Jammu & Kashmir High Court

Ghulam Murtaza vs Ut Of J&K And Others on 14 October, 2024

Author: Sindhu Sharma

Bench: Sindhu Sharma

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT JAMMU

                                                        HCP No. 48/2024

                                            Reserved on:      05.09.2024
                                           Pronounced on:      14.10.2024


Ghulam Murtaza                                  .... Petitioner/Appellant(s)

                        Through:-   Mr. Sumir Pandita, Advocate with
                                    Mr. Imran Ahmed Rather, Advocate.

                  V/s

UT of J&K and others                                    .....Respondent(s)

                        Through:-   Mr. Rajesh Thapa, AAG.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                  JUDGMENT

01. The petitioner has challenged the legality and validity of detention

order No. PSA 13 of 2024, dated 16.03.2024, issued by the District

Magistrate, Jammu, placing the detenue-Ghulam Murtaza, S/o Riaz Ali,

R/o Asrarabad, Sidhra, District Jammu under detention with a view to

prevent him from acting any manner prejudicial to the maintenance of

public order. The order of detention has been challenged by the detenue

through his father-Rayaz Ahmed.

02. Learned counsel for the detenue submits that the detenue is a driver

by profession and was transporting animals from Jammu to Anantnag in

pursuance of duly granted permission vide order dated 09.03.2024. The

detenue was driving truck No. JK02-8K-4672 on 11.03.2024 and when he

reached near Sidhra, the police personnel asked him to stop the vehicle

and without any questions, the detenue and his vehicle were taken to the

Police Post Sidhra. He was later released, but the vehicle was seized by

the respondents. Subsequently, the detenue moved an application for

releasing of the vehicle before the Court of learned CJM, Jammu and the

vehicle of the detenue was directed to be released along with the cattle

vide order dated 15.03.2024. Thereafter, the detenue was detained without

informing him about any grounds of detention.

03. The detenue has challenged the impugned detention order on the

grounds that; (a) the detenue was neither informed about his right to make

a representation against his detention nor to he was informed as to whom

the representation should be made, thus, violating his constitutional rights

under Article 22(5); (b) The order of detention was without any

application of mind and was issued based only on the police dossier

without any subjective satisfaction by the Detaining Authority; (c) the

detenue has no criminal antecedents and is neither a habitual offender nor

engaged in any anti-social activities to justify his detention; (c) the

detenue is not conversant with English language but all the material

provided to him in the language which he does not understand and was

not explained to him nor any translated copy was provided to him

precluding him from making an effective representation; (d) the detention

order is based on allegations that do not justify the imposition of the

Public Safety Act (PSA), as the Detaining Authority did not explain how

the ordinary law was unable to deal with the activities of the detenue; and

(e) no subjective satisfaction was recorded by the Detaining Authority as

required under Section 8 of the J&K Public Safety Act, and the detention

violated the constitutional safeguards of Article 22(5).

04. The respondents have contested the petition by filing counter

affidavit and record has also been produced by them.

05. The respondents have submitted that due to the consistent

involvement of the detenue in various criminal activities, the detenue has

created a feeling of hatred in the local inhabitants and actions are likely to

disturb the peace of the area and are prejudicial to public order, making

his detention necessary. These cases registered against the detenue

between 2020 and 2024, along with other cases, justified the need for his

detention. The detenue was detained based on a dossier supplied by the

SSP, Jammu. The respondents submit that the order of detention was

passed after the Detaining Authority recorded its subjective satisfaction.

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

07. As per the record, it appears that there is a discrepancy in the names

related to the detenue. The petition states the name of the detenue as

Ghulam Murtaza, S/o Rayaz Ahmed, whereas, the detention record

identifies the detenue as Ghulam Murtaza Ali, S/o Riaz Ali.

08. The detention record reveals that as many as five FIRs have been

registered against the detenue at Police Station, Nagrota, i.e., (i) FIR No.

319/2020 u/s 188 IPC, 11/PC Act, (ii) FIR No. 399/2020 u/s 188/IPC, 11/PC

Act, (iii) FIR No. 64/2022 u/s 188/IPC, 11 PC Act, (iv) FIR No. 480/2023 us/

188/IPC, 11 PC Act and (v) FIR No. 80/2024 u/s 188/IPC, 11/PC Act.

09. The respondents submit that the detenue is a hardcore criminal,

habitually involved in criminal activities, which include smuggling of

bovines, which has resulted in disturbing the public order. The respondents

further submit that all statutory requirements and constitutional guarantees

have been strictly followed and complied with by the Detaining Authority.

The detenue was furnished with all relevant material and was informed of his

right to make a representation against his detention before the Detaining

Authority as well as the Government.

10. The detention of the detenue has been ordered on the basis of aforesaid

FIRs which have been registered from the year 2020 to 2024 for smuggling

of bovine animals from Jammu to Srinagar. It is well settled that the Court

cannot go behind the subjective satisfaction of the Detaining Authority but

can only see whether the procedural safeguards have been complied or not.

11. In 'Abdul Latif Abdul Wahab Sheikh vs. B.K. Jha and another',

1987 (2) SCC 22, the Hon'ble Apex Court has held as under:

"...We only desire to add that in a Habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and therefore, the detention should be upheld. The procedural requirements are the only safeguard available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority."

12. The first ground urged by the detenue that the Detaining Authority

did not inform him of his right to make a representation is incorrect, as

vide order dated 16.03.2024, the Detaining Authority informed the

detenue of his right to make a representation both to the Detaining

Authority and the Government. The detenue has been provided with all

the material, i.e., detention order (1 leaf), notice of detention (1 leaf),

grounds of detention (04 leaves), dossier of detention (11 leaves), copies

of FIR, statement of witnesses and other relevant documents (50 leaves)

(total 76 leaves), relied upon by the Detaining Authority while passing the

detention order.

13. It is submitted by the learned counsel for the detenue that the detenue

was neither conversant with the English language nor provided with a

translated copy of the order of detention, nor was the order explained to

him in a language he understands. The execution report reveals that the

detenue signed the execution report in English and nothing has been stated

regarding his educational qualification to support his case that he was not

able to understand the language, which leads to the conclusion that he has

sufficient knowledge of the language. The contents of the detention

warrant were explained to him in the language he understands.

14. Detention order does not suffer from any legal infirmity and grounds of

detention are sufficient to connect the detenu with the activities which are

rightly prejudicial to maintenance of public order. Preventive detention is

made on precautionary measure and its use not as a punishment but as a

precaution, as the activities of the detenue were likely to disturb the public

order and attempt was to create feeling of hatred and disharmony. The object

is to protect the society from activities that are likely to deprive a large

number of people of their rights and protect them and to stop them from

disturbing public order. It is, therefore, necessary to take preventive measure

in terms of Article-22(5) of the Constitution of India.

15. The detenu was informed of his right for making representation

against the detention order, if he so desired, to the Detaining Authority as

well as to the Government. On the basis of the FIR and the allegations

contained therein, satisfaction has been arrived at by the Detaining

Authority that in case the detenu was not detained, he may act in any

manner which is prejudicial to the maintenance of public order.

16. In 'Khudiram Das V. State of West Bengal and others', (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............."

17. The grounds of detention are definite, proximate and free from any

ambiguity as the Detaining Authority informed the detenu that he had the

right to make a representation in the language which he understands, thus,

with a view to prevent him from acting in any manner prejudicial to the

maintenance of public order, the Detaining Authority had detained the

detenu. The detenu was clearly informed of what actually weighed the

Detaining Authority while passing the order of detention. The Detaining

Authority had also informed the detenu that in order to stop him from

indulging in the above activities, his detention under provisions of PSA

was imperative as normal law was found insufficient to stop him from

indulging such activities which were prejudicial to the maintenance of

public order. Thus, none of the constitutional and statutory safeguards of