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2023 DIGILAW 526 (JK)

Bilal Ahmad Dar v. Union Territory of J&K

2023-09-19

SINDHU SHARMA

body2023
JUDGMENT : 1. In this petition, the detenu Bilal Ahmad Dar, seeks quashing of detention Order No. DMB/PSA/2022/30 dated 27.06.2022. By virtue of the impugned detention order, the District Magistrate, Budgam, in exercise of powers under Section 8 of the J&K Public Safety Act, 1978, had detained the detenu under the provisions of Public Safety Act to prevent him from acting in any manner prejudicial to the security of the State. The detenu has assailed this order of detention through his father-Farooq Ahmad Dar. 2. The detenu, aggrieved of the detention order, has challenged its legality and validity on the grounds that; (i) the allegations mentioned in the grounds of detention have no nexus with the detenu and have been fabricated to fortify his illegal detention; (ii) the allegations made in the grounds of detention are vague, non-existent against which no representation can be made; (iii) the Detaining Authority has not prepared the grounds of detention itself, therefore, there is total non-application of mind while passing the order of the detention; (iv) all the relevant material relied upon by the Detaining Authority has not been provided to the detenu enabling him to make an effective representation; (v) the detenu was not informed of his right to make a representation to the Detaining Authority or to the Government; (vi) the detention order has not been read and explained to him in the language, he understand. 3. Mr. Faheem Shah, learned Government Advocate has filed the counter affidavit and also produced the detention record. It is submitted by him that the detenu was detained vide order dated 27.06.2022 passed by the District Magistrate Budgam in accordance with the provisions of Public Safety Act. The Detaining Authority after considering all the relevant material and deriving its subjective satisfaction had passed the order of detention. The grounds of detention, order of detention and also all the material relied upon by the Detaining Authority has been furnished to the detenu. The Detaining Authority had complied with all the statutory requirement and constitutional guarantees as provided under the said Act. 4. Heard learned counsel for the parties and perused the record also. 5. The Detaining Authority has detained the detenu vide impugned order on the grounds that the detenu has been targeting innocent civilians and recruiting youth in the ranks of terrorist organizations. 4. Heard learned counsel for the parties and perused the record also. 5. The Detaining Authority has detained the detenu vide impugned order on the grounds that the detenu has been targeting innocent civilians and recruiting youth in the ranks of terrorist organizations. Report received from various agencies and blogs on social media platform testifies that terrorist organizations is being controlled by Pakistani intelligence ISI and on their advice and directions they are carrying out terrorist activities like killings offshoot targets which includes street vendors, labourers from outside J&K UT, who are working in orchards, small shops and commercial establishments, Police men who are off duty or are unarmed, so as to create an atmosphere of fear and intimidation in the valley. The activities mentioned above are not only prejudicial to the security of the State but are also aimed to recycle vicious terror atmosphere and create an atmosphere conducive for secessionists and terrorists to destabilize the administrative machinery of the UT and it hell-bent to create conducive atmosphere for terrorists for carrying out activities prejudicial to the maintenance of security of the State 6. The Detaining Authority, after considering the dossier submitted by the SSP concerned and the fact that the activity of the detenu was highly prejudicial to the security of the State, issued the detention order. The detention order approved by the Government within the time. The detenu was also informed of his right to make a representation before the Government as well as the Detaining Authority. 7. Personal liberty is one of the most precious rights guaranteed under the Constitution and a person cannot be deprived of his personal liberty except by procedure established by law. Article 22(5) of the Constitution provides for detention of person without formal charge, trial or sentence from a competent Court under the enactment of preventive detention law. The object of the same is to protect the society from activities which would deprive a large number of people from their life and personal liberty. 8. It is well settled that the purpose of the preventive detention is detaining of a person and not to punish him for something he has done but to prevent him from doing a particular act which is prejudicial either to the security of the State or to the maintenance of the public order. 8. It is well settled that the purpose of the preventive detention is detaining of a person and not to punish him for something he has done but to prevent him from doing a particular act which is prejudicial either to the security of the State or to the maintenance of the public order. In Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198 , Hon’ble the Supreme Court has held that there is no parallel between prosecution in a Court of law and a detention order under the Public Safety 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. The relevant part of the judgment is reproduced as under:- “The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. 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 section 3 of the Act to prevent.” 9. In Khudiram Das v. State of West Bengal and others, reported as (1975) 2 SCR 832 , It was held that:- “………..The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. In Khudiram Das v. State of West Bengal and others, reported as (1975) 2 SCR 832 , It was held that:- “………..The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.…………” 10. Similarly, in Secretary to Government, Public (Law and order) and another vs. Nabila and another, reported as (2015) 12 SCC 127 , it has been held that one act may not be sufficient to form the requisite satisfaction for detaining him. Relevant portion of the judgment is as under : “Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which can only be warranted by legal evidence…” 11. Perusal of the record reveals that the detenu, at the time of his detention as well as at the time of execution of the detention order was provided all the material relied upon by the Detaining Authority i.e., the detention order, copy of ground of detention, dossier and other material, which he acknowledged by signing the receipt. A. S. I. Bashir Ahmed of DPL Budgam has provided all the relevant material to the detenu and read over the same and explained to him in Urdu and Kashmiri language. He also informed the detenu that he can make a representation against his order of detention. 12. Learned counsel for the detenu submits that the detenu had filed representation before the respondent No. 2 but the same has not been considered till date. A copy of the representation is placed on record but it does not reflect that it was served upon the respondent No. 2 in support of his claim. The representation is also not on record, therefore, this submission cannot be accepted. 13. A copy of the representation is placed on record but it does not reflect that it was served upon the respondent No. 2 in support of his claim. The representation is also not on record, therefore, this submission cannot be accepted. 13. The detention order does not suffer from any legal infirmity and grounds of detention are definite, proximate and free from any ambiguity and the detenu was duly informed of what weighed with the detaining authority while passing the order of detention. The Detaining Authority after considering the material placed before it had arrived at the requisite satisfaction that the 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, therefore, there is no infraction of constitutional and statutory rights of the detenu. The Detaining Authority has arrived at its subjective satisfaction after considering all the material. 14. The decision of the Detaining Authority cannot be substituted by the Court while scrutinizing the detention order. Since preventive detention is a precautionary measure to protect the society from activities which may cause harm to their life and liberty. Preventive detention is a precautionary measure to protect the society from the activities that are likely to deprive a large number of people of their rights and protect them from damaging to their life and property. 15. In view of the aforesaid, none of the constitutional or statutory provisions available to the detenu have been violated, thus, there is no merit in this petition and the same is, accordingly, dismissed. 16. Detention record be returned to learned counsel for the respondents by the Registry forthwith.