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2022 DIGILAW 19 (JK)

Javaid Ahmad Najar v. Union Territory of J&K

2022-02-03

SANJEEV KUMAR

body2022
JUDGMENT : SANJEEV KUMAR, J. 1. Impugned in this petition is an order of detention bearing No. DMS/PSA/26/2021 dated 24.06.2021 passed by the District Magistrate, Srinagar [“the Detaining Authority”] whereby the petitioner has been put under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of security of the State. 2. As per the grounds of detention, claimed to have been served by the respondents upon the petitioner, the Detaining Authority received a dossier of the activities of the from Senior Superintendent of Police, Srinagar vide his No. LGL/Det-3216/20/3041-44 dated 05.03.2021 with a request to issue a warrant for detention of the petitioner under the provision of Jammu and Kashmir Public Safety Act, 1978 [“the Act”]. As per the dossier provided by the Senior Superintendent of Police, the petitioner is shown to have been involved in as many as eight FIRs registered in the year 1996, 1999, 2006, 2007 and 2019 respectively. Five of the referred FIRs have been challaned in the competent Court of law whereas three FIRs are shown to be under investigation. It is alleged that the petitioner after having been booked and arrested in several FIRs did not mend his ways and after release was found continuously hatching criminal conspiracy aimed at threatening the security of the State. It is claimed in the grounds of detention that the ideology which the petitioner follows and preaches is for waging war against the Government of Jammu and Kashmir and the Central Government with a view to achieve goal of seceding the territory of Jammu and Kashmir from Union of India. It is on the basis of cumulative effect of the activities of the petitioner, the Detaining Authority seems to have arrived at subjective satisfaction that remaining of the petitioner at large would be highly prejudicial to the security of the State. It is on the basis of these grounds, the Detaining Authority has put the petitioner under preventive detention by invoking the provisions of Section 8 of the Act. 3. The respondents despite having been given several opportunities have failed to file reply affidavit and, therefore, the grounds of challenge urged by the petitioner for quashing the detention order were examined in the light of detention record produced by the learned counsel appearing for the respondents. 4. 3. The respondents despite having been given several opportunities have failed to file reply affidavit and, therefore, the grounds of challenge urged by the petitioner for quashing the detention order were examined in the light of detention record produced by the learned counsel appearing for the respondents. 4. From a perusal of the record it emerges that the impugned order of detention has been passed by the Detaining Authority relying completely on the dossier provided by the Senior Superintendent of Police. As per the dossier, the petitioner has been shown to be involved in eight different FIRs registered over a period of time. The earliest FIR against the petitioner which is pending trial before the Chief Judicial Magistrate, Srinagar was registered in the year 1996 and the latest one, which is under investigation, was registered in the Police Station Soura in the year 2019. Out of eight FIRs, five are pending trial before different criminal Courts whereas three FIRs are still under investigation. In FIR Nos. 70/2007 and 73/2019 registered in Police Stations, Safakadal and Soura respectively, the petitioner is also involved in the commission of offence under the Unlawful Activities (Prevention) Act. From the record, I could also find that at the time of execution of warrant of detention the petitioner was provided the order of detention, grounds of detentions and copies of the FIRs relied upon in the grounds of detention. It also comes out from the record that the grounds of detention were read over and explained to the petitioner in the language he fully understood. He was also apprised of his right to make representation to the Government against his detention, if he so desires. Earlier, the Detaining Authority also gave him an option to make representation to it till the impugned order of detention was approved by the Government. It is, thus, clearly borne out from the record that not only the material relied upon in the grounds of detention was in its entirety supplied to the petitioner but he was also given an opportunity to make representation against his detention to the Detaining Authority as well as to the Government. It is, thus, clearly borne out from the record that not only the material relied upon in the grounds of detention was in its entirety supplied to the petitioner but he was also given an opportunity to make representation against his detention to the Detaining Authority as well as to the Government. The case was also placed before the Advisory Board within the stipulated period and the Advisory Board, after considering the material placed before it, was of the opinion that there was sufficient cause for detention of the petitioner under Section 8 of the Act with a view to prevent him from acting in any manner prejudicial to the security of the State. After the approval granted by the Advisory Board, the Government vide Government Order No. Home/PB-V/601 of 2021 dated 05.08.2021 confirmed the impugned order of detention and directed the detention of the petitioner for a period of six months in the first instance. 5. The detenue in the instant case was put under preventive detention on 26.06.2021 and therefore, the initial period of detention of six months has expired on 25.12.2021. Unless, in the meanwhile, the government has extended further detention of the petitioner, the petitioner’s detention has outlived its life. 6. That aside, I do not find any merit in the petition. In view of the allegation against the petitioner, as indicated in the grounds of detention and his persistent involvement in subversive activities aimed at jeopardizing the security of the State, I am of the considered view that no fault can be found with the satisfaction arrived at by the Detaining Authority, for, the petitioner deserves to be put under preventive detention with a view to prevent him from indulging in such activities. The procedural formalities, as are envisaged under the Jammu and Kashmir Public Safety Act have been scrupulously followed. 7. The grievance of the petitioner that he was not provided with sufficient material to enable him to make representation to the Government is belied by the record. The petitioner has been served with all the relevant material including copies of the FIRs relied upon by the Detaining Authority to place him under preventive detention. The petitioner has chosen not to make any representation and, therefore, cannot be heard to say that because of lack of requisite material he has been deprived of making the representation to the Government. The petitioner has chosen not to make any representation and, therefore, cannot be heard to say that because of lack of requisite material he has been deprived of making the representation to the Government. No such grievance was made by him before the Advisory Board as well. 8. Be that as it may, it is trite law that the subjective satisfaction, which a Detaining Authority is required to arrived at on the basis of the material before it is not subject matter of judicial review. The Detaining Authority is the competent authority to view the activities of a detenue and take over all view of the matter as to whether the activities, detenue is persistently indulging in make out a case of putting such detenue under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State. 9. The contention of the learned counsel for the petitioner that delay of three months in passing the order of detention after the Detaining Authority was supplied with the dossier by the police is fatal is, in my opinion, not correct. It is true that the dossier detailing the prejudicial activities of the petitioner was sent to the Detaining Authority by the Senior Superintendent of Police concerned on 5th March, 2021, whereas order of detention was passed by the Detaining Authority on 24th June, 2021 and therefore, there is delay of more than three months. 10. Ordinarily, view on the dossier submitted by the police with regard to the activities of the detenue is required to be taken immediately, as the object of the preventive detention is to prevent the detenue from including in activities prejudicial to the public order or security of the State, as the case may be but in a scenario where the disruptive activities are on the rise and the District Magistrate is flooded with the requests from the police to issue detention orders in the light of activities of certain individuals, it is not unreasonable, if Detaining Authority takes some time and issues detention order after proper application of mind. 11. In these circumstances, I am not in agreement with the learned counsel for the petitioner that three months’ delay in passing the detention order by the Detaining Authority after it was provided with the requisite material by the police vitiates the detention. 12. 11. In these circumstances, I am not in agreement with the learned counsel for the petitioner that three months’ delay in passing the detention order by the Detaining Authority after it was provided with the requisite material by the police vitiates the detention. 12. Viewed from any angle, I do not find the detention of the petitioner vitiated on any procedural or substantive ground. As already taken note of, the Government has confirmed the detention of the petitioner initially for a period of six months, which is perfectly legal and falls within the four corners of law. However, it is provided that in case the government has not extended the detention of the petitioner beyond 25th December, 2021, the impugned detention order would be deemed to have outlived its life and the petitioner would be entitled to release from preventive detention forthwith. Ordered accordingly. Detention record be returned to the learned counsel for the respondents.