Showkat Ali Aged 26 Years vs Union Territory Of Jammu And ...
2023 Latest Caselaw 2288 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                Reserved on: 11.10.2023
                                              Pronounced on: 13.10.2023

WP(Crl) No. 42/2023


1.     Showkat Ali aged 26 years S/o                    .....Petitioner/Appellant
       Mishar Din @ Mishru R/o
       Saildhar Tehsil Mahore District
       Reasi, through father Mishar Din
       @ Mishru aged 61 years S/o
       Noora R/o Saildhar Tehsil
       Mahore, District Reasi.



R.
                         Through: Mr. Aftab Malik, Advocate
                   Vs
1.     Union Territory of Jammu and Kashmir
       through Principal Secretary to
       Government, Home Department, Civil
       Secretariat, Jammu

2.     District Magistrate, Reasi.

3.     Sr. Superintendent of Police, Reasi.

                                                            ..... Respondents
                         Through: Mr. Mohd Irfan Inqlabi, GA

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

1) The petitioner has challenged order No. 3-PSA of 2023 dated

20.02.2023 passed by respondent No. 2 (District Magistrate, Reasi),

whereunder the petitioner has been taken into preventive custody in order to

prevent him from indulging in the activities, which are prejudicial to the

security of the State.

WP(Crl.) No. 42/2023

2) The petitioner has challenged the impugned order of detention on the

grounds that he has been implicated and detained on the basis of false and

baseless daily diary reports. It has been submitted that in the grounds of

detention, the respondents have named certain militants with whom the

petitioner is stated to have been in contact in the year 2002 but at the

relevant time the petitioner was only five years old. Therefore, the grounds

of detention, on the face of it, appear to be false. It is contended that the

petitioner has no criminal antecedents and he has never acted in any manner

prejudicial to the security of the State. It is also contended that the material

before the detaining authority was not sufficient for drawing satisfaction for

passing the impugned order of detention. It is further contended that the

grounds of detention are verbatim replica of the police dossier. It is also

contended that the material forming basis of grounds of detention has not

been supplied to the petitioner, nor the same was read over to him in the

language understood by the petitioner. It is also contended that the impugned

order of detention has been passed by respondent No. 2 without application

of mind.

3) The respondents have contested the writ petition by filing reply

thereto. In their reply, the respondents have submitted that the petitioner has

been taken into preventive custody on the basis of the material and the facts

available against him, which include three daily diary reports at Police

Station, Mahore regarding his suspicious activities, which were prejudicial

to the security of the State. As per the reports, the petitioner was indulging in

anti-national activities and was in constant contact with his cousin brothers,

WP(Crl.) No. 42/2023

who were involved in militancy and have presently crossed over to Pakistan.

It has also been submitted that the petitioner has been indulging in

radicalizing the youth of District Reasi for joining and strengthening his

network against the nation, which is threatening the sovereignty and security

of the nation. It has been further submitted that all the constitutional and

procedural safeguards have been adhered to by the respondents and the

whole material that has formed basis of grounds of detention has been

furnished to the petitioner. It has also been submitted that the grounds of

detention and other material was read over and explained to the petitioner in

the language, he understands and that the contention of the petitioner in this

regard is against the record. The respondents have also produced detention

record to lend support to their contentions.

4) I have heard learned counsel for the parties and pursued the record of

the case including the record of detention.

5) First and foremost ground, that has been urged by learned counsel for

the petitioner is that there was no material before the detaining authority on

the basis of which it has drawn satisfaction for passing the impugned order

of detention. It has been contended that the petitioner has never been

involved in any FIR and that the daily diary reports have been manufactured

to falsely implicate him. According to the learned counsel, the persons with

whom the petitioner is stated to be in contact with, have crossed over to

Pakistan in the year 2002 when the petitioner was only five years old, as

such, it is absurd to say that he was in contact with said persons.

WP(Crl.) No. 42/2023

6) So far as the scope of judicial review as regards the subjective

satisfaction of the detaining authority is concerned, it is by now a settled

principle of law that Court cannot go behind the subjective satisfaction of the

detaining authority. In the recent judgment of the Supreme Court delivered

in the case of Ameena Begum vs. the State of Telengana and others, SLP

Crl. No. 8510/2023, decided on 04.09.2023 on which reliance has been

placed by the learned counsel for the petitioner, the tests for determining the

legality of orders of preventive detention have been laid down. The Supreme

Court has observed that the Court would be entitled to examine, whether:

"(i) the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

(ii) in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

(iii) power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorized by the statute, and is therefore ultra vires;

(iv) the detaining authority has acted independently or under the dictation of another body;

(v) the detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

WP(Crl.) No. 42/2023

(vi) the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

(vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

(viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

(ix) the grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and

(x) the timelines, as provided under the law, have been strictly adhered to."

7) From the above, it is clear that the scope of examining the subjective

satisfaction of the detaining authority is limited to the extent of examining as

to whether the detaining authority has applied its mind to all the relevant

circumstances and whether there is a proximate link between the past

conduct of a person and imperative need to detain him.

8) Coming to the facts of the instant case, as per the grounds of

detention, cousin brother of the petitioner, Mohd Sharief had join militancy

in the year 2002. Another cousin of the petitioner, Mohd Shafi had also

joined militant activities, who is presently in Pakistan. Brother-in-law of the

WP(Crl.) No. 42/2023

petitioner, Nisar Ahmad also joined militancy in the year 2002, who was

later killed by the security forces in the year 2007. It is indicated in the

grounds of detention that the petitioner is maintaining contacts with his two

cousin brothers, who are now settled in Pakistan. It is also alleged that the

petitioner is in contact with one Mohd Qasim, a Pak based handler. This, as

per the grounds of detention, is being done by the petitioner in order to

revive militancy in District Reasi.

9) All this information has been recorded in as many as three daily diary

reports dated 01.02.2023, 06.02.2023 and 11.02.2023, registered with Police

Station, Mahore. The details of activities of the petitioner as mentioned in

these three daily diary reports are recorded in the grounds of detention in

great detail. These are specific and clear, leaving no scope for ambiguity.

The petitioner may have been only five years old when his cousin brothers

who were indulged in militant activities have crossed over to Pakistan but

allegation is not that he was in contact with them at the time when they

crossed over to Pakistan but the allegation against the petitioner is that at

present he is in contact with his cousin brothers, who are adding and

assisting him in reviving militancy in District Reasi.

10) Thus, it cannot be stated that the detaining authority has derived its

subjective satisfaction on a material which is not relevant. It can also be not

stated that the material which has formed basis of impugned order of

detention has no live and proximate link to the necessity of preventive

detention of the petitioner as the incidents narrated in the grounds of

detention relate to February 2023 and the impugned order of detention has

WP(Crl.) No. 42/2023

been passed in the same month. The contention of the petitioner in this

regard is, therefore, without any merit.

11) The other ground urged by the learned counsel for the petitioner is

that the contents of the daily diary reports are false and fictitious and the

same could not have been taken into account by the detaining authority. It

will not be open to this Court to go into the veracity of the information

contained in the daily diary reports. It is also not necessary that before

passing the order of detention, the detenue should have been booked in an

FIR. 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. The sufficiency and

veracity of the material that has been placed before the detaining authority

by the sponsoring agency, cannot be gone into in these proceedings.

12) That takes us to the contention of the petitioner that the police dossier

and grounds of detention are verbatim reproduction of each other. A perusal

of the grounds of detention would reveal that there is similarity between

language mentioned in the police dossier and the grounds of detention so far

as the same relates to narration of contents of daily diary reports. After

narrating the contents of the daily diary reports, the detaining authority has

clearly recorded that it is satisfied from the facts and circumstances that the

petitioner has been finding opportunities to instigate the local youth/families

of the killed terrorists to join militancy. It has also been recorded by the

detaining authority that it is satisfied that the activities of the petitioner are

highly prejudicial to the security of the State. Thus, it cannot be stated that

WP(Crl.) No. 42/2023

the detaining authority has passed the impugned order of detention in a

mechanical manner and that the grounds of detention are merely a replica of

the police dossier.

13) Lastly, it has been argued by the learned counsel for the petitioner that

the petitioner has not been provided whole of the material which formed

basis of the grounds of detention, nor the material was read over and

explained to him in Gojri, the language understood by him.

14) A perusal of the detention record shows that that the petitioner has

been provided copy of detention order (02 leaves), notice of detention (01

leaf), grounds of detention alongwith dossier and other related documents

(15 leaves) total (18 leaves) through Executing Officer, Inspector Karnail

Singh. The petitioner has executed a receipt in this regard and even

photograph of the petitioner receiving these documents is also available in

the detention record. Thus, it is clear that the petitioner has been provided all

the relevant material which formed basis of grounds of detention. The daily

diary reports form annexures to the police dossier, copy whereof has been

provided to the petitioner as is clear from the receipt executed by him. The

contention of the petitioner that he has not been provided the whole material

is, therefore, not borne out from the record.

15) The detention record further reveals that the contents of the

documents, which have been supplied to the petitioner, have been read over

and explained to him in Gojri language. This is clearly recorded in the

receipt of grounds of detention, which bears the signatures of the petitioner.

The detention record contains an affidavit of Inspector Karnail Singh,

WP(Crl.) No. 42/2023

wherein he has declared that the petitioner was briefed about the grounds of

detention in Gojri language, which he fully understood and that all the

documents were provided to him. In face of this material, contention of the

petitioner that grounds of detention were not read over to him in the

language, he understands, is without any substance.

16) For the foregoing reasons, I do not find any merit in this petition. The

same is dismissed accordingly.

(SANJAY DHAR) JUDGE

Jammu 13.10.2023 Karam Chand/Secy

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