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2022 DIGILAW 46 (JK)

Javed Ahmad Bhat v. Union Territory of J&K

2022-02-16

TASHI RABSTAN

body2022
JUDGMENT : TASHI RABSTAN, J. 1. Impugned in this petition is Order No. 13/DMP/PSA/21 dated 04.03.2021 issued by the District Magistrate, Pulwama, respondent No. 2 herein, whereby Javaid Ahmad Bhat, petitioner herein (for brevity, detenu), has been placed under preventive detention under the Jammu and Kashmir Public Safety Act so as to prevent him from acting in any manner prejudicial to the security of the State. 2. The case as set up by the petitioner-detenu is that respondent No. 2 while slapping preventive detention of detenu has not adhered to the constitutional safeguards available to him under the Constitution of India as well as the J&K Public Safety Act, 1978. It is contended that the detaining authority has issued the detention order without application of mind, arbitrarily and misusing the power vested with respondent No. 2, thus deprived the petitioner of his fundamental right to life and liberty guaranteed to him under Article 21 of the Constitution of India. Further, it is contended that he had never been involved in any subversive or unlawful activities which would cause prejudice to the security of the State. It is contended that neither the grounds of detention nor any other material considered in framing the grounds of detention were ever supplied to him. The status of FIRs, which have been made basis for issuing the detention order, have not been disclosed. It is contended that he was not informed that he had a right to make a representation against his detention order nor the respondents disclosed to him before which authority of Government he can make the representation. Further, it is contended that the communication received from the Superintendent of Police by respondent No. 2, which was made basis for issuing the detention order, was not supplied to him, so as to enable him to make an effective representation. 3. Respondents in their counter affidavit resisted the contentions of petitioner-detenu averring therein that the aim of preventive detention under the Public Safety Act is to stop the illegal activities of an individual which otherwise cannot be stopped when such an individual creates havoc in the society which leads to public disorder, peace, stability and in certain cases also raises alarm bells regarding the nation’s unity and integrity. It is averred that the petitioner-detenu falls under the category of being a threat to security of the State. It is averred that the petitioner-detenu falls under the category of being a threat to security of the State. It is further averred that each and every norm has been followed while detaining the detenu under the Public Safety Act. Further, it is contended that the grounds of detention, order of detention as well as entire material relied upon by the detaining authority came to be furnished to the detenu well within the statutory period provided under Section 13 of the Act. It is also contended that since the activities of the detenu were highly prejudicial to the security of the State, therefore, to prevent him from acting in such activities, he has been detained strictly in accordance with the provisions of the Public Safety Act. 4. Heard learned counsel appearing for the parties, considered their rival contentions and also perused the record, which has been produced in the shape of attested photocopies. 5. The record so produced reveals that the petitioner-detenu under his signatures received a total of 27 leaves including the copy of detention order, grounds of detention, notice of detention, copy of dossier, copies of FIR, statements of witnesses and other related documents at Central Jail, Kot Bhalwal, Jammu. The petitioner-detenu was also informed that he can make a representation to the Government as well as to the detaining authority against his detention order, if he so desires. Further, in paragraph (vi) of the grounds of challenge in the writ petition, the petitioner has specifically averred that his father had obtained these documents from the respondents; meaning thereby the petitioner has himself admitted regarding receiving of these documents. As regards filing of representation to the Government as well as to the detaining authority against his detention order, in the said paragraph itself the petitioner has also stated that he did not wish to file such a representation averring “no prudent man can make an effective representation against these allegations and can only be defended in a court of law.” As such, I do not find any force in the assertion of petitioner-detenu that he was not informed that he had a right to make a representation against his detention order. From the record so produced, it further reveals that the copy of detention warrant, grounds of detention, notice of detention, copy of dossier etc. From the record so produced, it further reveals that the copy of detention warrant, grounds of detention, notice of detention, copy of dossier etc. were receipted by the petitioner-detenu which were read over and explained to him in Urdu and Kashmiri languages, which detenu understood fully, in token of which the signatures of detenu had also been obtained. The grounds of detention are definite, proximate and free from any ambiguity. The detenu was informed with sufficient clarity what actually weighed with detaining authority while passing the detention order. Detaining authority has narrated facts and figures that made the authority to exercise its powers under section 8 of Jammu and Kashmir Public Safety Act 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 security of the State. 6. Further, as regards the claim of petitioner-detenu that the respondents did not disclose him the status of FIRs registered against him, the record reveals that in the grounds of detention itself the District Magistrate, Kathua had disclosed the status of FIRs registered against the detenu. 7. Further, the District Magistrate has specifically given his views/opinion regarding detaining the detenu under the Public Safety Act. The sponsoring authority has not only supplied the material, viz. dossier, containing gist of the activities of the detenu, but has also supplied the material in the shape of FIRs. All these materials were before the authority when it arrived at subjective satisfaction that activities of the detenu were prejudicial to the security of the State. Further, if in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The same views and principles were reiterated by the Apex Court in Goutam Jain vs. Union of India, AIR 2017 SC 230 . 8. In the present case, the petitioner-detenu is alleged to be a member of a banned terrorist outfit called Jash-e-Mohammad and had been extending assistance to the terrorists operating in the area enabling them to carry out the subversive activities. 8. In the present case, the petitioner-detenu is alleged to be a member of a banned terrorist outfit called Jash-e-Mohammad and had been extending assistance to the terrorists operating in the area enabling them to carry out the subversive activities. It is also alleged that 40 live rounds of AK 47, 02 detonators etc. were recovered from his possession on 27.07.2020 during naka checking at Manchoowa. It seems since the actions taken against the petitioner-detenu under the ordinary law from time to time were not proved to be deterrent, as such the respondents had no other option but to keep him in preventive detention. 9. Although personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution, however, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in the Secretary to Government, Public (Law and Order-F) and Another vs. Nabila and Another, (2015) 12 SCC 127 . 10. The Supreme Court in Debu Mahato vs. State of West Bengal, (1974) 4 SCC 135 , observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case “one act may suffice.” That was a case of wagon-breaking and given the nature of the Act, it was held therein that “one act is sufficient.” The same principle was reiterated in Anil Dely vs. State of West Bengal, (1974) 4 SCC 514 . It was a case of theft of railway signal material. Here too “one act was held to be sufficient.” Similarly, in Israil S.K. vs. District Magistrate of West Dinajpur, (1975) 3 SCC 292 and Dharua Kanu vs. State of West Bengal, (1975) 3 SCC 527 , single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In short, the principle appears to be this: “Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity.” The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activities. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activities. 11. For the reasons discussed above, this petition fails and is, accordingly, dismissed along with connected Crl. Ms. if any. 12. Registry to return the record against proper receipt, which is in the form of photocopies.