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2022 DIGILAW 442 (JK)

Shabir Ahmad Najar v. Union Territory of J&K

2022-08-31

MOKSHA KHAJURIA KAZMI

body2022
JUDGMENT : MOKSHA KHAJURIA KAZMI, J. 1. Impugned is the Order No. 03/DMP/PSA/2022 dated 03.03.2022, having been passed by District Magistrate, Pulwama (for brevity “Detaining Authority”) thereby placing under preventive detention one Shabir Ahmad Najar son of Ghulam Ahmad Najar resident of Wuyan Khrew Tehsil Pampore, District Pulwama, (for short “detenue”) with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and lodging him in Central Jail, Kotbhalwal, Jammu, on the grounds tailored in petition on hand. 2. The case set up in petition is that detenue was arrested on 07.08.2021, by Police Station, Khrew and was falsely booked in case FIR No. 52/2021 under Section 18, 20 and 38 ULAP Act stands registered in Police Station Khrew. During the continuation of arrest of the detenue, he was taken into preventive detention vide impugned detention order. It is urged that the statutory procedural safeguards as provided under Article 22(5) of the Constitution of India has not been followed by the Detaining Authority; the detenue has been falsely implicated in case FIR No. 52/2021 under Section 18, 20 and 38 ULAP Act and the relevant material with regard to the aforesaid FIR was never furnished to the detenue, resulting in depriving him from filing the representation before the Government or before the Detaining Authority; that the detention order was passed on the basis of the dossier/material provided by Sr. Superintendent of Police, Pulwama to the Detaining Authority; that the Detaining Authority has acted on the dictation of law enforcement agencies without independent application of mind. 3. Counter affidavit has been filed by respondent no. 2, vehemently resisting the petition. 4. I have heard learned counsel for parties and considered the matter. I have gone through the detention record made available by counsel for respondents. 5. The essential concept of preventive detention is not to punish a person for something he has done, but to prevent him from doing it. The basis of detention is satisfaction of the executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. 5. The essential concept of preventive detention is not to punish a person for something he has done, but to prevent him from doing it. The basis of detention is satisfaction of the executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha vs. State of West Bengal, (1975) 3 SCC 198 , points out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent. 6. Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee safeguard to detenu to be informed, as soon as may be, of grounds on which order of detention is made, which led to subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenu is to be furnished with sufficient particulars enabling him to make a representation, which on being considered, may obtain relief to him. 7. Detention record, produced by counsel for respondents, makes it known that detention order was made on proper application of mind, to the facts of the case and detenue was delivered at the time of execution of detention order, the material and grounds of detention and also informed that he has a right to represent against his preventive detention. Perusal of “Execution Report” of detention order depicts that in compliance to District Magistrate, Pulwama's order of detention, SI, Bashir Ahmad 144/GRPK EXK No. 832308 of DPL Awantipora executed the warrant of detention and the execution report further reveals that contents of detention warrant and grounds of detention had been read over and explained to detenue in Kashmiri language, which he fully understood and it was in lieu thereof that he scribed his signature unto the Execution Report. It also divulges that detenue was informed that he can make representation to government as well as Detaining Authority. In that view of matter, the contention of the petitioner that detenue has not been informed to whom he has to file representation does not hold good. 8. It may not be out of place to mention here that grounds of detention are definite, proximate and free from any ambiguity. Detenue has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made it to exercise its powers under Section 8 of J&K Public Safety Act, 1978, and record subjective satisfaction that detenue was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of public order. 9. It is important to mention here that the Supreme Court, in numerous decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person. 10. The detention record produced by respondents would reveal that detenue developed secessionist and separatist idology from the teen age and being sympathizer of the elements who followed the same ideology and in the year 2017, the detenue came in contact of a foreign terrorist who motivated the detenue as OGW for him. After a passage of time the detenue joined the banned terrorist organization, Hizb-ul-Mujahedeen (HM). The detenue actively joined the terrorist ranks and has been categorized as “C” category terrorist of HM outfit vide ZPHQ Letter No. ZPHQ/PS/Cat/Part-VI/21/21/16732-35 dated 22.08.2021 and on 08.08.2021, the detenue was arrested with the assistance of security forces from Khrew in a truck bearing Registration No. JK-13-2357 from which arms and ammunition/ explosive material was recovered. The detenue is stated to have managed his release on bail. Grounds of detention also reveal that even after his release, detenue did not shun undesirable activities and instead continued such unlawful activities which are prejudicial to the maintenance of public order and as per the inputs from reliable sources, detenue is likely to formulate a strategy to vitiate the atmosphere. 11. Grounds of detention also reveal that even after his release, detenue did not shun undesirable activities and instead continued such unlawful activities which are prejudicial to the maintenance of public order and as per the inputs from reliable sources, detenue is likely to formulate a strategy to vitiate the atmosphere. 11. In such circumstances, suffice is to say that there had been material before Detaining Authority to come to conclusion and hence, it cannot be said that subjective satisfaction of Detaining Authority was wrongly arrived at or grounds of detention are self-contradictory or vague. The role of detenue has been specifically described. 12. Here detenue has been caught in the act, which are prejudicial to the maintenance of peace and public order. He has been, what is discernible from grounds of detention, is a deeply rooted member of terrorist Organization HM, a potential threat to the sovereignty and integrity of the nation. Grounds of detention also portray that despite facing criminal investigation, detenue indulged in unlawful activities repeatedly. If that be so, it is not possible to say that order of detention was passed by the Detaining Authority with a view to supplant or substitute the criminal law. The order of detention was plainly passed with a view to prevent the detenue from continuing the activities which are prejudicial to the maintenance of public order. 13. It would be apt to refer to the observations made by the Constitution Bench of the Supreme Court in the case of State of Bombay vs. Atma Ram Shridhar Vaidya, AIR 1951 SC 157 . The paragraph 5 of the judgment lays law on the point, which is profitable to be reproduced infra: “5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 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 the commission of an offence or preventing the detained person from achieving a certain end. The powers of preventive detention under this Act of 1950 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 the commission of an offence or preventing the 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 the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or 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 (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community........it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, 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 three 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 wording of the section thus clearly shows that it is the satisfaction of the Central Government or 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. 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 Central Government or 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 Central Government or 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 Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the 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 the subjective decision of the Government.” 14. In the light of the aforesaid position of law settled by the Six-Judge Constitution Bench, way back in the year 1951, the scope of looking into the manner in which the subjective satisfaction is arrived at by the Detaining Authority, is limited. This Court, while examining the material, which is made basis of subjective satisfaction of the Detaining Authority, cannot act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before Detaining Authority another view was possible. This Court, while examining the material, which is made basis of subjective satisfaction of the Detaining Authority, cannot act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before Detaining Authority another view was possible. The reliance placed by learned counsel for petitioner on Abdul Latief Abdul Waheed vs. B.K. Jha and Another, (1987) 2 SCC 22 and A.K. Roy vs. Union of India, (1982) AIR SC 710, are extremely distinguishable from the facts of the present case and do not bolster the case set up by petitioner. 15. In the backdrop of foregoing discussion, the petition is without any merit, therefore, dismissed. 16. Detention record be returned to learned counsel for respondents.