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Judgment
M A Chowdhary, J
1) Through the medium of this petition, petitioner seeks quashment of Order No.97/DM/DODA/PSA/2022 DATED 07-07-2022, issued by District Magistrate, Doda (for brevity “detaining authority”), whereby petitioner Saqib Hussain Mir S/O Mohabat Hussain Mir R/O Banola Tehsil Chiralla District Doda (for short “detenu”), has been ordered to be detained to prevent him from acting in any manner prejudicial to the security of the State and lodged in District Jail Bhaderwah.
2) The impugned order has been assailed by the detenu, inter alia, on the following grounds:-
(i) That the order of detention is totally illegal, arbitrary and contrary to the provisions of law and facts of the case;
(ii) That the Detaining Authority has not applied his mind while passing the order of detention;
(iii) That the grounds of detention appear to be a replica of the dossier which shows non application of mind on part of the Detaining Authority;
(iv) That the detaining authority has not recorded subjective satisfaction while directing detention of the petitioner in preventive custody; and
(v) The detenue has neither been communicated that he can make or file representation, to the detaining authority/Government, nor whole material relied upon by the detaining authority has been supplied to him.
3) The brief facts of the case are that:
(i) On 21st June, 2022, the detenu provoked the youth of a particular community to join jehad as his father, who had been booked by Peer Mitha Police in case FIR No.42/2019 under Sections 17, 18, 20, 38, 40 UA(P) Act, 7/25 Arms Act, has joined militancy and that he is also going to join jehad. This created insecurity in the minds of a particular community and other peace loving people of the area, as such, the detenu tried to harm the communal harmony, peace and tranquility of the area. The incident came to be reported vide DDR No.12 dated 21.06.2022 of Police Post Karara;
(ii) On 22.06.2022, again with the intention to create a hostile atmosphere against the country, detenu started instigating locals of the town to join Jehad, as his father, who has been arrested by the police while carrying Picka gun along with ammunition to carry forward subversive activities and he too will follow his father’s foot prints to join jehad, regarding which report vide DDR No.08 dated 22.06.2022 has been entered in Police Post Premnagar; and
(iii) On 24th June, 2022, again the detenue with an intention to create hostile atmoshphere against the country started persuading the locals of the town to join jehad and that he will contact with Khubaib a Pak handler to get his father freed. In this regard also a report vide DDR No.04 dated 24.06.2022 was recorded at Police Station Thathri.
4) On being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the averments made in the petition and submitted that the activities of the detenu are highly prejudicial to the security of the State. It is submitted that the detenue is a potential trouble maker and a strong motivator of jehad/terrorism and uses his good oratory skills to attract a large number of people especially in anti-national activities. It is contended that the detenue is a sympathizer of militants and his activities have the potential of creating serious threat to the security of the Union Territory. The respondents submit that to save the young generation of the area from joining the path of militancy, detention of the detenue becomes imperative, as such, after going through the dossier submitted by the Senior Superintendent of Police, Doda, the detaining authority, after recording subjective satisfaction, issued the impugned order of detention.
5) I have heard learned counsel for the parties and perused the record of the case.
6) Insofar as the plea raised by the detenue that the material relied upon by the detaining authority has not been supplied to him is concerned, the respondents disputed the same by asserting that the entire material like detention order, dossier of detention, grounds of detention and copies of FIR and other relevant documents have been handed over to the detenue. Execution Report, forming part of the detention record, reveals that the detenu has been provided with grounds of detention (03) leaves, PSA warrant (01) leaf, dossier along with letter of SSP, Doda
(5) leaves, Copies of FIRs, statement and other documents (03) leaves. The execution report also shows that the grounds of detention have been read over and explained to him in Urdu/Kashmiri language and that the detenu has been informed that he may make representation to the Government/Detaining Authority against his detention, if so desires. The execution report bears the signatures of the detenu. Therefore, on the face of execution report, which bears signatures of the detenu, it does not lie in the mouth of the detenu to say that he has not been supplied the material that has been relied upon by the detaining authority while issuing detention order or that he has not been informed about his right to make representation before the Government/Detaining Authority.
7) The grounds of detention clearly prove that the detenue was persuading the local youth to join the path of militancy and in order to provoke the local youth he was holding meetings to instigate them to join the militancy, in the name of jehad. Keeping in view the activities of the detenue, the Detaining Authority after due application of mind, by arriving at subjective satisfaction issued the order of detention, which cannot be found fault with. It is settled proposition of law that this Court while exercising jurisdiction under Article 226 of the Constitution has a limited scope to scrutinize whether detention order has been passed on the material placed before it, and it cannot go further and examine the sufficiency of material. This Court does not sit in appeal over the decision of the Detaining Authority and cannot substitute its opinion over that of detaining authority when the grounds of detention are precise, pertinent, proximate and relevant as laid down by the Apex Court in case titled State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35.
8) The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. The order of preventive detention may be made before or during prosecution and the pendency of the prosecution is not a bar to an order of preventive detention and is also not a bar to prosecution. The power of preventive detention is different from punitive detention. In a prosecution, the accused is sought to be punished for his past acts, however, in preventive detention the past act is merely a material for drawing inference about future conduct of the detenue. In the present case, the Detaining Authority has applied its mind by going through all the material provided to it by the police and accordingly, arrived at subjective satisfaction that the activities of the detenue were prejudicial to the interest of the State and issued the order of detention, which cannot be found fault with. Since the activities of the detenue were directed against the object mentioned in the Act and the Detaining Authority has arrived at subjective satisfaction that it was necessary to prevent the detenue from acting in such manner and consequently, order of detention came to be issued. Thus, it clearly shows that it is satisfaction of the Government on the point, which alone is necessary to be established, has been observed in compliance.
Learned counsel for the petitioner has submitted that the grounds of detention are verbatim of the dossier. It has already been discussed in the preceding paragraphs that this Court while examining the material which is made basis of subjective satisfaction of the Detaining Authority, would not act as a court of appeal and find fault with satisfaction arrived at by the detaining authority on the basis of the material before it. Such is the limited scope of enquiry in this aspect. However, in the present case, the grounds of detention are not a replica of the dossier.
The grounds of detention were well explained to the detenue in a language, which he fully understood, as is evident from the execution report, where the detenue is a signatory to the same. He was also provided with all the material, which forms basis for his preventive detention. Moreover, the detenu was well informed that he can make representation to the government as well as to the Detaining Authority against his detention, if he so desire. The execution report further reveals that the grounds of detention were read over to the detenue in English and explained to him in Urdu/Kashmiri language, which he fully understood and in lieu of which his signatures have been obtained on the execution report and no grouse was ever raised by the petitioner that the documents were never read over and explained to him in the language which he understands.
Liberty of an individual has to be curtailed, within reasonable bounds, for the good of the society at large. The framers of the Constitution were conscious of the practical need of preventive detention with a view to strike a just and delicate balance between need and necessity to preserve individual liberty on one hand, and security of the country as well as the interest of society on the other hand. Security of State, maintenance of public order, prevention of drug trafficking and other criminal activities demand effective safeguards in the larger interest of the sustenance of a peaceful and democratic way of life.
The aim of the preventive detention is not to punish a person for having done something but to intercept and prevent him from doing so. Hon’ble the Supreme Court in the case of Naresh Kumar Goyal v. Union of India and others, (2005) 8 SCC 276 and Union of India and another v. Dimple Happy Dhakad, AIR 2019 SC 3428 has held that “an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent anti-social and subversive elements from imperiling welfare of the country or security of the nation from disturbing public tranquility or from indulging in illegal activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.”
The law of preventive detention has direct bearing on the subjective satisfaction of the Detaining Authority. The subjective satisfaction of a Detaining Authority, whether to detain a person or not, is not open to the objective assessment by a Court. The Court while exercising power under Article 226 is not to act as an appellate forum to scrutinize the merits of the administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not.
It is apt to mention that our Constitution undoubtedly guarantees various freedoms and personal liberty to citizens in our Republic, however, such freedoms guaranteed by the Constitutional mandate are not meant to be abused and misused so as to endanger and threaten the very foundation of our society. The larger interests of our nation as a whole and the cause of preserving for every person the guaranteed freedoms demands reasonable restrictions on the prejudicial activities of individuals who jeopardize the rightful freedoms of the rest of the society. The main object of preventive detention is the security of the State, maintenance of public order and of supplies and services essential to the community. Thus, detention order, which has been issued by the detaining authority after arriving at subjective satisfaction, does not suffer from any legal infirmity as the grounds of detention are definite, proximate and free from any ambiguity. Furthermore, the detenue was duly informed of what weighed with the detaining authority while passing the order of detention. The Detaining Authority has recorded its subjective satisfaction after considering all the material available, thus, none of the constitutional or statutory provision has been violated.
The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing the trial on a criminal charge and is temporarily deprived of his personal liberty because of the criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case the prosecution fails to bring home his guilt. Where such an accused is convicted of offence, he still has satisfaction of having been given the adequate opportunity to contest the charge and also adduce the evidence in his defence.
The incorporation of Article 22 in the Constitution left room for detention of person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent Court. Its aim and object are to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case, it would be dangerous for the people at large, to wait and watch, by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing the general public to risk, causing colossal damage to life and property. It is for that reason necessary to take preventive measures and subsequently, prevent the person bent upon to perpetuate mischief from translating his ideas into actions. Therefore, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of individual must give way to the larger interest of the nation. I am fortified by the observations made by the Hon’ble Supreme Court in Sunil Fulchand v. Union of India (2003) 3 SCC 409.
Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the framers of the Constitution included the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.
Hon’ble the Supreme Court in the case of Mohd. Subrati alias Mohd. Karim v. State of West Bengal (1973)3 SCC 250, has held as under:-
“7.No doubt, the right to personal liberty of an individual is jealously protected by our Constitution but this liberty is not absolute and is not to be understood to amount to licence to indulge in activities which wrongfully and unjustly deprive the community or the society of essential services and supplies. The right of the society as a whole is, from its very nature, of much greater importance than that of an individual. In case of conflict between the two rights, the individual’s right is subjected by our Constitution to reasonable restrictions in the larger interest of the society.”
19 Viewed thus, impugned order of detention does not call for any interference by this Court. The petition lacks merit and is dismissed, as such.
The detention record be returned to learned counsel for the respondents.