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2022 DIGILAW 83 (JK)

Gula Bhat v. UT of J&K

2022-03-02

JAVED IQBAL WANI

body2022
JUDGMENT : Javed Iqbal Wani, J. Through the medium of instant, petitioner has challenged the veracity and legality of the detention order No.82/DMS/PSA/2021 dated 08.05.2021 (for brevity “the impugned order), passed by District Magistrate, Shopian (respondent No.2), in terms whereof, he has been taken into preventive custody with a view to prevent him from acting in any manner prejudicial to the preservation of the forest wealth of District Shopian/Pulwama and has been directed to be lodged in District Jail, Kathua. The said order has been passed by respondent No.2 in exercise of his powers under Section 8(1)(a-I) of the Jammu & Kashmir Public Safety Act, 1978. 2. The impugned order has been, inter alia, 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, inasmuch as the detenue was not supplied the translated version of the material which formed the basis of the grounds of detention; (ii) That the 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 and that the detaining authority has not prepared the grounds of detention itself and has relied on the police dossier; 3. Respondents have resisted the petition by filing a reply thereto. In their counter affidavit it is being contended that the respondents have followed all the constitutional and statutory safeguards envisaged under law while passing the impugned order of detention. It is being averred that the petitioner is a habitual nocturnal timber smuggler and along with his associates has ruined the forest wealth of the district/state for last many years. It is being further contended that these activities of the detenue are causing damage not only to the state exchequer but also adversely affecting the environment and damaging the ecological balance of the area and in order to restrain the detenue from indulging in such activities, he was detained under the provisions of Public Safety Act. To support their contentions, the respondents have produced the detention record. 4. I have heard learned counsel for the parties and perused the record. 5. To support their contentions, the respondents have produced the detention record. 4. I have heard learned counsel for the parties and perused the record. 5. 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 is not a literate persons and cannot understand English language but the grounds of detention and other material was not served to detenu in Urdu or Kashmiri 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. 6. Perusal of the detenue record transpires 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 detenue, 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 detenue has not been provided grounds of detention, copies of FIRs etc. As is also gatherable from the 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 Kashmiri. 7. 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 have not been formulated by detaining authority itself. 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. 8. A perusal of the record produced by learned counsel for respondents reveals that that the detention order was made on proper application of mind. 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. 8. A perusal of the record produced by learned counsel for respondents reveals that that the detention order was made on proper application of mind. 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. 9. Perusal of record also 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. 10. 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 detenue 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. 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. 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. 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. 11. 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. 11. 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. 12. 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. 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. 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. 13. Taking conspectus of the aforesaid discussion, I do not find any merit in this petition. The same is, accordingly, dismissed. 14. The detention record be returned back to the learned counsel for the respondents.