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Judgment
Raina, J.—One cannot pretend to be oblivious to the unprecedented and unexceptional turbulence that came to prevail in the State of J and
K since the beginning of the current decade of this last, millennium. The mayhem created by the elements, local as also the mercenaries,
traumatised the society. The rule of law yielded to the gun and bullet. No one could stand up against the dictates of the militants and the terrorists
who held the society as hostage to subvert the social order and the security of the State. The aim and object of the militantsinstigated, incited,
abetted, trained and armed by the external elements, supported by the local blacksheephas been to cause secession of the State of J and K from
the Union of India. The ordinary laws failed in the above said situation to arrest the wothersening security scenario. In order to prevent the situation
from going completely out of hands and in order to prevent the militants, their harbourers and sypathisers from suberting the peace and security of
the State, the resort to preventive detention became necessary and unavoidable. It was in this backdrop that the District Magistrate Budgam
invoked his power under Section 8 (2) of the .TandK Public Safety Act, so as to prevent the respondent, herein from committing those acts that
were prejudicial to the public order and security of the State.
The preventive detention of the detenue came to be ordered for eighteen months on the grounds:
You are born and brought up in village Rawalpora Tehsil Beerwa. You have received education upto 9th and are presently working as Mason in
Srinagar. You are in active, dedicated and staunch member of JKLF, an outlawed organisation having its Hqrs. in POK/ PAK. The aim and object
of the organisation is to secede the State of J and K from Union of India through armed struggle. To achieve this goal the organisation has phased
its program in different stages, i.e. To Motivate Kashmiri Muslim Youth to join their organisation and to work for it, to send them to POK/PAK
for attaining armed training in handling of sophisticated arms/ammunition and explosive and to indulge in the arms/ammunition, provided to them, in
subversive and disruptive activities in the Valley to circulate and distribute the antinational literature among people, to kill the diginitaries and to
attack at security force with intention to kill them, to indulge in extortion of money from local civil population to set ablaze the civil and private
property with intention to liberate the State of J and K from Union of India by resorting to an armed struggle in the Valley.
That the JUM militant threatened you and you were forced to work with them. You denied to do so, by keeping in view the conditions of your
family member. To save your life from JUM militants, you joined the JKLF in 1991. You were sent to Muzzafferabad (POK) for attaining in
handling of sophisticated arms/amn. explosive in July1991. After completion of the said training you were provided with arms/amn. and were
directed to use the arms/amn. in indulging the terrorist and subversive activities. You were infiltrated to the valley in the year Sept. 1991. After
return from across you indulged in subversive and disruptive activities in the Valley for a period of sixmonths. After then you started your own
work of Masonry in the city and other places, till your apprehension.
From the above mentioned facts it is clear that your activities are highly judicial to the security of the State. No doubt you are presently lodged in
APLUBgm, but there is every likelihood that you may get released on bail which will defeat the purpose to deter you from continuing acts
prejudicial to the security of the State. Hence, you Gh. Mohiuddin Mir Sarvar s/o Ab. Samad Mir R/o Rawalpora, Tehsil Beerwa District
Budgam, aged 26 years, are hereby detained under section 8 as envisaged in J and K Public Safety Act.
This order of detention came to be challenged in Habeas Corpus No. 71 of 1997. The learned judge who disposed of this petition held that
sufficient reasons and sufficient material was not made available to the District Magistrate to clamp the preventive detention could not have been
made for the past detention on the detenue. The learned Judge felt that resort to preventive prejudicial activities of the detenue which were not at
all proximus in time to the passing of the detention order. The detention order thus got quashed with the direction to the appellant to compensate
the detenue in the amount of Rs. 10,000/.
, Aggrieved the State has come up in appeal to challenge the impugned order on the grounds interalia that the determination of the sufficiency of,
otherwise of the reasons or the grounds for preventive detention fell beyond the scope of judicial scrutiny. It is further projected that the order for
payment of compensation to the detenue is unwarranted on facts and nonsustainable on the ratio of the judgment in D.K.Basu's case.
It appears that the attention of the learned Judge got focused on the finding that the grounds of detention were too remote in time to the order of
detention and that the detaining authority had not stated as to why resort had been made to the preventive detention. It is thus unavoidable to refer
to the detention order which says that in order to prevent the detenue from acting in any manner prejudicial to the security of the State, it was
necessary to detain him for a period of eighteen months. It is thus rightly contended that the detaining authority has sufficiently disclosed in the order
the reasons for resort being made to the preventive detention.
6 The copy of the FIR No. 256/96, Police Station Beerwa, reveals that one RPG launcher was recovered on 5.8.1996 from the detenue. This
circumstance viewed in the perspective of the prevailing security scenario is sufficient to repel the respondent's contention that no ground,
proximate to the passing of the detention order, existed to clamp the preventive detention.
The consistent view held is that it is not for the court to consider the sufficiency of the reason which induced the authority to issue the order of
detention. The sufficiency and the matter on which the detaining authority based its satisfaction to order the detention cannot be the subject of
judicial scrutiny. The Apex Court has ruled far back in Atma Ram's case (AIR 1951 SC 160):
....the 'question of satisfaction, except on the grounds of malafides, cannot be challenged in a court..
Satisfaction required by the preventive detention law is the satisfaction of the detaining authority and not the satisfaction of the court. The courts
have no power to determine the sufficiency of the reasons which induced the authority to issue the order. It is the subjective satisfaction that
determines the concerned authorities approach.
The order of detention was issued, as noticed above, on 22nd of Oct. 1996. The detenue was on that date already in custody. The detention
order could thus at the best change his lodgment. The date of detention must be deemed, in this situation, to have synchornised with the date of the
order. It is thus that the period of eighteen months, for which the detention was ordered, has to be reckoned from the date of the order. This
period of eighteen months has since run out. No purpose, other than academic, is therefore going to be served by determining the correctness of
the reasons assigned by the learned Judge in quashing the detention order.
10 Now that the period for which the respondent could be detained under the order has since lapsed and the order has been quashed further
comment about the reasons on which the learned Judge has held the order to be invalid is not necessary or warranted.
It is to be noticed that the learned Judge while relying on the case D.K Basu Vs. State of West Bengal (AIR 1997 SC 610 ) came to direct
that as the detenue had been deprived of his personal liberty under the invalid order of detention so he be compensated. The ratio of D.K Basu's
case appears to be not applicable to the facts and the circumstances of the present case as it has nowhere been pleaded. Muchless shown, that the
detention order was induced by the malafides of the detaining authority. It is nobody's case that the detenue was subjected, after detention to
custodial violence at any point of time. The case for the detenue was that the detention order was illegal or improper on the ground of
nonapplication of mind by the detaining authority and on account of want of nexus between the alleged past activities of the detenue and the order
of detention. On logistic approach only has the detention order been found to be invalid. On realistic considerations, which are relevant, qua the
awarding of compensation, wrongful deprivation of personal liberty through the order of preventive detention, whereno malafides are even alleged,
payment of compensation is unwarranted on the ratio of D.K.Basu's case. On the facts and the circumstances of the case we find ourselves unable
to subscribe to the view that the detenue is entitled to be compensated for his preventive detention that has been quashed.
For the reasons aforesaid we allow the appeal and set aside the order of the learned Single Judge in so far as it directs the payment of
compensation in the amount of Rs. 10,000/ to the respondent, herein.
No order as to costs.