Bilal Ahmad Dar vs Union Territory Of J&K And Anr
2023 Latest Caselaw 1195 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                      WP(Crl) No. 462/2022

                                                   Reserved on: 25.08.2023
                                                Pronounced on: 19.09.2023

Bilal Ahmad Dar                                    .... Petitioner/Appellant(s)

                        Through:-    Mr. Wajid Haseeb, Advocate.

                  V/s

Union Territory of J&K and anr.                            .....Respondent(s)

                        Through:-    Mr. Faheem Shah, GA


CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                               JUDGMENT

01. In this petition, the detenu Bilal Ahmad Dar, seeks quashing of

detention Order No. DMB/PSA/2022/30 dated 27.06.2022. By virtue of

the impugned detention order, the District Magistrate, Budgam, in

exercise of powers under Section 8 of the J&K Public Safety Act, 1978,

had detained the detenu under the provisions of Public Safety Act to

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

State. The detenu has assailed this order of detention through his father-

Farooq Ahmad Dar.

02. The detenu, aggrieved of the detention order, has challenged its

legality and validity on the grounds that; (i) the allegations mentioned in

the grounds of detention have no nexus with the detenu and have been

fabricated to fortify his illegal detention; (ii) the allegations made in the

grounds of detention are vague, non-existent against which no

representation can be made; (iii) the Detaining Authority has not prepared

the grounds of detention itself, therefore, there is total non-application of

mind while passing the order of the detention; (iv) all the relevant material

relied upon by the Detaining Authority has not been provided to the

detenu enabling him to make an effective representation; (v) the detenu

was not informed of his right to make a representation to the Detaining

Authority or to the Government; (vi) the detention order has not been read

and explained to him in the language, he understand.

03. Mr. Faheem Shah, learned Government Advocate has filed the

counter affidavit and also produced the detention record. It is submitted

by him that the detenu was detained vide order dated 27.06.2022 passed

by the District Magistrate Budgam in accordance with the provisions of

Public Safety Act. The Detaining Authority after considering all the

relevant material and deriving its subjective satisfaction had passed the

order of detention. The grounds of detention, order of detention and also

all the material relied upon by the Detaining Authority has been furnished

to the detenu. The Detaining Authority had complied with all the statutory

requirement and constitutional guarantees as provided under the said Act.

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

also.

05. The Detaining Authority has detained the detenu vide impugned

order on the grounds that the detenu has been targeting innocent civilians

and recruiting youth in the ranks of terrorist organizations. Report

received from various agencies and blogs on social media platform

testifies that terrorist organizations is being controlled by Pakistani

intelligence ISI and on their advice and directions they are carrying out

terrorist activities like killings offshoot targets which includes street

vendors, labourers from outside J&K UT, who are working in orchards,

small shops and commercial establishments, Police men who are off duty

or are unarmed, so as to create an atmosphere of fear and intimidation in

the valley. The activities mentioned above are not only prejudicial to the

security of the State but are also aimed to recycle vicious terror

atmosphere and create an atmosphere conducive for secessionists and

terrorists to destabilize the administrative machinery of the UT and it hell-

bent to create conducive atmosphere for terrorists for carrying out

activities prejudicial to the maintenance of security of the State

06. The Detaining Authority, after considering the dossier

submitted by the SSP concerned and the fact that the activity of the detenu

was highly prejudicial to the security of the State, issued the detention

order. The detention order approved by the Government within the time.

The detenu was also informed of his right to make a representation before

the Government as well as the Detaining Authority.

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

under the Constitution and a person cannot be deprived of his personal

liberty except by procedure established by law. Article 22(5) of the

Constitution provides for detention of person without formal charge, trial

or sentence from a competent Court under the enactment of preventive

detention law. The object of the same is to protect the society from

activities which would deprive a large number of people from their life

and personal liberty.

08. It is well settled that the purpose of the preventive detention is

detaining of a person and not to punish him for something he has done but

to prevent him from doing a particular act which is prejudicial either to

the security of the State or to the maintenance of the public order. 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."

09. In Khudiram Das V. State of West Bengal and others,

reported as (1975) 2 SCR 832, It was held that:-

"...........The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof............."

10. Similarly, in Secretary to Government, Public (Law and

order) and another vs. Nabila and another, reported as (2015) 12 SCC

127, it has been held that one act may not be sufficient to form the

requisite satisfaction for detaining him. Relevant portion of the judgment

is 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..."

11. Perusal of the record reveals that the detenu, at the time of his

detention as well as at the time of execution of the detention order was

provided all the material relied upon by the Detaining Authority i.e., the

detention order, copy of ground of detention, dossier and other material,

which he acknowledged by signing the receipt. A. S. I. Bashir Ahmed of

DPL Budgam has provided all the relevant material to the detenu and read

over the same and explained to him in Urdu and Kashmiri language. He

also informed the detenu that he can make a representation against his

order of detention.

12. Learned counsel for the detenu submits that the detenu had filed

representation before the respondent No. 2 but the same has not been

considered till date. A copy of the representation is placed on record but it

does not reflect that it was served upon the respondent No. 2 in support of

his claim. The representation is also not on record, therefore, this

submission cannot be accepted.

13. The detention order does not suffer from any legal infirmity and

grounds of detention are definite, proximate and free from any ambiguity

and the detenu was duly informed of what weighed with the detaining

authority while passing the order of detention. The Detaining Authority

after considering the material placed before it had arrived at the requisite

satisfaction that the detenu 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, therefore, there is no infraction of constitutional

and statutory rights of the detenu. The Detaining Authority has arrived at

its subjective satisfaction after considering all the material.

14. The decision of the Detaining Authority cannot be substituted

by the Court while scrutinizing the detention order. Since preventive

detention is a precautionary measure to protect the society from activities

which may cause harm to their life and liberty. Preventive detention is a

precautionary measure to protect the society from the activities that are

likely to deprive a large number of people of their rights and protect them

from damaging to their life and property.

15. In view of the aforesaid, none of the constitutional or statutory

provisions available to the detenu have been violated, thus, there is no

merit in this petition and the same is, accordingly, dismissed.

16. Detention record be returned to learned counsel for the

respondents by the Registry forthwith.

(Sindhu Sharma) Judge SRINAGAR 19.09.2023 Ram Murti/PS

Whether the judgment is speaking : Yes Whether the judgment is reportable : Yes