its satisfaction that because of the past activities there is every apprehension that the detenue may indulge in subversive activities. The learned counsel for the petitioner has relied upon the decision of Apex Court in V. Shantha v. State of Telangana, (2017) 14 SCC 577 and has placed much reliance upon para 12 of the judgment and the same is reproduced as under: “12. The order of preventive detention passed against the detenu states that his illegal activities were causing danger to poor and small farmers and their safety and financial well-being. Recourse to normal legal procedure would be time-consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” cannot be sufficient justification to invoke the Draconian powers of preventive detention. To classify the detenu as a “goonda” affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex facie extraneous to the Act.” 14. In the above case, the detenue was involved in the business of selling seeds and the complaint was regarding selling spurious seeds and in that context it was held that the ordinary law of the land can take care of the illegal activities of the detenue therein. The business of seeds in that matter was not conducted in a clandestine manner. So the judgment relied upon by the learned counsel for petitioner is not applicable in the facts and circumstances of the case in hand as the petitioner has indulged in subversive activities prejudicial to the security of the State and such type of activities are not conducted openly but in clandestine manner. 15. So the judgment relied upon by the learned counsel for petitioner is not applicable in the facts and circumstances of the case in hand as the petitioner has indulged in subversive activities prejudicial to the security of the State and such type of activities are not conducted openly but in clandestine manner. 15. Thus, this Court is of the considered view that the order of detention impugned has been issued by the detaining authority well within the parameters of law and no fault can be found with it and, as such, the same is upheld. The petition is found to be without merit and is dismissed accordingly.