Manzoor Sheikh vs Ut Of J&K & Another
2021 Latest Caselaw 485 j&K/2

                                IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR

                                              (THROUGH VIRTUAL MODE)

                                                                         Reserved on: 09.04.2021
                                                                        Pronounced on:27.04.2021

                                                   WP(Crl) No.140/2020

                        MANZOOR SHEIKH                                        ...PETITIONER(S)

                                             Through: - Mr. M. Ashraf Wani, Advocate.

                        Vs.

                        UT OF J&K & ANOTHER                                 ...RESPONDENT(S)

                                             Through: - Mr. Mir Suhail, AAG.

                        CORAM:        HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.


                                                           JUDGMENT

1) Impugned in this petition is order of detention bearing

No.DMB/PSA/04 of 2020 dated 29th of August, 2020, passed by

District Magistrate, Budgam (the detaining authority), whereby the

petitioner has been placed under preventive detention with a view to

preventing him from acting in any manner prejudicial to the

preservation of forest wealth.

2) Before adverting to the grounds of challenge taken by the

petitioner in this petition, it is necessary to notice few material facts

that have led to the filing of this petition.

3) As per the grounds of detention, claimed to have been served

MOHAMMAD ALTAF BHAT upon the petitioner, the petitioner is a resident of "A" zone forest area 2021.04.27 16:08 I attest to the accuracy and integrity of this document

and is engaged in timber smuggling by cutting green trees, instigating

his associates to adopt the same trade and transporting the illicit

material to Payeen belt. There are as many as three different FIRs

registered against the petitioner from time to time. FIR No.77/2017

pertains to the damage inflicted to four trees for which the cost

recoverable has been worked out to be Rs.1,85,500. FIR No.01/2019

pertains to the damage cause to three standing trees worth Rs.1,53,000/

and the third FIR i.e. FIR No.41/2020 relates to four trees of different

species damaged by the petitioner, whereby a loss to the tune of

Rs.2,24,000/ has been caused to the Department of Forest. As per the

allegations in the grounds of detention, a cost of Rs.5,62,500/ is

recoverable from the petitioner for having inflicted damage to eleven

green trees of Kail/Fir.

4) It is claimed that the petitioner accomplishes his job

clandestinely, mostly during night hours, and adopts routes where from

he could give a slip to the law enforcing agencies. He also takes

exclusive precautions in avoiding the interference of Forest

Authorities/police and always keeps himself and his associates well

equipped with arms and lethal weapons. It is, thus, concluded that the

petitioner has become so ferocious and at times violent that he has

succeeded in destabilizing the whole ecosystem of the Doodganga

range.

5) Taking note of the aforesaid activities of the petitioner and his

continued involvement in the activities prejudicial to the health of MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

forests, the detaining authority has though it appropriate to place the

petitioner in preventive detention so that he could be deterred from

pursuing his nefarious activities aimed at destroying green gold. It is in

the aforesaid backdrop, the detaining authority has passed the

impugned order.

6) The impugned order has been assailed by the petitioner, inter

alia, on the following:

(I) That the grounds of detention are completely vague and do

not give specific particulars of the allegations leveled

against him;

(II) That the grounds of detention served upon the petitioner is

a ditto copy of the communication of Divisional Forest

Officer, Pir Panjal Forest Division, Budgam, dated 22nd of

June, 2020;

(III) That the material was supplied by the DFO concerned to

the detaining authority on 22nd of June, 2020 whereas the

impugned detention order was passed on 29th of August,

2020, i.e. after a delay of more than two months and,

therefore, the impugned order is vitiated in law;

(IV) That the procedural safeguards laid down in the J&K

Public Safety Act and Article 22(5) of the Constitution of

India have not been followed;

MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

(V) That the material relied upon in the grounds of detention

has not been supplied to the petitioner, as a result whereof

he was incapacitated to file an effective representation

before the Government;

(VI) That the grounds of detention are too remote and stale that

there is no proximate and live link between the grounds of

detention and the prejudicial activities of the detenue;

7) On being put on notice, the detaining authority has filed a

detailed reply affidavit and has countered all the allegations made in the

petition. It is submitted that the petitioner was placed under preventive

detention by the detaining authority only after perusal of the relevant

material produced before it by the Divisional Forest Officer, Pir Panjal

Forest Division, Budgam, and after carefully examining the same. It

was only when the detaining authority derived subjective satisfaction in

the matter, that it issued the impugned detention order. It is submitted

that the detenue is involved in timber smuggling himself and is also

instigating his associates to adopt the same trade and transport illicit

material through the routes where it is easy to give slip to the law

enforcing agencies. The detenue has been found involved in three FIRs

registered in the year 2017, 2019 and 2020, which clearly shows that

the involvement of the petitioner in timber smuggling is continuous. It

is stated that the detention order was executed against the petitioner on

11.09.2020 by Executing Officer, ASI, Mushtaq Ahmad. The copy of

detention warrant, letter addressed to the detenue, grounds of detention MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

and the material relied upon by the detaining authority was handed over

to the petitioner and the warrant of detention and the grounds of

detention were read over and explained to him in a language that he

fully understood. He was also informed as to his right to make a

representation to the detaining authority or to the Government, if he so

desired.

8) The respondents have placed on record the Execution Report

duly signed by the petitioner as well as the Executing Officer. The

impugned order was approved by the Government within the stipulated

time and the same was placed before the Advisory Board for its opinion

as well. It is only when the Advisory Board after examination of the

case found sufficient grounds for detention of the petitioner, the

Government confirmed the impugned detention order vide Government

order No.Home/PB-V/1763 of 2020 dated 13.11.2020. It is, thus,

claimed that all the procedural and substantive safeguards laid down in

the J&K Public Safety Act as also Article 22 of the Constitution of

India have been completely adhered to and complied with in the instant

case and, therefore, the impugned order of detention does not warrant

any interference.

9) Heard learned counsel for the parties and perused the record.

10) Undoubtedly, as per the material collected and supplied by the

Forest Authorities, the petitioner is a habitual smuggler of timber and

has over the period of time engaged in transporting, concealing and

MOHAMMAD ALTAF BHAT keeping smuggled timber in his possession. The communication of 2021.04.27 16:08 I attest to the accuracy and integrity of this document

Divisional Forest Officer, Pir Panjal Forest Division, Budgam,

submitted to the detaining authority is quite elaborate and contains, in

detail, the activities of the petitioner aimed at inflicting damage to the

forests. As per three FIRs registered against him from time to time, the

petitioner is alleged to have stolen 775 cft. volume of Kail/Fir wood

from the forests and caused damage to the tune of Rs.5,62,500. The

manner in which he has organized his gang and conducts his activities

leaves one without any doubt that the petitioner is a habitual smuggler

and three criminal cases registered against him have not proved any

deterrence to him.

11) In view of the aforesaid activities of the petitioner brought to the

notice of the detaining authority by the Forest Authorities, there was

perhaps no option with the detaining authority but to invoke the

provisions of Section 8 of the J&K Public Safety Act.

12) It is not true that there is no application of mind by the detaining

authority and that the detaining authority has only reproduced the

dossier supplied by the DFO concerned. From the careful reading of the

grounds of detention, it clearly transpires that though the only material

before the detaining authority to derive its satisfaction was the one

placed before it by the Forest Authorities, yet the detaining authority

applied its mind and came to the conclusion that the petitioner was an

incorrigible offender not deterred by the registration of three FIRs

against him. It was, thus, thought imperative by the detaining authority

to invoke the provisions of Section 8 of the J&K Public Safety Act and MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

place the petitioner in preventive detention so as to prevent him from

continuing with his activities of timber smuggling to the detriment of

the green forest. I, therefore, find nothing wrong in the manner in

which the detaining authority has derived its satisfaction.

13) The order impugned, as is apparent from the record produced

before me by the respondents, was approved within time by the

Government and the same was also approved by the Advisory Board.

The Advisory Board, headed by a retired Judge of this Court along with

two members, examined the whole material placed before it and

rendered its opinion that there was sufficient cause for detention of the

detenue under Section 8 of the Act with a view to preventing him from

acting in any manner prejudicial to the forest wealth. It is pursuant to

the opinion rendered by the Advisory Board that the impugned order

was confirmed by the government and the petitioner was ordered to be

detained for a maximum period of one year.

14) The allegation of the petitioner that he was not served with the

relevant material relied upon in the grounds of detention is also

factually incorrect. The Execution Report prepared by the Executing

Officer, namely, Mushtaq Ahmad ASI, and signed by the petitioner

clearly indicates that the contents of the detention warrant along with

grounds of detention were read over and explained to the detenue in

Kashmiri language which he fully understood. He was also provided

with a copy of detention order, grounds of detention, copy of dossier

and other related documents (13 leaves). He was also informed that he MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

can make a representation to the Government as well as the detaining

authority against his detention if he so desired. In view of

acknowledgement signed by the petitioner to this effect, it cannot be

said that the petitioner was deprived of the relevant material relied upon

in the grounds of detention and was, thus, incapacitated to make an

effective representation. As a matter of fact, the detenue has chosen not

to make any representation, either to the detaining authority or to the

Government. The Advisory Board, in its proceedings, had taken note of

this fact.

15) This brings me to the last argument of the learned counsel for the

petitioner that the delay of two months in passing the detention order

vitiates the order of detention.

16) It is true that preventive detention is resorted to only when

emergency of the situation warrants such action, otherwise the law of

the land is sufficient to deal with those indulging in criminal activities

including criminal act of causing damage to the forests by indulging in

timber smuggling. It is true that the DFO concerned provided a dossier

of activities of the petitioner to the detaining authority on 20 th of June,

2020, whereas the order of detention was passed by the detaining

authority in August, 2020, i.e. almost after two months. It is not a case

of delayed execution of the order but it is a case where the detaining

authority did not immediately respond to the request of the Forest

Authorities and passed the order without applying its independent

mind. It took its own time to examine the material before it and to MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

derive satisfaction with regard to the necessity of placing the petitioner

under preventive detention. The subjective satisfaction so arrived at by

the detaining authority is not amenable to judicial review, as is held by

the Supreme Court in the case of Hardhan Saha vs. State of W.B,

(1975) 3 SCC 198.

17) In view of the foregoing, I find no merit in this petition and the

same is, accordingly, dismissed.

(Sanjeev Kumar) Judge Srinagar 27.04.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:          Yes/No
                                           Whether the order is reportable:        Yes/No




MOHAMMAD ALTAF BHAT
2021.04.27 16:08
I attest to the accuracy and
integrity of this document