Wp(Cr.) No. 255/2022 vs Union Territory Of J&K & Anr
2023 Latest Caselaw 941 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR


                        WP(Cr.) No. 255/2022
                                           Reserved on: 26.07.2023
                                           Pronounced on: _ 14.08.2023_
Zubair Ahmad Bhat

                                                ...Petitioner(s)

           Through: Mr. Najmu Sakib, Advocate.

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

           Through: Mr. Mubashir Majid Malik, Dy.AG with
                    Mr. Younis Hafiz, Assisting counsel.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                               JUDGMENT

1. The petitioner Zubair Ahmad Bhat S/O Hamidullah Bhat R/O Okey

Kulgam (for short 'detenue') through his father, has called in

question the detention order No. 31/DMK/PSA/2022 dated

10.04.2022 ( for short 'impugned order') passed by the District

Magistrate Kulgam -Respondent No. 2 (for short 'detaining

authority'), whereby the detenue came to be detained under the

provisions of the Jammu & Kashmir Public Safety Act (for short

"Act").

2. Precisely the case of the petitioner is that the detenue was arrested

by the police concerned on suspicion of being involved in case FIR

No. 03/2022 under Sections 307 IPC, 7/27 I.A Act and 13, 16, 18, 20

of Unlawful Prevention Act registered at Police Station Kulgam. It is Page |2

further averred that the detenue was not supplied with copy of

dossier and other allied material.

3. Respondents have filed their counter to the writ petition and resisted

the same on the ground that the activities of the detenue were highly

prejudicial to the security of the State, therefore, to prevent him from

acting in such activities, he has been detained strictly in accordance

with the provisions of Public Safety Act. Respondents further

averred that they have followed all the constitutional and statutory

safeguards while passing the impugned order of detention. It is

contended that the detenue has remained active in anti-national

activities. It is contended that the contents of the warrant and

grounds of detention were read over to the detenue in the language

he understood, and was also informed of his right to make a

representation to the Government against his detention. He has in

token affixed his signatures on the documents. The grounds of

detention are precise, relevant and disclose the need of the hour for

detaining the detenue.

4. Perusal of grounds of detention reveals that on 04.01.2023, the

Police station Kulgam received information through reliable sources

of presence of terrorists in the village Okay; that the troops of Army

9 RR and 34 RR, contingent of 18th Bn CRPF alongwith the police

under the supervision of SSP Kulgam cordoned off the area and

launched search operation; that during the search operation, civilians

were evacuated with good efforts from the spot; that the terrorists

hiding in the house of Hameed Bhat S/O Khazir Bhat R/O Okay, Page |3

fired indiscriminately with their illegally acquired weapons upon the

search party with the intention to kill them; that the search party

tried to persuade the terrorists for their surrender which they refused

and continued firing upon the search party; that the firing was

retaliated in self-defense. On spot it was learnt that the hiding

terrorists were Amir Ahmad Wani and Sameeer Ahmad Khan, who

were provoking the general public to wage war through armed

struggle in order to secede the UT of J&K from the Union of India;

that during the course of investigation, the detenue was found

involved in the commission of crime and later on was arrested in the

said case; that being under custody the detenue had not abstained

from seditious and unlawful activities; that it has come-fore through

reliable gencies that the detenue is constantly involved in

radicalization and motivation of inmates towards anti national

activities to the detriment of security of the UT of J&K.

5. Perusal of the record and pleadings do disclose that the detaining

authority has complied with the mandate of law and by no stretch of

imagination it can be said that the detaining authority has committed

any breach which would warrant interference by this Court.

6. Grounds of detention unmask that the detenue had inclination

towards unlawful activities which ultimately resulted in detenue

becoming a hardcore over-ground worker for terrorist outfits, and in

the past he very ingeniously avoided getting incriminated openly but

he was found involved in the aforementioned case registered against

him.

Page |4

7. The purpose of J&K Public Safety Act, 1978, is to prevent the acts

and activities prejudicial to the security of the State or maintenance

of public order. These acts are preceded by good amount of planning

and organization by the set of people fascinated in turmoil. 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.

8. It may not be out of place to mention here that grounds of detention

are definite, proximate and free from any ambiguity. Detenue has

been informed with sufficient clarity what actually weighed with

Detaining Authority while passing detention order. Detaining

Authority has narrated the facts that made it to exercise its powers

under Section 8 of the Act of 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. In such circumstances, suffice

it is to say that there had been material before detaining authority to

come to a conclusion and hence, it cannot be said that subjective

satisfaction of detaining authority was wrongly arrived at or grounds

of detention are self-contradictory or vague. The role of detenue has

been specifically described.

Page |5

9. Even otherwise it is settled law that this Court exercising writ

jurisdiction under Article 226 of the Constitution has limited scope

to scrutinize whether detention order has been passed on the material

placed before it. It cannot go further and examine sufficiency of

material. This Court does not sit in appeal over the decision of

detaining authority and cannot substitute its own opinion over that of

detaining authority when grounds of detention are precise, pertinent,

proximate and relevant.

10. This Court can only examine 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 security of the State or maintenance of public

order. The following judgments have been rendered by the Hon'ble

Apex Court, where this point has been discussed:-

i) Union of India v. Arvind Shergill (2000) 7 SCC 601;

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

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

11. If an order of detention is made only to bypass a criminal

prosecution which may be annoying because of inconvenience of

proving guilt in a court of law, it would certainly be an abuse of

power of preventive detention and detention order would be bad. But

if object of making the order of detention is to prevent commission

of activities in future, it would be a perfectly legitimate exercise of

power to make the order of detention. The Court would have to

consider all the facts and circumstances of the case in order to Page |6

determine on which side of the line detention order falls. The order

of detention was plainly with a view to prevent a detenue from

continuing the activities which are prejudicial to the security of the

State or maintenance of public order.

12. In the above background, 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 judgment lays law on the point, which is

advantageous 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 defense 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 (3) 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 22 WP(Crl) Page |7

no.549/2019 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 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."

13. The preventive detention is aimed at preventing prejudicial activities

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 of

detention and the information in its possession, may fall far short of

legal proof of any specific offence. Public Safety Act, therefore,

requires that the Government must be satisfied with respect to any

person that with a view to preventing him from acting in any manner

prejudicial to the security of the State or the maintenance of public Page |8

order or the maintenance of supplies and services essential to the

community, it is necessary to make an order directing that such

person be detained. The Act, therefore, implies that 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

objects mentioned in the Act and that detaining authority was

satisfied that it was necessary to prevent him from acting in such a

manner. Thus, it clearly shows that it is the satisfaction of

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 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 Act. Whether in a

particular case, the grounds are sufficient or not, according to the

opinion of any person or body other than the Government, is ruled

out by the language of the Act. It is not for the Court to sit in place

of the Government and try to determine if it would have come to the

same conclusion as 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, the Supreme Court has said, are passed on

information and material which may not be strictly admissible as Page |9

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.

14. The contention of learned counsel for petitioner that failure on the

part of detaining authority to provide translated copies of documents

relied upon in grounds of detention vitiates the detention, is too

fallacious to be accepted. The detenue is a Graduate . The grounds of

detention have been well explained to detenue in the language he

understands but he never demanded translated copies of any of the

documents forming part of grounds of detention. Otherwise also,

from relevant provisions of the Act of 1978, dealing with preventive

detention, read with the Constitutional mandate under Article 22 (5)

of the Constitution of India, I do not find that such requirement is

mandatory and failure on part of detaining authority to supply

translated copies in all cases, vitiates detention. This may be so if

there is a specific request from detenue to supply such copies in a

language he understands and then there is failure on the part of

detaining authority to respond. Nothing of the sort has happened in

the instant case. It is also not demonstrated before this Court as to

how this omission on the part of detaining authority has violated

rights of the detenue to make any effective representation. He had an

option to appear before Advisory Board and make such a submission

before it but he has chosen not to do so. In such circumstances,

submissions of learned counsel for petitioner are wholly

unacceptable and thus, rejected.

P a g e | 10

15. The Supreme Court in a case 'Abdul Latief Abdul Wahab Sheikh V.

B.K. Jha, 1987 (2) SCC 22 has in unequivocal terms made clear that

it is only the procedural requirements, which are the only safeguards

available to detenue, that is to be followed and complied with as the

Court is not expected to go behind the subjective satisfaction of

detaining authority. In the present case, the procedural

requirements/safeguards have been followed and complied with by

the respondents in letter and spirit.

16. Undoubtedly, personal liberty is one of the most cherished freedoms,

perhaps more important than the other freedoms guaranteed under

the Constitution. In a democracy governed by the rule of law, the

drastic power to detain a person without trial for security of the State

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 maintenance of 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

case of 'Sunil Fulchand Shah v. Union of India & Ors. (2000) 3

SCC 409'.

17. To sum up, a law of preventive detention is not invalid because it

prescribes no objective standard for ordering preventive detention,

and leaves the matter to subjective satisfaction of the Executive. The

reason for this view is that preventive detention is not punitive but

preventive and is resorted to with a view to prevent a person from

committing activities regarded as prejudicial to certain objects that P a g e | 11

the law of preventive detention seeks to prescribe. Preventive

detention is, thus, based on suspicion or anticipation and not on

proof. The responsibility for security of State or maintenance of

public order rests on the Executive and it must therefore, have

necessary powers to order preventive detention. Having said that,

subjective satisfaction of a detaining authority to detain a person or

not, is not open to objective assessment by a Court. A Court is not a

proper forum to scrutinize the merits of administrative decision to

detain a person. The Court cannot substitute its own satisfaction for

that of the authority concerned and decide whether its satisfaction

was reasonable or proper, or whether in the circumstances of the

matter, the person concerned should have been detained or not. It is

often said and held that the Courts do not even go into the question

whether the facts mentioned in 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 courts and that is not the policy of law of

preventive detention. This matter lies within the competence of

Advisory Board. While saying so, this Court does not sit in appeal

over decision of detaining authority and cannot substitute its own

opinion over that of detaining authority when grounds of detention

are precise, pertinent, proximate and relevant.

18. Applying the ratio of the judgments supra and having glance on the

discussions made hereinabove, the respondents have complied with

the mandate and safeguards provided by the Act. Hence, this writ

petition merits dismissal and is, accordingly, dismissed.

P a g e | 12

19. Detention record, as has been produced by the learned counsel for

the respondents, be returned back to him.

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

Whether the order is reportable: Yes / No