Danish Habib Wani vs Ut Of J&K And Anr
2021 Latest Caselaw 140 j&K/2

                               IN THE HIGH COURT OF JAMMU AND KASHMIR
                                             AT SRINAGAR

                                                          Reserved on:  04.02.2021
                                                          Pronounced on: 18.02.2021

                                                                 WP(Crl) No.626/2019

                      Danish Habib Wani                              ...Petitioner(s)
                                     Through: -     Mr. G. N. Shaheen, Advocate.

                               Vs.

                      UT of J&K and anr.                             ...Respondent(s)

                                     Through: -     Ms. Asifa Padroo, AAG,


                      CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.


                                              JUDGEMENT

1) Impugned in this petition is order of detention bearing

No.74/DMB/PSA/2019 dated 21.10.2019 (the detaining

authority), whereby one Danish Habib Wani S/o

Habibullah Wani R/o Hygam Sopore District Baramulla

(the detenue) has been detained with a view to prevent him

from acting, in any manner, prejudicial to the security of

the State.

2) It is claimed that the detenue was arrested by police

on 11.09.2019, and was booked in case FIR No.220/2019

and while the detenue was in custody of police in the

aforesaid FIR, he was shifted to Central Jail, Srinagar,

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 where he was detained in the preventive custody in terms I attest to the accuracy and integrity of this document

of the impugned order. The detenue, by the medium of this

petition filed through his father, has assailed the impugned

order of detention, inter alia, on the following grounds:

(I) That the allegations made in the grounds of detention are vague and non-existent and on the basis of thereof no prudent person can make a representation against his detention;

(II) That the detenue was already in custody in FIR No.220/2019 when he was detained pursuant to impugned order of detention. He had neither applied for bail nor was same otherwise due to him given the fact that the case registered against him involved commission of substantive offences under Unlawful Activities (Prevention) Act. The detaining authority has not shown any awareness about the aforesaid fact nor has it indicated any compelling reasons to pass the detention order when the detenue was already with the police in connection with supra FIR;

(III) That the detenue is an illiterate person, as such, it was incumbent upon the detaining authority to serve the translated version of the grounds of detention upon him which has not been done in the instant case;

(IV) That the detenue was not furnished the relevant material like copy of dossier, statement of witnesses recorded under MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

Section 161 and 164-A Cr. P. C, seizure memo, recovery memo etc. etc. to enable the detenue to make an effective representation;

3) The detaining authority has filed the reply affidavit,

wherein it is submitted that the petitioner was detained on

21.10.2019, under the provisions of J&K Public Safety Act,

1978, and was directed to be lodged in Central Jail,

Srinagar. The detention was necessitated because of

involvement of the detenue in very serious offences against

the State as mentioned in the FIRs registered against him.

The detenue was informed that he can make a

representation to the government as well as the detaining

authority against his detention. It is further claimed in the

reply affidavit that all statutory requirements and

constitutional guarantees have been fulfilled and complied

with by the detaining authority. The order has been issued

validly and legally. The respondents have placed reliance on

the judgment of the Supreme Court in Haradhan Saha v.

State of W.B (1975) 3 SCC 198.

4) I have heard learned counsel for the parties and

perused the record.

5) So far as the first ground of challenge is concerned, it

is the contention of learned counsel for the petitioner that

the grounds of detention are vague, as such, it is difficult MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

for any person to make an effective representation against

such kind of grounds. A perusal of the grounds of detention

reveals that the detaining authority has taken pains to not

only mention the dates of incidents but also the names of

the militants with whom the detenue had developed

contacts. The grounds of detention contain the names of

the organizations with which detenue has been found

involved. Specific names of the places where the detenue is

stated to have participated in the meetings with militants

and also the exact role of the detenue in different incidents

is specified in the grounds of detention. Therefore, by no

stretch of imagination it can be stated that the grounds of

detention are vague, as has been contended by learned

counsel for the petitioner.

6) Next it has been vehemently contended by learned

counsel for the petitioner that the detenue was already in

custody in FIR No.220/2019 when he was detained

pursuant to the impugned detention order but in the

grounds of detention, the detaining authority has not

mentioned this fact which shows non-application of mind

on its part. In this regard, the petitioner has placed on

record copy of remand order dated 11.09.2019 passed by

Chief Judicial Magistrate, Sopore, according to which the

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

detenue was remanded to ten day's police custody with

effect from 11.09.2019 to 20.09.2019 in FIR No.220/2019.

7) In the grounds of detention it has been mentioned

that the petitioner is presently in police remand in FIR

No.33/2019 for offences under Section 307 RPC and 7/27

Arms Act and not in FIR No.220/2019.

8) A perusal of the detention record shows that the

custody of the detenue was changed from FIR No.220/2019

to FIR No.33/2019 on 06.10.2019. This makes clear that

as on date of passing of order of detention, the detenue was

not in custody in connection with FIR No.220/2019 but he

was in custody in connection with FIR No.33/2019 which

fact finds mention in the grounds of detention. Thus, it

cannot be stated that there has been any non-application

of mind on the part of the detaining authority.

9) Next it has been contended that the detenue was

already in custody in substantive offences at the time of

passing of impugned order of detention and there were no

compelling reasons for the detaining authority to detain the

detenue under preventive detention laws. It has been

argued that the detenue was booked for offences under

Unlawful Activities (Prevention) Act and, as such, there

were remote chances of his getting bail. MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

10) It is a settled law that pendency of prosecution in a

substantive offence is no bar to an order of preventive

detention. Preventive detention and prosecution are two

different areas. In a prosecution, an accused is sought to

be punished for past acts whereas in preventive detention,

the past conduct of a person becomes a material for

inferring about his future course of probable conduct.

11) A Constitution Bench of the Supreme Court in the

case of Haradhan Saha v. State of W. B, (1975) 3 SCC

198, while considering various aspects concerning

preventive detention, has observed as under:

"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention 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.

33.Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different.

In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on MOHAMMAD ALTAF BHAT 2021.02.19 14:39 the part of the detenu. I attest to the accuracy and integrity of this document

34.The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. The State of West Bengal reported in A.I.R. 1972 S.C. 2256, Ashim Kumar Ray v. State of West Bengal reported in A.I.R. 1972 S.C. 2561, Abdul Aziz v. The Distt. Magistrate, Burdwan & Ors. reported in A.I.R. 1973 S.C. 770 and Debu Mahto v. The State of West Bengal reported in A.I.R. 1974 S C. 816 correctly lay down the principles to be followed as to whether a detention order is valid or not. The, decision in Biram Chand v. State of Uttar Pradesh & Ors. reported in A.I.R. 1974 S.C. 1161 Which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under- the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate, issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardize the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances."

12) From the afore-quoted enunciation of law on the

subject, it is clear that the mere fact that a person has MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

been in custody in a substantive offence does not act a bar

for a detaining authority to detain him under preventive

detention laws if the circumstances warrant so.

13) It is true that in the instant case the detenue has

been booked in substantive offences under Prevention of

Unlawful Activities Act but then not in every case an

accused booked for such offences is refused the concession

of bail. It all dependents upon facts and circumstances of

each case. The apprehension of the detaining authority that

there is likelihood of detenue being admitted to bail cannot,

be interfered with by the Court.

14) In Ahmad Nassar v. State of Tamil Nadu, (1999) 8

SCC 473, the Supreme Court was dealing with a case

where there was an order of rejection of bail application

before the detaining authority. The Court, taking a view

that the detaining authority can draw an inference that

there is likelihood of detenue being released on bail,

observed as under:

"So before the detaining authority, there existed not only order dated 12.4.1999 rejecting his bail application but the contents of the bail application dated 1.4.1999. The averments made therein are relevant material on which subjective satisfaction could legitimately be drawn either way. Thus in spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that MOHAMMAD ALTAF BHAT 2021.02.19 14:39 there is likelihood of detenu being released on I attest to the accuracy and integrity of this document

bail. Merely because no bail application was then pending is no premise to hold that there was no likelihood of his being released on bail. The words "likely to be released" connote chances of being bailed out, in case there be pending bail application or in case, if it is moved in future, is decided. The word "likely" shows it can be either way. So without taking any such risk if on the facts and circumstances of each case, the type of crime to be dealt with under the criminal law, including contents of the bail application, each separately or all this compositely, all would constitute to be relevant material for arriving at any conclusion. The contents of bail application would vary from one case to the other, coupled with the different set of circumstances in each case, it may be legitimately possible in a given case for a detaining authority to draw an inference that there is likelihood of detenu being released on bail."

15) From the ratio laid down by the Supreme Court in the

aforesaid case, it is clear that this Court cannot interfere

with the inference drawn by the detaining authority that

there is likelihood of the detenue being admitted to bail.

The contention of learned counsel for the petitioner is this

regard is, therefore, without any merit.

16) It has also been urged by the learned counsel for the

petitioner that the petitioner is an illiterate person and he

understands only Kashmiri and Urdu language. According

to the learned counsel, no translated scripts of the grounds

of detention were furnished to the detenue, as such, he was

unable to make an effective representation against the

same.

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

17) A perusal of the record shows that the detenue has

qualified 12th class and, in fact, during the pendency of this

petition, the detenue has sought permission to appear in

B.A. examination which means that the detenue is a

sufficiently educated person. The documents produced by

the petitioner belies his own contention that he is an

illiterate person. Even otherwise, there is an affidavit of the

Executing Officer available in the detention record, wherein

he has specifically deposed that he has explained the

grounds of detention to the detenue in the language he

understands. Therefore, the contention of the petitioner in

this regard is without any substance.

18) Lastly, it has been argued by the learned counsel for

the petitioner that the detenue in the instant case has not

been furnished the material, particularly the material

which formed the basis of the grounds of detention, as a

result of which he has been hampered from making an

effective representation against the order of detention.

19) The record produced by the respondents before this

Court shows that the petitioner has been provided not only

the detention order, grounds of detention, police dossier

but also the copies of FIRs and the statements of witnesses

recorded under Section 161 Cr. P. C, reference whereof is MOHAMMAD ALTAF BHAT 2021.02.19 14:39 made in the grounds of detention. In fact, these documents I attest to the accuracy and integrity of this document

form annexures to the grounds of detention and the

petitioner has executed a receipt token of having received

those documents which is available in the detention record.

The contention of learned counsel for the petitioner in this

regard is, therefore, not substantiated from the available

record.

20) For the foregoing reasons, I do not find any merit in

this petition. The same is, accordingly, dismissed.

(Sanjay Dhar) Judge Srinagar 18.02.2021 "Bhat Altaf, PS"

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

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document