Jammu & Kashmir High Court - Srinagar Bench

Hamid Farooq Bhat vs Ut Of J&K And Another on 12 August, 2022

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                                               WP(Cr1) No. 246/2021

                                               Pronounced on: 12.08.2022


Hamid Farooq Bhat                                           .... Petitioner(s)

                                 Through:- Mr. Wajid Haseeb, Advocate,

                           V/s

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

                                 Through:- Ms.Asifa Padroo, AAG
CORAM:      HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                   JUDGMENT

01. The detenu has assailed the detention order No.

10/DMK/PSA/2021 dated 18.10.2021 passed by the District Magistrate,

Kulgam,vide which, the detenu namely Hamid Farooq Bhat has been

detained under Section 8(a) of the J&K Public Safety Act, 1978 to prevent

him from acting in any manner prejudicial to security, sovereignty and

integrity of the State. The detenu has assailed this order of detention through

his bother namely Amir Ahmad Bhat.

02. The order of detention has been assailed by the detenu on the

grounds that; (i) the allegations mentioned in the grounds of detention have

no nexus with the detenu and have been fabricated by the police in order to

justify the illegal action of detaining the detenu; (ii) the allegations made in

the grounds of detention are vague, non-existent and no prudent man can

make a representation against such allegation; (iii) the detention order has

been passed without any application of mind, thus, the same is liable to be

set aside; (iv) the Detaining Authority has not prepared the grounds of

detention itself which is a pre-requisite for it; (v) all the relevant material

relied upon by the Detaining Authority while passing the order of detention

has not been furnished to the detenue; (vi) the detenu was not informed of

his right to make representation against the detention order to the

Government or to the Detaining Authority, as such, the detention order is

required to be set aside.

03. Ms. Asifa Padroo, learned Additional Advocate General appearing

on behalf of the respondents has filed the counter affidavit as well as

produced the detention record. It is submitted by her that the detenu was

detained pursuant to the detention order under the provisions of Section 8 of

the J&K Public Safety Act, 1978 on the basis of the record submitted by the

Senior Superintendent of Police, Kulgam. The Detaining Authority after

carefully examining the case and also after deriving its subjective

satisfaction in this matter found it imperative and necessary to detain the

detenu from acting in any manner prejudicial to the security of the State. It is

also stated that the detention order was executed by Executing Officer and

all the material relied upon by the Detaining Authority were provided to

him. The contents of the same were read over and explained to the detenu in

the language which he fully understood. He was also informed of his right to

make representation to the Detaining Authority or to the Government, if he

so desires but the detenu has not exercised his right to make any

representation. It is also stated that the Advisory Board has examined the

case of the detenue and found sufficient grounds for upholding the order of

detention.

04. Heard learned counsel for the parties and perused the record also.

05. The detenu was detained vide order dated 18.10.2021 passed by

the District Magistrate, Kulgam. As per the grounds of detention, the detenu

was detained keeping in view his activities, as he was found to be an Over

Ground Worker of TRF and was actively involved in providing a variety of

logistics support to the shooters of TRF who have unleashed a spate of terror

by killing persons who are soft targets. The detenue, being a hardcore OGW

of banned HM and TRF Militants outfit, the detenu‟s conduct has fortified

the interests of the said terrorist organization in order to secede the State

from the rest of the Country, therefore, to prevent him from indulging in

such activities, it has found imperative to detain the detenu under the

relevant provisions of the Public Safety Act.

06. Perusal of the detention record reveals that the execution report,

which is placed on record, the Executing Officer-Mohammad Amin of DPL,

Kulgam had executed the warrant, the detenue was provided copy of the

detention order, grounds of detention, dossier and other relevant material.

The contents of warrant & grounds of detention, dossier and notice were

read over and explained to the detenu in Urdu/Kashmiri languagewhich he

fully understood. This apart, he was also informed of his right to make a

representation to the Detaining Authority or to the Government against the

order of detention.

07. It is well settled that, in case, the detenu has been detained under

the preventive detention and the allegation as well as the material against the

detenu relied upon by the Detaining Authority was sufficient to derive its

subjective satisfaction that the detention of the detenu was imperative to

prevent him from acting in any manner which would cause threat to the

ordinary citizen. The receipt which is placed on record reveals that the

detenu has been provided the grounds of detention, contents of the detention,

dossier, copy of FIR and other material, the same has been acknowledged by

the detenu. This apart, the Advisory Board has examined the case and upheld

the order of detention as they have found sufficient grounds for detaining the

detenu.

08. Preventive detention has been held to be permissible under the

Constitution for detaining a person in accordance with the law made on the

subject. Preventive detention is made with the aim and object to keep the

society from activities of a person which are likely to deprive the large

number of people from their personal liberty. The object is to curtail and

prevent the liberty of an individual who involves in such activities is in the

larger public interest.

09. Personal liberty is one of the most precious rights guaranteed

under the Constitution and no one can be deprived of his right to life and

personal liberty except by procedure established by law. Article 22(5),

however, provides detention of person without formal charge, trial and

without person being held guilty of an offence. The only objective is to

prevent a person from creating mischief and to protect the society.

10. 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."

11. Similarly, in "Secretary to Government, Public (Law and

order) and another vs. Nabila and another", (2015) 12 SCC 127, the

Hon‟ble Apex Court has held 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. However, the detaining authority must keep in mind while passing the order of detention, the civil and constitutional right granted to every citizen by Article 21 of the Constitution of India, inasmuch as no person shall be deprived of life and liberty except in accordance with the procedure established by law. The laws of Preventive Detention are to be strictly construed and the procedure provided must be meticulously followed".

12. Similarly, in AIR 2019 SC 3428, "Union of India and another

vs. Dimple Happy Dhakad", it has been held by Hon‟ble Apex Court that

the Court must be conscious that the satisfaction of the Detaining Authority

is „subjective‟ in nature and the Court cannot substitute its opinion for the

subjective satisfaction of Detaining Authority and interfere with the order of

detention, though the same is subject to review on the procedural safeguards.

13. The grounds of detention are definite, proximate and free from any

ambiguity and the detenu was informed with sufficient clarity what weighed

with the detaining authority while passing the order of detention. The

procedural safeguards are complied with.The Detaining Authority arrived at

the satisfaction after considering all the material placed before it and none of

the constitutional and statutory rights of the detenue have been violated. The