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Judgment
The facts culled from the instant petition are that on the basis of a Dossier placed by the SSP Awantipora vide his No. Consf/PSA/2018/339-42
dated 20th of January, 2018, before the District Magistrate, Pulwama, the District Magistrate Pulwama, by his order No. 24/DMP/PSA/18 dated 2nd
of February, 2018, directed that there are sufficient grounds to detain the petitioner, namely, Manzoor Ahmad Reshi S/o Gh. Ahmad Reshi R/o
Midoora, Tehsil Awantipora, District Pulwama, so as to prevent him from acting in any manner prejudicial to the security of the State and, therefore, it
is necessary to detain him under the provisions of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as “the Act of 1978â€).
Accordingly, the District Magistrate, in exercise of the powers conferred on him under clause (a) Section 8 of the Jammu and Kashmir Public Safety
Act, directed that the petitioner be detained and lodged in the District jail, Kathua.
Aggrieved by the said order of detention, the petitioner, through his mother, filed this petition before this Court and by an order dated 16th of
February, 2018, this Court, after taking a cue from the judgment of the Apex Court delivered in the case of “Deepak Bajaj v. State of Maharashtra
& Anr.â€, reported in “AIR 2009 SC 628†and the judgment rendered by the Division Bench of this Court in case titled “Suhail Ahmad Sheikh
v. State of JK & Ors.†(LAHC No. 96/2017), observed that keeping in view the peculiar facts and features of the case and the law laid down by the
Hon’ble Apex Court as well as the Division Bench of this Court in the judgments referred above, a case, at this stage, is made out for showing
indulgence and, accordingly, directed that the impugned order bearing No. 24/DMP/PSA/18 dated 2nd of February, 2018, shall remain in abeyance.Â
In his petition, the petitioner has pleaded that he was arrested by the police authorities of Police Station, Awantipora, in case FIR No. 8/2018,
registered against him for the commission of offences punishable under Sections 18, 38 and 39 of the ULA(P) Act. Subsequently, he applied for bail
before the Court of learned Principal Sessions Judge, Pulwama and, after calling the report from the concerned police authorities, the Court was
pleased to release him on bail by an order dated 8th of February, 2018. It is further stated that as soon as the petitioner was released on bail, he was
tortured by the police authorities, whereafter he was admitted in a Hospital for treatment from where he was discharged on 14th of February, 2018
and, at the moment, he is under treatment in Mohammadia Nursing Home, Pulwama. He has further contended that while he was undergoing
treatment in Mohammadia Nursing Home, he came to know that the District Magistrate, Pulwama, has passed the impugned order of detention
against him and directed his lodgment in District jail, Kathua. It is further contended that the order of detention has been passed on the basis of the
Dossier placed before the detaining authority, i.e. the District Magistrate, Pulwama, and no subjective satisfaction has been derived by the detaining
authority on the basis of any material placed before him by the police authorities concerned and, thus, the requirement of Section 8 of the Act of 1978
has not been followed by the District Magistrate in its letter and spirit. The petitioner has further stated that his case is squarely covered under the
wharf and woof of the guidelines laid down by the Apex court of the country in Deepak Bajaj’s case (supra). In the end, the petitioner has urged
that the impugned order of detention passed by the respondent No.2 and the grounds of detention be quashed at the pre-execution stage.
In the Counter affidavit, the respondents have vehemently resisted and controverted the petition of the petitioner, on the grounds, inter alia, that the
petitioner has met various elements having separatist ideology, who motivated the petitioner to involve more and more youth of the area in militant,
fundamentalist and extremist ideology. The petitioner agreed to become an OGW of the banned organization JeM. The organization is involved in
creating fear and chaos among the peace-loving people with the aim and object to secede the State of Jammu and Kashmir from the Union of India
and annex it with Pakistan. The petitioner met a foreign militant, namely, Ali Bhai, through a local Commander, namely, Noor Mohammad Tantray,
who motivated the petitioner to work for the said terrorist organization, which the petitioner agreed. After the killing of said Noor Mohammad Tantray,
the petitioner again met with the foreign militant and hatched a criminal conspiracy for carrying IED blast in the area of Awantipora. He was
apprehended and a huge cache of explosives was recovered/ seized from his home which led to the registration of FIR No. 8/2018 against him at
Police Station, Awantipora. Â
Heard and considered.
There appears to be no substance in the argument of the petitioner that the detaining authority did not apply its mind to the facts and circumstances
of the case before passing the order of detention against him. The detaining authority has, in unequivocal terms, stated that on the perusal of the
Dossier placed before him by the SSP, Awantipora, he is satisfied that there are sufficient grounds to detain the petitioner under the provisions of the
Act of 1978 so as to prevent him from acting in any manner which is prejudicial to the security of the State. The Dossier attached to the petition and
perused by the District Magistrate projects and portrays the activities carried by the petitioner which, on the face of them, are highly prejudicial to the
security of the State, the public order and tranquility. It is not necessary to go into the minutest details of the detention order when the Dossier, on the
face of it, discloses the grounds on the basis of which the order of detention has been passed. It is not that the detaining authority had to give an
account of each and every activity when the same is writ large in the Dossier and the other allied material placed before the detaining authority.
However, the District Magistrate, Pulwama, has spelt out the grounds of detention which formed the baseline of passing the order of detention and
these are reproduced below, verbatim et literatim:
“You Manzoor Ahmad Reshi S/o Late Ghulam Ahmad Reshi an ordinary resident of village Midoora Tehsil Awantipora District Pulwama
belonging to a Middle Class family. You obtained education upto 10thStandard from Government High School Midoora and subsequently upto 12th
class from Government Higher Secondary School Noorpora. Thereafter you joined a Private Engineering College at Srinagar and completed three
years diploma in Electronics in the year 2012. After the completion of the said diploma, you engaged yourself in Airtel Cellular Company as Engineer
at Awantipora and simultaneously completed BTech via distance mode through AMIE Srinagar.
You met with various elements having separatist ideology who made you religious fundamentalist/extremist and motivated you to involve more and
more youth of the area in the like ideology. With the passage of time, you agreed to become an OGW for the banned organization called JeM. The
said organization is involved in creating fear and chaos among the peace loving people, with the aim and objectives to secede the J&K State from the
Union of India and annex it with Pakistan. Ever since, the said banned organization came into being, hundreds of peace loving people including security
forces and police lost their lives in its dreaded attacks.
You and your friend namely, Mudasir Ahmad Khan S/o Farooq Ahmad Khan R/o Midoora District Pulwama met a foreign terrorist Commander of
banned terrorist organization JeM namely, Ali Bhai R/o Pakistan through a local Commander namely Noor MohamAmd Tantray (now neutralized).
He motivated you to work for the said terrorist organization which you agreed to. After killing of Noor Tantray in Pampore area, you again met with
the aforementioned foreign Terrorist Commander Ali Bhai and hatched a criminal conspiracy for carrying IED Blasts in the area of Awantipora, Tral
and Pampore thereby targeting the Police/Security forces. You coupled with your friend were asked to accomplish a task of procuring of remote
controls from Srinagar and dumping cum safe custody of explosive material in order to transmit it into IEDs and thereafter plant them with intent to
cause damages to the security forces.
Eventually on special information, you were apprehended and a huge cache of was recovered/seized at your instance from your home thereby
preventing the nefarious design. Regarding the incident Case FIR No. 08/2018 U/Ss 18, 38 and 39 ULA(P) Act was registered at P/S Awantipora
and investigation taken up.
The activities as projected in the forgoing Paras of the instant dossier run heavily against you and are highly prejudicial to the security of the State.
Being highly motivated to carry on the illegal design you are not likely to desist from anti national and anti-social activities. You are directly involved in
the above-mentioned cases and the normal laws are not sufficient to deter you from anti national activities. Therefore, in order to prevent you from
indulging in the activities, which are detrimental to security of the State, it is necessary to detain you by invoking the provisions of J&K Public Safety
Act, 1978.
The record relating to the detention of the petitioner gives a vivid account of the category (OGW for JeM) in which he falls. It also states that a huge
quantity of explosives was recovered from the possession of the petitioner. It gives a complete detail of his associates, the history of the petitioner as
also the comments and recommendations made by the SHO, Police Station, Awantipora.
Law is lucid and clear on the subject. In case “Union of India & Ors. v.Vidya Bagariaâ€, reported in “AIR 2004 Supreme Court 2220â€,
para 6 of which is germane to the decision of the instant petition, it has been held as follows:
“6. In Sayed Taher Bawamiya v. Joint Secretary to the Govt. ofIndia and Ors. (2000 (8) SCC 630), it was observed by this Court as follows:
This Court in Alka Subhash's case (supra) was also concerned with a matter where the detention order had not been served, but the High Court had
entertained the petition underArticle 226of the Constitution. This Court held that equitable jurisdiction underArticle 226andArticle 32which is
discretionary in nature would not be exercised in a case where the proposed detenu successfully evades the service of the order. The Court, however,
noted that the Courts have the necessary power in appropriate case to interfere with the detention order at the pre-execution stage but the scope for
interference is very limited. It was held that the Courts will interfere at the pre- execution stage with the detention orders only after they are prima
facie satisfied:
i. that the impugned order is not passed under the Act which it is purported to have been passed.
ii. that it is sought to be executed against a wrong person. iii. that it is passed for a wrong purpose.
iv. (iv)that it is passed on vague, extraneous and irrelevant grounds, or
v. that the authority which passed it had no authority to do so.
As we see it, the present case does not fall under any of the aforesaid five exceptions for the Court to interfere. It was contended that these
exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash's case (supra) shows that it is only in these five types of
instances that the Court may exercise its discretionary jurisdiction underArticle 226orArticle 32at the pre-execution stage. The appellant had sought to
contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for
the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order
has not yet been executed. The appellant does not have a copy on the same, and therefore, it is not open to the appellant to contend that the non-
existent order was passed on vague, extraneous or on irrelevant grounds.â€
Applying the ratio of the law laid down above to the case on hand, the petition of the petitioner does not fall within the scope of any of the (5)
categories enumerated above which would have given the Court the teeth to interfere with the order of detention at the pre-execution stage. The
impugned order has been passed under the Act; it is not sought to be executed against a wrong person; it has not been passed for a wrong purpose; it
is not the outcome of vague, extraneous and irrelevant grounds nor can it be said that the authority that passed the order of detention was incompetent
to do so, and to crown it all, the material that forms the bedrock of the order of detention is yet to be supplied to the petitioner. He cannot cry hoarse
at this stage by narrating that the order of detention has been passed on non-existent grounds when he has not even received the copy of the order as
yet.Â
Again, the Apex Court of the country in the case of “Union of India &Ors. v. Muneesh Sunejaâ€, reported in “(2001) 3 SCC 92â€, has held
as under at Paragraph No. 7:
“7. …… This Court has been categorical that in matters of predetention cases interference of court is not called for except in the circumstances
set forth by us earlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on
the ground of delay in passing the impugned order or delay in executing the said order. For mere delay either in passing the order or execution thereof
is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the
order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of
detention at a pre-detention stage. Therefore, following the decisions of this Court in Additional Secretary to the Government of India & Ors. v. Smt.
Alka Subhash Gadia & Anr., (supra) and Sayed Thaer Bawamiya v. Joint Secretary to the Government of India & Ors. (supra), we hold that the
order made by the High Court is bad in law and deserves to be set aside.â€
Applying the ratio of the law laid down above to the facts of the instant case, the petitioner was found involved in case FIR No. 8/2018 for the
commission of offences punishable under Sections 18, 38 and 39 of the ULA(P) on 17th of January, 2018, i.e. the date when the FIR was registered.
The order of detention has been passed on 2nd of February, 2018, i.e. after an approximate period of (15) days from the date of the registration of the
FIR against him. Therefore, it can, by no stretch of imagination, be said that the order of detention was passed on the basis of a stale incident. The
order of detention has been passed with utmost dispatch and it cannot lie in the mouth of the petitioner to state that the action of the respondents is a
belated one and, as such, the order of detention is liable to be quashed.
The Supreme Court, again, had an occasion to deal with the subject under consideration in the case of “Additional Secretary, Govt. of India v.
Alka SubashGadia.â€, reported in “1992 Supp (1) SCC 496â€, wherein at paragraph No.30, it has been laid down as under:
“30. ………To accept Shri Jain’s present contention would mean that the courts should disregard all these time-honoured and well-tested
judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly
pointed out by Shri Sibbal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the
stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since
such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to
entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as
has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution
stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under
the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong
purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The
refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other
ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of
the law in question.â€
The law laid down above is a sequel to the fact that if a detenue is permitted to challenge and seek a stay of the operation of the order before its
execution, the purpose of the order and the law under which it is made will get frustrated for the reason that such an order remains in operation for a
limited period only. It is only in exceptional cases that this power can be exercised by the Court which are detailed in the judgment cited above and as
is repeated and reiterated here, the case of the petitioner does not fall within those parameters.Â
In yet another judicial pronouncement delivered by the Apex Court of the country, in the case of “Union of India & Ors. v. Arvind Shergill &
Anr.’, reported in “2000 SC 2924â€, the Supreme Court held as under:
“4. The High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the detaining authority. Action by way of
preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of
suspicion exist warranting the restraint on a person. The language of Section 3clearly indicates that the responsibility for making a detention order
rests upon the detaining authority who alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the
court substitutes its judgment for the satisfaction of that authority on an investigation undertaken regarding sufficiency of the materials on which such
satisfaction was grounded. The court can only examine the 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 the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature
and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid. The concerned authorities have to take note of the various facts
including the fact that this was a solitary incident in the case of the detenu and that he had been granted bail earlier in respect of which the application
for cancellation of the same was made but was rejected by the court. In this case, there has been due application of mind by the concerned authority
to that aspect of the matter as we have indicated in the course of narration of facts. Therefore, the view taken by the High Court in the circumstances
of the case cannot be sustained.â€Â
In Deepak Bajaj’s case, on which the learned counsel for the petitioner has placed explicit reliance in carving out a case in his favour, the
order of the detention was quashed on the ground that the relevant material was not placed before the detaining authority which vitiates the detention
order. It is not the case herein this petition where the record gives a vivid account of the events and the documents as these relate to the activities of
the petitioner which form the baseline of passing the order of detention against the petitioner.
In view of the preceding analysis, the petition of the petitioner appears to be devoid of any merit. It entails dismissal and is, accordingly, dismissed.
The petitioner shall surrender before the authorities concerned for the execution of the order of detention bearing No.24/DMP/PSA/18 dated 2nd of
February, 2018. Interim directions, in force as on date, shall stand vacated.Â
The record, as produced by the learned Additional Advocate General, be returned to him with utmost dispatch.