Yawar Ahmad Shergojri vs Ut Of J&K &Ors

Sanjay Dhar, J

1) By the medium of this petition, veracity and validity of the order of detention bearing No.29/DMA/PSA/DET/2021 dated 12.07.2021, issued by District Magistrate, Anantnag (for brevity“Detaining Authority”), has been assailed. In terms of the impugned order, Shri Yawar Ahmad Shergojri son of Mohd. Yousuf Shergojri resident of Naina Batapora District Pulwama, has been placed under preventive detention and lodged in Central Jail, Jammu, Kotbhalwal.

2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the material forming basis of the impugned order of detention and translated version thereof has not been provided to the detenue. The petitioner has gone on to contend that he has not been informed as to before which authority he had to make a representation. It is also contended that the petitioner was already in custody when the impugned detention order of detention was passed and the detaining authority has not spelled out the compelling reasons for passing the impugned order.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for parties and I have also gone through detention record.

5) Though the petitioner has highlighted various grounds while seeking quashment of the impugned order but the main ground that has been argued during the course of arguments is that the detenue was already in custody in case FIR No.30/2021 for offence under Section 34 IPC and 7/25 Arms Act of P/S Srigufwara, at the time when impugned detention order was passed and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive detention laws.

6) It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. It is also settled position of law that a person involved in a criminal case can be detained under the provisions of preventive detention laws provided there are compelling circumstances for doing so. In my aforesaid view, I am supported by the judgments of the Supreme Court in the cases of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691, and T. P. Moideen Koya vs. Government of Kerala and ors. 2004 (8) SCC 106.

7) Adverting to the facts of the instant case, the detention record shows that the petitioner was arrested on 05.05.2021 in connection with FIR No.30/2021 for offence under Section 34 IPC and 7/25 Arms Act of Police Station, Srigufwara, and the impugned detention order has been passed on 12.07.2021. It has been contended by learned counsel for the petitioner that the impugned order of detention is based on solitary incident which is subject matter of aforesaid FIR. According to learned counsel, on the basis of a solitary incident and without there being any other material before the detaining authority to frame opinion that the activities of the petitioner were prejudicial to the security of the State, the impugned order of detention could not have been passed. In this regard, he has relied upon the judgments of the Supreme Court in the cases of Rameshwar Shaw v. District Magistrate, Burdwan and another, AIR 1964 SC 334, Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691 and the judgments of this Court in the cases of Mohammad Ashraf vs. State & Ors, 2010(3) JKJ 691, Bilal Ahmad Kaloo vs. State of J&K & anr., 2019 Supreme (J&K) 12 and Sajad Hussain Gull vs. UT of J&K and others (WP(Crl) No.238 of 2021 decided on 18.04.2022).

8) It is true that the grounds of detention refer only to a solitary incident, according to which, on 05.05.2021, arms and ammunition were recovered from the possession of the petitioner. However, it is equally true that the satisfaction of the detaining authority has to be subjective and the same is not justiciable. It is not open to the detenue to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by application of objective tests. It would also not be open to a detenue to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law. Similarly, the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of State of Bombay v. Atma Ram Sridhar, 1951 SCR 167.

9) In the instant case, a perusal of the detention record would show that the detaining authority has based its subjective satisfaction on the activity of the petitioner, as is reflected in FIR No.30/2021. The detaining authority has felt satisfied, on the basis of activities of the petitioner, which are subject matter of the aforesaid FIR, that he is a threat to the security of the state. This has compelled the detaining authority to pass the impugned order of detention. It is not open to this court to undertake a judicial review of the satisfaction recorded by the detaining authority in this regard even if satisfaction of the detaining authority is based upon a single incident in which the petitioner is alleged to be involved. In fact, it is not necessary that before a person is subjected to preventive detention, there should be an FIR pending against him. The involvement of a person in the activities mentioned in an FIR can become a basis for subjective satisfaction of the detaining authority, which, as already noted, cannot be reviewed judicially and it is not open to this Court to determine as to whether the reasons mentioned in the grounds of detention are sound enough to pass an order of detention. Therefore, the contention raised by the petitioner cannot be accepted. The ratio laid down in the judgments relied upon by learned counsel for the petitioner is not applicable to the instant case as in the said cases, the orders of detention were quashed on the grounds other than the one which has been urged in the instant case.

10) No other ground has been urged by the petitioner during the course of arguments.

11) For the afore-stated reasons, the petition is without any merit and the same is dismissed accordingly.

12) The record, as produced, be returned to the learned counsel for the respondents.