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2021 DIGILAW 698 (JK)

Altaf Paswal v. Union Territory of J&K

2021-12-29

VINOD CHATTERJI KOUL

body2021
JUDGMENT : Vinod Chatterji Koul, J.-The order no.80/DMS/PSA/2021 dated 08.05.2021, passed by District Magistrate, Shopian (for brevity “detaining authority”) placing one, Altaf Paswal S/o Mohd Hussain Paswal R/o Nasserpora Mukami Dunaroo District Shopian (for short “detenu”) under preventive detention so as to prevent him from acting in any manner prejudicial to the preservation of forest wealth, has been precisely challenged on the following grounds: i) that detenu was not provided the grounds of detention including copies of the FIRs, copies of final reports produced in the courts and other relevant material, as such detenu could not make an effective representation before the authorities; ii) that detaining authority did not apprise detenu of his right to make a representation against his detention order neither he was told before whom the representation was to be made and the material was not supplied in Gojri or Urdu language to detenu, as such, no effective representation could be made against the detention; iii) That detaining authority has acted on the Dossier supplied by Forest Authorities and copy of Dossier supplied to detaining authority by Divisional Forest Officer, Shopian, was not provided to the detenu, as such the detenu could not make effective representation against his detention; iv) That allegations/grounds of detention are vague and mere assertions of detaining authority and no prudent common man can make effective representation on the basis of such ambiguous allegations. The detaining authority has not applied his mind but acted as post office and slapped the detention upon the detenu; v) that there is no nexus between the alleged acts done and slapping of the detention order; vi) that detention order was not executed as per law and detention order reportedly was not approved, confirmed within the stipulated time period which renders the detention Illegal vii) that illegal, unjustified detention order is clearly misuse of authority by detaining authority which has been vested upon him by law and no due care diligence has been exercised by detaining authority before passing detention order; viii) that detenu has small six children and ailing wife and nobody to look after his family as such his detention amounts to punishing his minor children and his wife. 2. Respondents have filed Counter Affidavit, in which it is submitted by them that detenu is involved in timber smuggling by cutting green trees, instigating his associates to adopt the same trade and transporting the illicit material. 2. Respondents have filed Counter Affidavit, in which it is submitted by them that detenu is involved in timber smuggling by cutting green trees, instigating his associates to adopt the same trade and transporting the illicit material. The detaining authority has, in its affidavit, justified the grounds of detention as well as the impugned detention order while denying the allegation of non-supply of relevant material to the detenu. To substantiate their case, the respondents have produced the detention record. 3. I have heard learned counsel for parties and considered the matter. 4. The first argument put forth by learned counsel for petitioner is that impugned order of detention is unconstitutional, illegal and bad in law inasmuch as detaining authority has not followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution of India. It is also stated by learned counsel for petitioner that detenu has read up to primary level and can understand Gojri and Urdu language only but the grounds of detention and other material was not served to detenu in Urdu or Gojri language, as such, detenu could not make effective representation against detention order and that detenu was not communicated grounds of detention, dossier, FIRs, statement of witnesses, material collected during investigation, and the material considered in framing grounds of detention In view of above submission, I have gone through the detention record produced by learned counsel for respondents. Perusal thereof reveals that the material relied upon by detaining authority has been furnished to detenu at the time of execution of the detention. It is evident from detention record that detenu, at the time of execution of detention order, has been handed over all what has been referred to in grounds of detention by detaining authority, so as to enable him to make an effective representation against his detention. Thus, there is no substance in the submission of learned counsel for petitioner, as is also stated in the petition, that detenu has not been provided grounds of detention, copies of FIRs etc. more particularly when petitioner on his own showing has annexed with his petition copies of impugned detention order dated 08.05.2021, and grounds of detention as Annexure I. As is also gatherable from detention record, all that was required including the material relied upon by detaining authority has been provided to detenu. more particularly when petitioner on his own showing has annexed with his petition copies of impugned detention order dated 08.05.2021, and grounds of detention as Annexure I. As is also gatherable from detention record, all that was required including the material relied upon by detaining authority has been provided to detenu. Grounds of detention were explained and read over to detenu in languages he understood fully, i.e., Urdu and Gojri. 5. The second submission of learned counsel for petitioner is that detaining authority has not assigned any compelling reason for passing order of detention and that detaining authority has not specified the authority before whom the representation has to be made nor has detaining authority informed detenu to make representation to him before the order could be approved/confirmed by the Government. It is stated that detenu has never indulged in any illegal or antinational activity but police and forest officers of the area wanted detenu to act as their informer which he refused to do and on the basis is mala fides some fictitious FIRs were lodged against him in police station Kellar Shopian and ultimately detaining authority was influenced by police and forest authorities to book detenu for stealing timber from the jungles, which is not a fact. The above submission is misconceived, for, perusal of grounds of detention clearly reveals compelling and cogent reasons given by detaining authority to pass order of detention. In this regard it would be profitable to reproduce relevant portion of grounds of detention hereunder: “Whereas, it has been reported to me be Divisional Forest vide his No: DFO/SPN/113-16/Dossier Dated 29-04-2021 that you are residing in A zone forest area and are illegally dealing in timber smuggling trade both by cutting green trees, instigating your associates to adopt the same path and transport the illicit timber stocks to payeen areas for its consumption; Whereas, you have turned nocturnal in habit and have ruined the forest with the help of your associates, clandestinely, which you continues to do still with your conspicuous involvement in a way that it becomes difficult to locate such clumps in the searches. In some of the events carried by you illegally, you have been found, felling of green trees from the forests converting these trees by using axes and sawing, fashioning these to phadas and transporting this illegal material to payeen belt on horses/ ponies either reared by you or procured on hire basis; Whereas, you have been found involved in tree felling, concealing illegal timber in a tactful way. You have promoted its illegal sale and trade which is evident from the cases registered against you under the provisions of 26 Indian forest Act 379/RPC several times as mentioned here under by registering cases against you in police and forest books; Xxxxxxxx Whereas, you accomplish this whole transaction clandestinely mostly during night hours and are adopting the routes wherefrom you succeed in giving slip to the law enforcing agencies. Whereas, you are taking extensive precautions in avoiding the interference of forest authorities/ police and keep yourself and your associates well equipped with Arms and Lethal weapons such as life taking pointed knives to stab a person, cycle chains and sharp edged big axes the intention of assaulting and obstructing the law enforcing agencies in apprehending you or seizing the smuggled timber; Whereas, your active involvement event wise are evincive enough to the extent that you are unabatedly involved in timber smuggling trade since last 3 years, which are beyond any doubt. Your involvement is detected from damage case No’s: 25 of 2017-18, 06 of 2018-19, 03 of 2019-20 and finally FIR No’s: 06 of 2018 and 32 of 2018 of Police Station Keller, which stands registered against you and your associate when you and your associates were smuggling the illicit timber from compartments of Thairna Block. The cases registered against you makes it evident enough that you are mostly inflicting damage in Thairna Block of Romshi Range and even continuous lodging of FIR’s in the past 3 years against you and your organized gang, normal law has not broken your activities neither restricted you from ruining the ecosystem; Whereas, the Divisional Forest Officer, Shopian further reported that you mostly smuggles the illicit timber in gangs and being a gang leader, you mostly attacks the forest officials with lathies, stones and other lethal weapons, whenever intercepted while smuggling the illicit timber during night hours with the help of you gang. Whereas, your proposed booking is the result of your continuous unlawful activities and deserves stern punishment for the sins committed by you against the society and human existence. Whereas, you have become so ferocious and destabilizes the ecosystem by devouring green trees of Ronishi Range, which will prove dangerous to our future generations as well. To do justice 1(3 nature and future generation, you needs to be detained under Public Safety Act (PSA). Whereas, you have undoubtedly proved an enemy of ecological stability. Being involved in economic offence as well, you have beyond double caused extensive damage to the forest wealthy and an irreparable loss to the Nation and world as a whole. The routine law of the land has not proved deterrent enough to hobble your in-human activities and you have turned as a professional, habitual and notorious timber smuggler and by merciless felling of green trees, its possession, carriage and transportation through horses, you have proved an abettor, terror and killer of environment and need to dealt under Public Safety Act. From the above it is quite obvious that you are indulging in illegal felling concealing and transporting of timber illegally from the forests of District Shopian/Pulwama and are also keeping yourself engaged in smuggling of timber and your remaining at large is highly prejudicial to the preservation of the Forest wealth of District Shopian/Pulwama. You being a habitual, professional, and notorious timber smuggler of the area need to be dealt under the provisions of J&K, PSA, in the interest of Forest Protection. Thus, in order to curb your activities your detention under the preventive law has become imperative. It is, therefore, prudent and legally desirable to detain you under Clause a-1, Sub. Section 1 of Section 8 of J&K Public Safety Act, 1978 so that you are restrained from further indulging in damaging the Forest wealth/ smuggling of timber.” It is apparent from grounds of detention, as reproduced above, that detenu is illegally dealing in timber smuggling trade both by cutting green trees, instigating his associates to adopt the same path and transport the illicit stocks to payeen areas for its consumption. Detenu is said to have turned nocturnal in habit and has ruined the forest with the help of his associates and that he continues to do so still with his conspicuous involvement in a way that it becomes difficult to locate such dumps in the searches. It is also mentioned in grounds of detention that in some of the events, carried by detenu illegally, he has been found felling of green trees from the forests, converting these trees by using axes and sawing, fashioning these to phadas and transporting the illegal material to payeen belt on horses/ponies either reared by detenu or procured on hire basis. Detenu is stated to have promoted illegal sale and trade of timber as is gatherable from cases, FIR nos.06/2018 and 32/2018 registered in police station Keller, against him under the provisions of Indian Forest Act 379/RPC. Detenu is said to be involved in illegal timber smuggling for last three years and his involvement has been detected from damage case Nos. 25 of 2017-18, 06 of 2018-19, 03 of 2019-20 and aforementioned FIRs. It is also contained in grounds of detention that detenu is indulging in felling, concealing and transporting of timber illegally from the forests of District Shopian/Pulwama and is also keeping himself engaged in smuggling of timber and that his remaining at large is highly prejudicial to the preservation of the forest wealth of District Shopian/ Pulwama, and in order to curb his activities, his detention has become imperative. The detenu has been very well informed to make representation to the Government as well as detaining authority. In that view of matter, sufficient grounds have been given by detaining authority to place detenu under preventive detention. 6. Another submission of counsel for petitioner is that subjective satisfaction has not been derived by detaining authority which is sine quo non for passing the order of detention and that grounds of detention are formulated by concerned sponsoring agency as the dossier submitted by Divisional Forest Officer, Shopian, is the ditto copy of grounds of detention. Counsel for petitioner has also stated that impugned order of detention has not been approved by the Government and that order of detention would remain in operation only for 12 days. I have examined detention record, produced by learned counsel for respondents. Counsel for petitioner has also stated that impugned order of detention has not been approved by the Government and that order of detention would remain in operation only for 12 days. I have examined detention record, produced by learned counsel for respondents. It is evident from the detention record that the detention order was made on proper application of mind, to the facts of the case and detenu was delivered at the time of execution of the detention order, the material and grounds of detention and was also informed that he had a right to represent against his preventive detention both before detaining authority as also the Government. The detaining authority has narrated the facts and figures that made the authority to exercise its powers under Section 8 of the Act of 1978, and record subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the preservation of forest wealth. 7. Perusal of record reveals that detention order has been approved by the Government within time. The detenu has also been informed to make representation before the Government as well as detaining authority. In examining the question whether the ordinary laws of the land would have sufficed, and whether recourse to preventive detention was unnecessary, it must be borne in mind that the compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens, would lose their meaning, provide the justification for the laws of preventive detention. These Laws posit that an individual’s conduct, prejudicial to maintenance of public order, security of State, preservation of forest wealth, provides grounds for satisfaction for a reasonable assessment of possible future manifestations of similar propensities on the part of the offender. The object of the law of preventive detention is not punitive, but is only preventive. In preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability. 8. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done, but to prevent him from doing it. In preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability. 8. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done, but to prevent him from doing it. Its basis is the satisfaction of the Executive of a reasonable probability of detenu acting in a manner similar to his past acts, and preventing him by detention from so doing. Preventive detention, an anticipatory measure, is resorted to when the executive is convinced that such detention is necessary to prevent a person detained from acting in a manner prejudicial to certain objects which are specified by the law. In preventive detention no offence is proved, and justification of such detention is suspicion or reasonable probability. The order of detention is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances. The power of preventive detention is exercised in reasonable anticipation. It may or may not relate to an offence. It does not overlap with the prosecution even if it relies on certain facts for which prosecution may be, or may have been, launched. An order of preventive detention may be made before or during prosecution. It 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. Reference to Sophia Ghulam Mohd v. State of Maharashtra, AIR 1999 SC 3051 ; Union of India v. Ranu Bhandari, 2008 Cri.LJ 4567; Rekha v. State of T.N. 2011 (5) SCC 244 ; Amrit Lal v. Union Government, 2001 (1) SCC 341 ; Mehraj-ud-din Rather v. State and others, 2007 (I) SLJ 136; and Abdul Hamid Bhat v. State and others, 2005 (I) SLJ 253, in view of the distinguishable facts and circumstances of the case in hand, will not give any aid or assistance to the case of petitioner. 9. 9. It may be mentioned here that a six Judge Constitution Bench of the Supreme Court way back in the year 1951, in the case of The State of Bombay v. Atma Ram Shridhar Vaidya, AIR 1951 SC 157 , while looking into the scope subjective satisfaction arrived at by the detaining authority has held that the same is extremely limited and that the Court, while examining the material, which is made basis of subjective satisfaction of detaining authority, would not act as a court of appeal and find fault with satisfaction on the ground that on the basis of the material before detaining authority, another view was possible. Such being the scope of enquiry in this field, and the contention of counsel for petitioner, therefore, cannot be accepted. While going through the grounds of detention and dossier, I do not find that grounds of detention are ditto copy of dossier supplied by sponsoring authority. As is evident from the detention record, the material has been supplied to detenu. and all this material was before detaining authority when it arrived at subjective satisfaction that the activities of the detenu are such, which would entail the preventive detention under J&K Public Safety Act, 1978. 10. It is pertinent to mention here that the powers of preventive detention under the Act of 1978 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing commission of an offence or preventing detained person from achieving a certain end. The authority, making the order, therefore, cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of impending commission of a prejudicial act. The Act of 1978, therefore, requires that the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to public order, security of State, or preservation of forest wealth, it is necessary so to do, make an order directing that such person be detained. 11. The Act of 1978, therefore, requires that the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to public order, security of State, or preservation of forest wealth, it is necessary so to do, make an order directing that such person be detained. 11. Section 8 of the Act provides that before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The provisions of the Section 8, thus, clearly provide that it is the satisfaction of the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Government and try to determine if it would have come to the same conclusion as the Government. As has been generally observed, this is a matter for subjective decision of the Government and that cannot be substituted by an objective test in a court of law. It is not for the court to sit in the place of the Government and try to determine if it would have come to the same conclusion as the Government. As has been generally observed, this is a matter for subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for subjective decision of the Government. 12. To wrap up, it is relevant to refer to the observations of the Supreme Court in dealing with the question of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in the case of Prakash Chandra Mohan v. Commissioner, 1986 Cr.L.J. 786. The Supreme Court observed that it must be remembered that observance of written law about the procedural safeguards for protection of individual is normally the high duty of public official but in all circumstances not the highest. The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority. 13. For the reasons discussed above, the instant writ petition is without any merit and is, accordingly, dismissed with connected CM(s).