Wp(Crl) No. 272/202 vs Union Territory Of J&K & Anr
2022 Latest Caselaw 561 j&K/2

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                        WP(Crl) No. 272/2021
                                           Reserved on: 27.04.2022
                                           Pronounced on: 11.05.2022
Assadullah Parray

                                                   ...Petitioner(s)

             Through: Mr. Mian Tufail, Advocate.

                              Vs.
Union Territory of J&K & Anr.
                                                    ...Respondent(s)

             Through: Mr. Avtar Singh Sodhi, Dy.AG.


CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                            JUDGMENT

1. By virtue of Order No. 07/DMB/PSA of 2021 dated 22.09.2021 passed

by District Magistrate, Bandipora -respondent No.2 (hereinafter called

'impugned order') the detenue namely Assadullah Parray S/O Haji

Abdul Gani Parray R/O Syed Mohalla Hajan Bandipora, has been

ordered to be detained under preventive custody with a view to prevent

him from acting in any manner prejudicial to the maintenance of public

order in terms of Clause (a) of Section-8 of J&K Public Safety Act,

1978 (hereinafter called 'the Act'). Aggrieved of the said detention

order, detenue, through his daughter, has filed the present petition

seeking quashment of the same on the grounds taken in the petition in

hand.

2. Case set up by the petitioner is that the detenue, in terms of the

impugned order, has been detained under the Act on false and flimsy

grounds without any justification. It is also pleaded that the grounds of Page |2

detention are vague and mere assertions of the detaining authority and

no prudent man can make an effective and meaningful representation

against these allegations. Further plea of the detenue is that he has not

been provided the material/documents relied upon by the detaining

authority so as to make an effective representation before the detaining

authority. It has been further pleaded that the impugned order is to

remain valid for a period of 12 days as provided by Section 8(4) of the

Act, 1978 unless the same is approved by the Government within the

said period. It is during the period of those 12 days that a representation

can be made by a detenue before the District Magistrate. However, the

detenue has not been informed that he can make a representation before

the District Magistrate within a period of 12 days from the date of

passing of the impugned order, therefore, a valuable right of the detenue

stands defeated. Further contention is that neither translated copies of

FIRs nor translated copies of statements of witnesses recorded in the

FIRs registered against the detenue, seizure memo etc., have been

provided to the detenue so as to enable him to make an effective

representation to the appropriate authority. Detaining authority, while

passing the impugned order, has relied upon the stale grounds,

therefore, prayed for quashment of the impugned order on the said

grounds.

3. Reply affidavit has been filed by respondent No. 2 vehemently resisting

the petition. It is contended that detaining a person under the provisions

of Public Safety Act is always preventive in nature and its sole aim is to

prevent a person from pursuing anti-national/anti-social activities,

which are prejudicial to the maintenance of public order etc. In the

instant case there is enough material against the detenue which is highly Page |3

suggestive of the fact that the normal law of the land is not sufficient to

prevent him from continuing with his anti-national activities and, it is

evident that the detenue is highly motivated and is not likely to desist

from anti-national and unlawful activities.

4. Heard learned counsel for the parties and perused the detention record

produced by learned counsel for the respondents.

5. The detention record, on its perusal, would indicate that as many as

fourteen (14) FIRs, from the year 2005 till 2021, have been registered

against the detenue for his involvement in anti-national activities, which

is suggestive of the fact that the detaining authority, in order to curb the

criminal/anti-national activities of the detenue, has detained him under

the provisions of Public Safety Act.

6. It would be apt to say that right of personal liberty is most precious

right, guaranteed under the Constitution. A person is not to be deprived

of his personal liberty, except in accordance with procedures established

under law and the procedure as laid down in the case 'Maneka Gandhi

vs. Union of India, (1978 AIR SC 597)', is to be just and fair. The

personal liberty may be curtailed where a person faces a criminal charge

or is convicted of an offence and sentenced to imprisonment. Where a

person is facing trial on a criminal charge and is temporarily deprived of

his personal liberty owing to criminal charge framed against him, he has

an opportunity to defend himself and to be acquitted of the charge in

case prosecution fails to bring home his guilt. Where such person is

convicted of offence, he still has satisfaction of having been given

adequate opportunity to contest the charge and also adduce evidence in

his defense. However, framers of the Constitution have, by

incorporating Article 22(5) in the Constitution, left room for detention Page |4

of a person without a formal charge and trial and without such person

held guilty of an offence and sentenced to imprisonment by a competent

court. Its aim and object are to save society from activities that are

likely to deprive a large number of people of their right to life and

personal liberty. In such a case it would be dangerous, for the people at

large, to wait and watch as by the time ordinary law is set into motion,

the person, having dangerous designs, would execute his plans,

exposing general public to risk and causing colossal damage to life and

property. It is, for that reason, necessary to take preventive measures

and prevent a person bent upon to perpetrate mischief from translating

his ideas into action. Article 22(5) of the Constitution of India,

therefore, leaves scope for enactment of preventive detention law.

7. Having glance of the grounds of detention, it is clear that right from the

year 2005 till 2021, as many as 14 FIRs have been registered against the

detenue for his involvement in criminal/anti-national activities. In the

year 2014, the detenue was detained under Public Safety Act and after

his release from preventive custody, the detenue did not desist himself

from indulging in anti-national activities. His inclination towards

secessionist elements gave him a place in 'Hurriyat (G)' organization,

of which he was an active member. His involvement in instigation the

youth of the area for stone pelting and making the 'bandh' calls given

by separatists successful force the authorities concerned to keep him

under close surveillance. However, the detenue did not shun the path of

his nefarious and anti-national activities. Again, he was detained for his

involvement in anti-national activities in the year 2018 but was released

on May, 2019, after his detention order was quashed. After his release

he was again kept under close surveillance and during the period it was Page |5

noticed that the detenue has not shun the path of nefarious activities and

is continuously indulging in anti-national activities. The detenue had

also been found involved in a case of sabotage on 13.08.2021, before

Independence Day, when Panchayat-Ghar Hakbara, where a function to

celebrate the Day was to be organized, was set ablaze. A case vide FIR

No. 58/2021 had been registered at Police Station Hajin for the

commission of offences punishable under Section 426 IPC, 04 PPD Act

and 03 of Sabotage Act. The detenue was thus found actively involved

to carry on secessionist activities in Hajin area of district Bandipora.

The detaining authority after keeping in view the activities of the

detenue highly prejudicial and detrimental to the maintenance of the

public order, detained him under preventive custody, in terms of the

impugned order, which is under challenge in the present petition.

8. The record, produced by the State, reveals that vide communication

No.Lgl/PSA-07/2021 dated 05.10.2021, the detenue was informed to

make a representation to the detaining authority as also to the

Government against his detention order if the detenue so desires. In

compliance to District Magistrates detention order, the warrant was

executed by Executing Officer, namely, SI Bashir Ahmad of P/S Hajin

took custody of the detenue on 24.09.2021 by executing the PSA

warrants at District Jail, Baramulla, against a proper receipt. Further the

execution report reveals that the detenue can make a representation to

the Government as well as to the detaining authority. It is also revealed

that the detention warrant and grounds of detention have been read over

and explained to the detenue in Urdu/Kashmiri/English language which

the detenue understood fully and signatures of detenue was also

obtained which has been marked as 'Mark A' in the Execution Report.

Page |6

Thus, the contention of the petitioner for not supplying the material is

not sustainable.

9. It would be apt to refer to the observations made by the Constitution

Bench of the Supreme Court in the case of 'The State of Bombay v.

Atma Ram Shridhar Vaidya AIR 1951 SC 157'. Para- 5 of the said

judgment lays law on the point, which is profitable to be reproduced

hereunder:

"5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community ......... it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based Page |7

on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government."

10.In light of the aforesaid legal position settled by the Six-Judge

Constitution Bench way back in the year 1951, the scope of looking

into the manner in which the subjective satisfaction is arrived at by the

detaining authority, is limited. This Court, while examining the

material, which is made basis of subjective satisfaction of the detaining

authority, would not act as a court of appeal and find fault with the

satisfaction on the ground that on the basis of the material before

detaining authority another view was possible.

11.The courts do not even go into the questions as to whether the facts

mentioned in the grounds of detention are correct or false. The reason

for the rule is that to decide this, evidence may have to be taken by the Page |8

courts and that it is not the policy of the law of preventive detention.

This matter lies within the competence of the advisory board.

12.Those who are responsible for national security or for maintenance of

public order must be the sole judges of what the national security,

public order or security of the State requires. Preventive detention is

devised to afford protection to society. The object is not to punish a man

for having done something but to intercept before he does it and to

prevent him from doing. Justification for such detention is suspicion or

reasonable probability and not criminal conviction, which can only be

warranted by legal evidence. Thus, any preventive measures, even if

they involve some restraint or hardship upon individuals, as said by the

Supreme Court in the case 'Ashok Kumar v. Delhi Administration &

Ors., AIR 1982 SC 1143', do not contribute in any way of the nature of

punishment.

13.Observing that the object of preventive detention is not to punish a man

for having done something but to intercept and to prevent him from

doing so, the Supreme Court in the case 'Naresh Kumar Goyal v.

Union of India & Ors., 2005 (8) SCC 276', and reiterated in the

judgment dated 18th July 2019, rendered by the Supreme Court in

Criminal Appeal No.1064 of 2019 arising out of SLP (Crl.) No.5459

of 2019 titled 'Union of India and another v. Dimple Happy

Dhakad', has held that an order of detention is not a curative or

reformative or punitive, but a preventive action, acknowledged object of

which being to prevent anti-social and subversive elements from

endangering the welfare of the country or security of the nation or from

disturbing public tranquility or from indulging in anti-national activities

or smuggling activities or from engaging in illicit traffic in narcotic Page |9

drugs and psychotropic substances, etc., preventive detention is devised

to afford protection to society. The authorities on the subject have

consistently taken the view that preventive detention is devised to afford

protection to society. The object is not to punish a man for having done

something but to intercept before he does it and to prevent him from

doing so.

14.In the backdrop of foregoing discussion, the petition is devoid of any

merit and is, accordingly, dismissed.

15. Detention record, as produced, be returned to learned counsel for

respondents.

(M. A. CHOWDHARY) JUDGE Srinagar 11.05.2022 Muzammil. Q

Whether the order is reportable: Yes / No