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Judgment
Vinod Chatterji Koul, J
Challenge in this petition is thrown to the Order no.21/DMK/PSA of 2020 dated 26.07.2020, passed by District Magistrate, Kupwara, placing one,
Muhammad Aslam Beigh S/o Nazir Ahmad Beigh R/o Maidanpora, Lolab District Kupwara (for short “detenuâ€) under preventive detention so as
to prevent him from acting in any manner prejudicial to the security of the State and directing his lodgement in Central Jail, Jammu (Kot-bhalwal).
Respondents have filed Reply Affidavit, insisting therein that detenu is involved terrorist activities carried out by terrorists of Jash-e-Mohammad
(JeM) outfit in and around Kupwara area, besides he is abetting terrorist acts of JeM outfit and harbours terrorists at different locations and provides
aid and assistance to the said outfit on the dictates of terrorists, which is used for carrying attacks on security personnel in the valley, thus causing loss
of life and property, creating terror and fear in the hearts of general public and in this way aids as well as abets the menace of militancy in the State
more particularly in North Kashmir and thus helps those terrorists to flourish and carry out their nefarious activities in the valley.
I have heard learned counsel for parties and considered the matter.
Learned counsel for petitioner has contended that impugned order of detention is unconstitutional, illegal and bad in law inasmuch as detaining
authority has not followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution of India. It is
stated mentioned in the petition that “detainee has not been furnished the grounds of detention and other connected documents and same have been
furnished on 1-04-2020 when the impugned order supra mentioned was partially modifiedâ€.
The above contention is baseless and unfounded. The reason being that perusal of Acknowledgement of receipt of material, placed on record by
learned counsel for respondents, reveals that impugned order of detention, grounds of detention, corrigendum, notice to detenu, copy of dossier, copy
of FIR, copies of seizure/recovery memos, copies of statement of witnesses, translated copy of order of detention in Urdu version, translated copy of
grounds of detention in Urdu version, translated copy of notice to detenu in Urdu version and in total 20 leaves have been given to detenu.
In addition to above, petitioner has himself annexed with his writ petition copies of impugned order of detention, grounds of detention, and dossier.
It is also stated by counsel for petitioner that detaining authority has not assigned any compelling and cogent reason for passing order of detention
and that detaining authority has not specified the authority before whom the representation has to be made nor has detaining authority informed detenu
to make representation to him before the order could be approved/ confirmed by the Government.
This submission is misconceived, for, perusal of grounds of detention unequivocally reveals and portrays compelling and cogent reasons having been
given by detaining authority to pass order of detention. It is discernible from grounds of detention that detenu is a close associate and overground
worker of Jesh-e-Muhammad (JeM) outfit, providing aid and assistance to the said outfit and being hell bent upon to challenge the security of the State
by indulging in terrorist activities. It is mentioned in grounds of detention that on 18th January 2019, during Naka checking at Batergam Chowk, detenu
tried to bypass the Naka Point in order to conceal his presence, but his suspicious moment was detected by security forces and he was apprehended
on spot. On his personal search, a hand grenade was recovered from his possession. During questioning, detenu disclosed that he obtained hand
grenade from militants of JeM outfit and was directed to throw the grenade upon security forces/civilians in town Kupwara. In view of this, case FIR
no.06/2019 under Section 5/25, 4 Explosive Substance Act, 13, 18 Unlawful Activities Prevention Act was registered in police station Kupwara and
during investigation the detenu was arrested. Perusal of grounds of detention also reveal that detenu had filed a bail application and there had been
every likelihood that he may be given bail and if he is permitted to remain at large, he would continue to indulge in terrorist activities, which will prove
detrimental to the security of the State. In that view of matter, sufficient grounds have been given by detaining authority to place detenu under
preventive detention.
Another submission of counsel for petitioner is that subjective satisfaction has not been derived by detaining authority which is sine quo non for
passing the order of detention and that grounds of detention are formulated by SSP/SP concerned as the dossier submitted by SSP/SP is the ditto copy
of grounds of detention. Counsel for petitioner has also stated that impugned order of detention has not been approved by the Government and that
order of detention would remain in operation only for 12 days.
Perusal of record reveals that detention order has been approved by the Government within time. The detenu has also been informed to make
representation before the Government as well as detaining authority. In examining the question whether the ordinary laws of the land would have
sufficed, and whether recourse to preventive detention was unnecessary, it must be borne in mind that the compulsions of the primordial need to
maintain order in society without which the enjoyment of all rights, including right to personal liberty of citizens, would lose their meaning, provide
justification for laws of preventive detention. These laws posit that an individual’s conduct, prejudicial to maintenance of public order, security of
State, preservation of forest wealth, provides grounds for satisfaction for a reasonable assessment of possible future manifestations of similar
propensities on the part of the offender. The object of the law of preventive detention is not punitive, but is only preventive. In preventive detention no
offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability.
The essential concept of preventive detention is that detention of a person is not to punish him for something he has done, but to prevent him from
doing it. Its basis is the satisfaction of the Executive of a reasonable probability of detenu acting in a manner similar to his past acts, and preventing
him by detention from so doing. Preventive detention, an anticipatory measure, is resorted to when the executive is convinced that such detention is
necessary to prevent a person detained from acting in a manner prejudicial to certain objects which are specified by the law. In preventive detention
no offence is proved, and justification of such detention is suspicion or reasonable probability. The order of detention is based on a reasonable
prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances. The power of preventive detention is
exercised in reasonable anticipation. It may or may not relate to an offence. It does not overlap with the prosecution even if it relies on certain facts
for which prosecution may be, or may have been, launched. An order of preventive detention may be made before or during prosecution. It may be
made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of
preventive detention. An order of preventive detention is also not a bar to prosecution.
A six Judge Constitution Bench of the Supreme Court way back in the year 1951, in the case of The State of Bombay v. Atma Ram Shridhar
Vaidya, AIR 1951 SC 157, while looking into the scope subjective satisfaction arrived at by the detaining authority has held that the same is extremely
limited and that the Court, while examining the material, which is made basis of subjective satisfaction of detaining authority, would not act as a court
of appeal and find fault with satisfaction on the ground that on the basis of the material before detaining authority, another view was possible. Such
being the scope of enquiry in this field, and the contention of counsel for petitioner, therefore, cannot be accepted. While going through the grounds of
detention and dossier, I do not find that grounds of detention are ditto copy of dossier supplied by sponsoring authority. As is evident from the detention
record, the material has been supplied to detenu. and all this material was before detaining authority when it arrived at subjective satisfaction that the
activities of detenu are such, which would entail preventive detention under J&K Public Safety Act, 1978.
It is pertinent to mention here that the powers of preventive detention under the Act of 1978 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
commission of an offence or preventing 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 impending commission of a prejudicial act. The Act of 1978, therefore, requires that 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 public
order, security of State, or preservation of forest wealth, it is necessary so to do, make an order directing that such person be detained.
According to the wording of Section 8, 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 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 8 thus clearly shows that it is the satisfaction
of the State 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 section.
One person may think one way, another the other way. If, therefore, the grounds on which it is stated that 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 State Government, is ruled out by the wording of the section. It is not for the court to sit
in the place of the Government and try to determine if it would have come to the same conclusion as the Government. As has been generally
observed, this is a matter for 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 subjective decision of
the Government.
To sum up, it is relevant to refer to the observations of the Supreme Court while dealing with the question of preventive detention in the case of
Prakash Chandra Mohan v. Commissioner, 1986 Cr.L.J. 786. The Supreme Court observed that it must be remembered that observance of written
law about the procedural safeguards for protection of individual is normally the high duty of public official but in all circumstances not the highest. The
law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority.
For the reasons discussed above, the instant writ petition is without any merit and is, accordingly, dismissed with connected CM(s).