Saifullah vs State of Jammu & Kashmir and Others

S.K. Gupta, J.—The petitioner, Saifullah, son of Mohmmad Malik Khan, resident of Kadri Colony, 2 Lahore, Pakistan, came to be

arrested by Delhi Police on 12th August, 1998, while found roaming in Lajpat Nagar area. A pistol and eight live cartridges stood recovered from

his possession, in consequence of the recovery effected by the Police that became the basis of FIR No.674/98 for commission of offences under

sections 25, 54 and 59 of the Arms Act. The petitioner was sent up for trial before Metropolitan Magistrate, New Delhi, on the conclusion of the

investigation by the Police. Bail was granted to the petitioner during trial, but the petitioner jumped the bail and absconded. The petitioner was

again arrested on 8th January, 2000 by the Police and a case under FIR No.4/2000 was registered in Police Station, Arnia. The petitioner was

challaned before Judicial Magistrate, R.S. Pura on 2nd February, 2000, in which he was convicted and sentenced to undergo six months rigorous

imprisonment. On the conclusion of the trial, the Magistrate also directed the petitioner to be pushed back to the native country in Pakistan. It was

during the currency of this trial, the competent authority after having been satisfied regarding the activities of the detenue being prejudicial to the

security of the State, made an order for his detention on 06-12-2000 for a period of two years. The trial of the case, in which the petitioner had

remained absconded, further commenced before the Metropolitan Magistrate, Delhi, since the detenue had been shifted to Tihar Jail in New Delhi.

The detenue was convicted and sentenced to three years rigorous imprisonment and imposed a fine of Rs.2,000/- for offence under the Arms Act,

on the completion of the trial by the Court vide judgment dated 05-08-2002. The Detaining Authority (Government) issued an order for preventive

custody of the detenue for a period of 24 months effective from 15-12-2002 in order to regulate his continued presence, being a foreigner under

the provisions of Foreigners Act.

This detention order was passed by the Government vide Government Order No.Home(PBV)/2399 of 2002 dated 10-12-2002. Petitioner,

however, made an application to the Hon'ble Supreme Court of India for his release and push back, which came to be forwarded for necessary

action and disposal in accordance with law vide communication dated 24th November, 2003. This application, however, was treated as Habeas

Corpus Petition and came to be admitted on 24-12-2003 with a notice to the respondents for filing counter affidavit. Since there was no

representation for the detenue, Mr. J.P. Singh, Advocate, was requested to assist the Court as amicus curiae, vide order dated 22-04-2004.

It is pertinent to point out that in his application, the petitioner/detenue has not challenged his detention order on any grounds whatsoever. His

prayer is only confined for his release and push back. For facility of reference, the prayer part of the application of the petitioner/detenue is

reproduced, which reads as under:

It is therefore esteemably and respectfully prayed that this Hon'ble Court may graciously be pleased to pass an appropriate order for his release

and push back to Pakistan or till push back the appealant may be send to th! e forighner camp.

In controverting the contention of the petitioner, the respondents have filed a reply affidavit in giving the details of the events in seriatim and taken

a specific stand that the order of detention for a period of 24 months w.e.f. 15-12-2002 has been issued by the Government under the provisions

of the J&K Public Safety Act, 1978 (hereinafter for short referred to as the Act) in order to regulate his continued presence, being a foreigner

under the provisions of Foreigners Act

In the absence of any specific challenge to the detention order passed by the Government u/s 8 of the Act, it is clearly emanated that all the

procedural requirements under the Act have been complied with by the Detaining Authority at the time of passing the detention order. It is not in

dispute that the petitioner has been convicted and sentenced to three years rigorous imprisonment and imposed a fine of Rs.2,000/- by the

Metropolitan Magistrate, New Delhi vide order dated 05-08-2002. The detention order has been passed with a view to regulate the continued

presence of the petitioner, being a foreigner under the provisions of Foreigners Act. Since the validity of the detention order has not been

challenged, the Court cannot go into the question of mandatory observance of the procedural formalities required under the Act. It may further be

pointed out that even a solitary act can form the basis of an order of detention. In Debu Mahato Vs. The State of West Bengal, , the observation

made by the Apex Court, while dealing with the identical proposition, is excerpted below:

We must, of course, make it clear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching

a satisfaction that he might repeat such acts in future and in order to prevent him from doing so, it is necessary to detain him. The nature of the act

and the attendant circumstances may, in a given case be such as to reasonably justify an inference that! the person concerned, if not detained,

would be likely to indulge in commission of such acts in future. The order of detention is essentially a precautionary measure and it is based on a

reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past

conduct may consist of one single act of a series of acts. But whatever it be, it must be of such a nature that an inference can reasonably be drawn

from it that a person concerned would be likely to repeat such acts so as to warrant his detention Relying on the aforesaid observation again, the

Apex Court in David Patrick Ward and Another Vs. Union of India (UOI) and Others, , held as under:

Tested in the light of the above decisions, certainly, the acts in which the petitioners indulged would form the basis of detention. The detaining

authority can base its order of detention even on a solitary act provided that the conduct of the person concerned with the act in the circumstances

in which it was committed, is of such a nature as would enable the formation of requisite satisfaction that the person, if not prevented by an order of

detention, is likely to indulge in repetition of similar acts in future. That is certainly so in the present case, having regard to the various circumstances

from the beginning, viz. the concealment of the purpose of visit, the entry without permit in the prohibited area up to the time of arrest of the

petitioners. Therefore, the grounds of detention relating to what occurred on the night between January 30 and 31, 1992 sufficed for making the

detention orders under challenge. Debu Mahato and M. Mohamed Sulthan the decisions of this Court on which reliance is placed to support the

point under examination, indeed go against the point. Hence, the point cannot succeed.

As regards the prayer of the petitioner for his release and to be deported to Pakistan, it is not for the Court to say, which is a better course that

Either to detain petitioner by an order of preventive detention or to deport him to his country. If under the circumstances, the petitioner has been

arrested, convicted and sentenced to three years rigorous imprisonment by the Metropolitan Magistrate, Delhi vide order dated 05-08-2002 in the

aforesaid case, the authorities are not in favour of the deportation of the petitioner, and the order of detention has been passed with a view to

regulate his presence, being a foreigner under the provisions of Foreigners Act, I do not find fault with the authorities (Government).

For what has been stated and discussed above, I do not find any merit in this petition and the same is, accordingly, dismissed.