Muzamil Ahmad Dar vs Union Territory Of J&K And Another
2022 Latest Caselaw 104 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                     (Through Virtual Mode)

                                                WP(Crl) No. 267/2021

                                                Reserved on : 10.02.2022
                                                Pronounced on :16.02.2022

Muzamil Ahmad Dar                                                ....Petitioner(s)

                 Through :- Mr. Syed Faheem Andrabi, Advocate
         V/s
Union Territory of J&K and another                             ....Respondent(s)

                Through :-    Mr. Asif Maqbool, Dy.AG

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                                 JUDGMENT

1. District Magistrate, Shopian-respondent No. 2 (for brevity "detaining

authority"), has, by Order No. 87/DMS/PSA/2021 dated 18.10.2021

placed Muzamil Ahmad Dar S/O Ab Rasheed Dar R/O Ray-Kaprin,

Shopian (for short "detenue") under preventive detention, with a view to

prevent him from acting in any manner prejudicial to the security of the

State. It is this order, petitioner has challenged in this petition and seeks

quashment thereof on grounds averred therein.

2. Counter affidavit has been filed by the respondents in opposition to the

petition. Detention record has also been produced by counsel for the

respondents to substantiate the statements made in counter affidavit.

3. Heard learned counsel for the parties and considered the matter.

4. Learned counsel for the petitioner has, to augment the case set up by the

petitioner in the petition on hand contended that the procedural safeguards,

envisaged under the Constitution of India in terms of the J&K Public

Safety Act have not been complied with while issuing the impugned

detention order. It is further contended that the grounds of detention are

vague, equivocal, obscure, indefinite, ambiguous and not connected with

the detenue. It is further averred that the material on the basis of which the

impugned detention order has been passed, i.e., order of detention, dossier,

recovery memo, statement under Section 161 Cr.P.C. and other

documents, have not been supplied to the detenue to enable him to make

an effective representation.

5. Per contra, learned counsel for the respondents insists that detention order

has been passed on subjective satisfaction by the detaining authority and

detention order is in accordance with law and there is no violation or

infringement of rights guaranteed under the Constitution of India. Hence,

he exhorts dismissal of petition.

6. Article 22(5) of the Constitution of India and Section 13 of the J&K

Public Safety Act, 1978, guarantee safeguard to detenue to be informed, as

soon as may be, of grounds on which order of detention is made, which

led to the subjective satisfaction of detaining authority and also to be

afforded earliest opportunity of making representation against order of

detention. Detenue is to be furnished with sufficient particulars to enable

him to make a representation, which on being considered, may obtain

relief to him. Detention record, made available by learned counsel for

respondents, reveals that detention order was made on proper application

of mind, to the facts of the case and detenue was delivered at the time of

execution of detention order, the material and grounds of detention and

also informed that he had a right to represent against his preventive

detention. Perusal of overleaf of detention order depicts its execution.

Perusal of the execution report signed by the detenue reveals that one ASI

Fayaz Ahmed P.No.-962609 of Police Station Zainpura executed the

detention warrant of the detenue on 20.10.2021 and the contents of

detention warrant and dossier documents has been read over and explained

to the detenue in Urdu/Kashmiri language which the detenue understood

fully in token of which his signatures has been obtained. It also divulges

that detenue was informed that he can make representation to the

Government against his detention order. It is contended by the respondents

in their counter affidavit that the relevant material has been supplied to the

detenue against proper receipt. The grounds of detention are definite,

proximate and free from any ambiguity. The detenue has been informed

with sufficient clarity what actually weighed with Detaining Authority

while passing detention order. Detaining Authority has narrated facts and

figures that made the authority to exercise its powers under Section 8 J&K

Public Safety Act 1978 and record subjective satisfaction that detenue 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.

7. The grounds of detention reveals that the detenue developed contacts with

terrorists and used to work as OGW of LeT/TRF outfits and also

motivated the youth of his area for indulging in anti-national and anti-

social activities and he is the key motivator always motivates the youth to

indulge in militancy. It further reveals that the detenue is a hard core over

ground worker (OGW) sympathizer and a promoter of TRF terrorist outfit

in valley.

8. The law is well settled that this Court in proceedings under Article 226 of

the Constitution is limited to scrutinizing whether the detention order has

been passed on the material placed before it, it cannot go further and

examine the sufficiency of the material. This Court does not sit in appeal

over the decision of detaining authority. This Court cannot substitute its

own opinion over that of detaining authority when the grounds of

detention are precise, pertinent, proximate and relevant. The Court can

only examine the grounds disclosed by the Government in order to see

whether they are relevant to the object which the legislation has in view,

that is, to prevent detenue from engaging in activities prejudicial to the

security of the State and public order. In this regard I am fortified by

decisions rendered by the Supreme Court in State of Gujarat vs. Adam

Kasam Bhaya (1981) 4 SCC 216; State of Punjab vs. Sukhpal Singh

(1990) 1 SCC 35; Union of India vs. Arvind Shergill (2000) 7 SCC 601;

Pebam Ningol Mikoi Devi vs. State of Manipura, (2010) 9 SCC; and

Subramanian vs. State of T.N. (2012) 4 SCC 699.

9. It may not be out of place to mention here that the Supreme Court, in

several decisions, has held that even one prejudicial act can be treated as

sufficient for forming the requisite satisfaction for detaining the person.

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.

10. Personal liberty is one of the most cherished freedoms, perhaps more

important than the other freedoms guaranteed under the Constitution. It

was for this reason that the Founding Fathers enacted the safeguards

in Article 22 in the Constitution so as to limit the power of the State to

detain a person without trial, which may otherwise pass the test of Article

21, by humanising the harsh authority over individual liberty. In a

democracy governed by the rule of law, the drastic power to detain a

person without trial for security of the State and/or maintenance of public

order, must be strictly construed. However, where individual liberty

comes into conflict with an interest of the security of the State or public

order, then the liberty of the individual must give way to the larger interest

of the nation. These observations have been made by the Supreme Court

in The Secretary to Government, Public (Law and Order-F) and another

v. Nabila and another (2015) 12 SCC 127.

11. The Supreme Court in Debu Mahato v. State of W.B. (1974) 4 SCC 135,

observed that while ordinarily-speaking one act may not be sufficient to

form the requisite satisfaction, there is no such invariable rule and that in a

given case "one act may suffice". That was a case of wagon-breaking and

given the nature of the Act, it was held therein that "one act is sufficient".

The same principle was reiterated in Anil Dely v. State of W.B. (1974) 4

SCC 514. It was a case of theft of railway signal material. Here too "one

act was held to be sufficient". Similarly, in Israil SK v. District

Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v.

State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper

wires in huge quantity and removal of railway fish-plates respectively,

was held sufficient to sustain the order of detention. In Saraswathi

Seshagiri's case (supra), a case arising under a single act, viz. attempt to

export a huge amount of Indian currency was held sufficient. In short, the

principle appears to be this: "Though ordinarily one act may not be held

sufficient to sustain an order of detention, one act may sustain an order of

detention if the act is of such a nature as to indicate that it is an organised

act or a manifestation of organised activity." The gravity and nature of the

act is also relevant. The test is whether the act is such that it gives rise to

an inference that the person would continue to indulge in similar

prejudicial activity. That is the reason why single acts of wagon-breaking,

theft of signal material, theft of telegraph copper wires in huge quantity

and removal of railway fish-plates were held sufficient by the Supreme

Court. Similarly, where the person tried to export huge amount of Indian

currency to a foreign country in a planned and premeditated manner, as in

the present case detenu has been apprehended with arms and ammunition,

it was held that such single act warrants an inference that he will repeat his

activity in future and, therefore, his detention is necessary to prevent him

from indulging in such prejudicial activity.

12. If one looks at the acts, the J&K Public Safety Act, 1978, is designed for,

is to prevent, they are all these acts that are prejudicial to security of the

State or maintenance of public order. The acts, indulged in by persons,

who act in concert with other persons and quite often such activity has

national level ramifications. These acts are preceded by a good amount of

planning and organisation by the set of people fascinated in

tumultuousness. They are not like ordinary law and order crimes. If,

however, in any given case a single act is found to be not sufficient to

sustain the order of detention that may well be quashed, but it cannot be

stated as a principle that one single act cannot constitute the basis for

detention. On the contrary, it does. In other words, it is not necessary that

there should be multiplicity of grounds for making or sustaining an order

of detention. Recently, same views and principles have been reiterated by

the Supreme Court in Gautam Jain vs Union of India and anr reported in

AIR 2017 SC 230.

13. For the reasons discussed, the petition fails and is, accordingly, dismissed.

(Tashi Rabstan) Judge Jammu:

16.02.2022 Pawan Angotra

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

PAWAN ANGOTRA 2022.02.17 13:55 I attest to the accuracy and integrity of this document