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2021 DIGILAW 199 (JK)

Manzoor Sheikh v. UT of J&K

2021-04-27

SANJEEV KUMAR

body2021
Judgment : Sanjeev Kumar, J. 1. Impugned in this petition is order of detention bearing No.DMB/PSA/04 of 2020 dated 29th of August, 2020, passed by District Magistrate, Budgam (the detaining authority), whereby the petitioner has been placed under preventive detention with a view to preventing him from acting in any manner prejudicial to the preservation of forest wealth. 2. Before adverting to the grounds of challenge taken by the petitioner in this petition, it is necessary to notice few material facts that have led to the filing of this petition. 3. As per the grounds of detention, claimed to have been served upon the petitioner, the petitioner is a resident of “A” zone forest area and is engaged in timber smuggling by cutting green trees, instigating his associates to adopt the same trade and transporting the illicit material to Payeen belt. There are as many as three different FIRs registered against the petitioner from time to time. FIR No.77/2017 pertains to the damage inflicted to four trees for which the cost recoverable has been worked out to be Rs.1,85,500. FIR No.01/2019 pertains to the damage cause to three standing trees worth Rs.1,53,000/- and the third FIR i.e. FIR No.41/2020 relates to four trees of different species damaged by the petitioner, whereby a loss to the tune of Rs.2,24,000/- has been caused to the Department of Forest. As per the allegations in the grounds of detention, a cost of Rs.5,62,500/- is recoverable from the petitioner for having inflicted damage to eleven green trees of Kail/Fir. 4. It is claimed that the petitioner accomplishes his job clandestinely, mostly during night hours, and adopts routes where from he could give a slip to the law enforcing agencies. He also takes exclusive precautions in avoiding the interference of Forest Authorities/police and always keeps himself and his associates well equipped with arms and lethal weapons. It is, thus, concluded that the petitioner has become so ferocious and at times violent that he has succeeded in destabilizing the whole ecosystem of the Doodganga range. 5. Taking note of the aforesaid activities of the petitioner and his continued involvement in the activities prejudicial to the health of forests, the detaining authority has though it appropriate to place the petitioner in preventive detention so that he could be deterred from pursuing his nefarious activities aimed at destroying green gold. 5. Taking note of the aforesaid activities of the petitioner and his continued involvement in the activities prejudicial to the health of forests, the detaining authority has though it appropriate to place the petitioner in preventive detention so that he could be deterred from pursuing his nefarious activities aimed at destroying green gold. It is in the aforesaid backdrop, the detaining authority has passed the impugned order. 6. The impugned order has been assailed by the petitioner, inter alia, on the following: (I) That the grounds of detention are completely vague and do not give specific particulars of the allegations leveled against him; (II) That the grounds of detention served upon the petitioner is a ditto copy of the communication of Divisional Forest Officer, Pir Panjal Forest Division, Budgam, dated 22nd of June, 2020; (III) That the material was supplied by the DFO concerned to the detaining authority on 22nd of June, 2020 whereas the impugned detention order was passed on 29th of August, 2020, i.e. after a delay of more than two months and, therefore, the impugned order is vitiated in law; (IV) That the procedural safeguards laid down in the J&K Public Safety Act and Article 22(5) of the Constitution of India have not been followed; (V) That the material relied upon in the grounds of detention has not been supplied to the petitioner, as a result whereof he was incapacitated to file an effective representation before the Government; (VI) That the grounds of detention are too remote and stale that there is no proximate and live link between the grounds of detention and the prejudicial activities of the detenue; 7. On being put on notice, the detaining authority has filed a detailed reply affidavit and has countered all the allegations made in the petition. It is submitted that the petitioner was placed under preventive detention by the detaining authority only after perusal of the relevant material produced before it by the Divisional Forest Officer, Pir Panjal Forest Division, Budgam, and after carefully examining the same. It was only when the detaining authority derived subjective satisfaction in the matter, that it issued the impugned detention order. It is submitted that the detenue is involved in timber smuggling himself and is also instigating his associates to adopt the same trade and transport illicit material through the routes where it is easy to give slip to the law enforcing agencies. It is submitted that the detenue is involved in timber smuggling himself and is also instigating his associates to adopt the same trade and transport illicit material through the routes where it is easy to give slip to the law enforcing agencies. The detenue has been found involved in three FIRs registered in the year 2017, 2019 and 2020, which clearly shows that the involvement of the petitioner in timber smuggling is continuous. It is stated that the detention order was executed against the petitioner on 11.09.2020 by Executing Officer, ASI, Mushtaq Ahmad. The copy of detention warrant, letter addressed to the detenue, grounds of detention and the material relied upon by the detaining authority was handed over to the petitioner and the warrant of detention and the grounds of detention were read over and explained to him in a language that he fully understood. He was also informed as to his right to make a representation to the detaining authority or to the Government, if he so desired. 8. The respondents have placed on record the Execution Report duly signed by the petitioner as well as the Executing Officer. The impugned order was approved by the Government within the stipulated time and the same was placed before the Advisory Board for its opinion as well. It is only when the Advisory Board after examination of the case found sufficient grounds for detention of the petitioner, the Government confirmed the impugned detention order vide Government order No.Home/PB-V/1763 of 2020 dated 13.11.2020. It is, thus, claimed that all the procedural and substantive safeguards laid down in the J&K Public Safety Act as also Article 22 of the Constitution of India have been completely adhered to and complied with in the instant case and, therefore, the impugned order of detention does not warrant any interference. 9. Heard learned counsel for the parties and perused the record. 10. Undoubtedly, as per the material collected and supplied by the Forest Authorities, the petitioner is a habitual smuggler of timber and has over the period of time engaged in transporting, concealing and keeping smuggled timber in his possession. The communication of Divisional Forest Officer, Pir Panjal Forest Division, Budgam, submitted to the detaining authority is quite elaborate and contains, in detail, the activities of the petitioner aimed at inflicting damage to the forests. The communication of Divisional Forest Officer, Pir Panjal Forest Division, Budgam, submitted to the detaining authority is quite elaborate and contains, in detail, the activities of the petitioner aimed at inflicting damage to the forests. As per three FIRs registered against him from time to time, the petitioner is alleged to have stolen 775 cft. volume of Kail/Fir wood from the forests and caused damage to the tune of Rs.5,62,500. The manner in which he has organized his gang and conducts his activities leaves one without any doubt that the petitioner is a habitual smuggler and three criminal cases registered against him have not proved any deterrence to him. 11. In view of the aforesaid activities of the petitioner brought to the notice of the detaining authority by the Forest Authorities, there was perhaps no option with the detaining authority but to invoke the provisions of Section 8 of the J&K Public Safety Act. 12. It is not true that there is no application of mind by the detaining authority and that the detaining authority has only reproduced the dossier supplied by the DFO concerned. From the careful reading of the grounds of detention, it clearly transpires that though the only material before the detaining authority to derive its satisfaction was the one placed before it by the Forest Authorities, yet the detaining authority applied its mind and came to the conclusion that the petitioner was an incorrigible offender not deterred by the registration of three FIRs against him. It was, thus, thought imperative by the detaining authority to invoke the provisions of Section 8 of the J&K Public Safety Act and place the petitioner in preventive detention so as to prevent him from continuing with his activities of timber smuggling to the detriment of the green forest. I, therefore, find nothing wrong in the manner in which the detaining authority has derived its satisfaction. 13. The order impugned, as is apparent from the record produced before me by the respondents, was approved within time by the Government and the same was also approved by the Advisory Board. I, therefore, find nothing wrong in the manner in which the detaining authority has derived its satisfaction. 13. The order impugned, as is apparent from the record produced before me by the respondents, was approved within time by the Government and the same was also approved by the Advisory Board. The Advisory Board, headed by a retired Judge of this Court along with two members, examined the whole material placed before it and rendered its opinion that there was sufficient cause for detention of the detenue under Section 8 of the Act with a view to preventing him from acting in any manner prejudicial to the forest wealth. It is pursuant to the opinion rendered by the Advisory Board that the impugned order was confirmed by the government and the petitioner was ordered to be detained for a maximum period of one year. 14. The allegation of the petitioner that he was not served with the relevant material relied upon in the grounds of detention is also factually incorrect. The Execution Report prepared by the Executing Officer, namely, Mushtaq Ahmad ASI, and signed by the petitioner clearly indicates that the contents of the detention warrant along with grounds of detention were read over and explained to the detenue in Kashmiri language which he fully understood. He was also provided with a copy of detention order, grounds of detention, copy of dossier and other related documents (13 leaves). He was also informed that he can make a representation to the Government as well as the detaining authority against his detention if he so desired. In view of acknowledgement signed by the petitioner to this effect, it cannot be said that the petitioner was deprived of the relevant material relied upon in the grounds of detention and was, thus, incapacitated to make an effective representation. As a matter of fact, the detenue has chosen not to make any representation, either to the detaining authority or to the Government. The Advisory Board, in its proceedings, had taken note of this fact. 15. This brings me to the last argument of the learned counsel for the petitioner that the delay of two months in passing the detention order vitiates the order of detention. 16. The Advisory Board, in its proceedings, had taken note of this fact. 15. This brings me to the last argument of the learned counsel for the petitioner that the delay of two months in passing the detention order vitiates the order of detention. 16. It is true that preventive detention is resorted to only when emergency of the situation warrants such action, otherwise the law of the land is sufficient to deal with those indulging in criminal activities including criminal act of causing damage to the forests by indulging in timber smuggling. It is true that the DFO concerned provided a dossier of activities of the petitioner to the detaining authority on 20th of June, 2020, whereas the order of detention was passed by the detaining authority in August, 2020, i.e. almost after two months. It is not a case of delayed execution of the order but it is a case where the detaining authority did not immediately respond to the request of the Forest Authorities and passed the order without applying its independent mind. It took its own time to examine the material before it and to derive satisfaction with regard to the necessity of placing the petitioner under preventive detention. The subjective satisfaction so arrived at by the detaining authority is not amenable to judicial review, as is held by the Supreme Court in the case of Hardhan Saha vs. State of W.B, (1975) 3 SCC 198 . 17. In view of the foregoing, I find no merit in this petition and the same is, accordingly, dismissed.