Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Tashi Rabstan, J.
Farooq Ahmad Bhat – Appellant
Versus
State of J&K and Others – Respondents
OWP No. 351 of 2018, MP No. 1 of 2018
Decided On : 07-09-2018
Writ petition filed by detenu challenging detention order passed under J&K Public Safety Act, 1978. Court held that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects which the law of preventive detention seeks to prescribe. Preventive detention is, thus, based on suspicion or anticipation and not on proof. The responsibility for security of the State, or maintenance of public order, or essential services and supplies rests on the Executive and it must, therefore, have the necessary power to order preventive detention. The subjective satisfaction of a detaining authority to detain a person or not is not open to objective assessment by a Court. A Court is not a proper forum to scrutinise 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. The Courts do not even go into the question whether the facts mentioned in the grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the Courts and that it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board.
Fact of the Case:
Detenu was detained under J&K Public Safety Act, 1978 for his alleged involvement in various terrorist and secessionist activities, aimed at seceding the State of Jammu and Kashmir from the union of India. He challenged the detention order on the grounds that it was arbitrary, mala fide, and violative of his fundamental rights.
Finding of the Court:
The Court held that the detention order was valid and constitutional. It held that preventive detention is a necessary measure to protect the security of the State and maintain public order. The Court also held that the detaining authority had sufficient grounds to believe that the detenu was involved in activities prejudicial to the security of the State and that his detention was necessary to prevent him from continuing such activities.
Issues: 1. Whether the detention order was arbitrary, mala fide, and violative of the detenu's fundamental rights? 2. Whether preventive detention is a necessary measure to protect the security of the State and maintain public order? 3. Whether the detaining authority had sufficient grounds to believe that the detenu was involved in activities prejudicial to the security of the State and that his detention was necessary to prevent him from continuing such activities?
Ratio Decidendi: 1. The Court held that the detention order was not arbitrary, mala fide, or violative of the detenu's fundamental rights. It held that the detaining authority had sufficient grounds to believe that the detenu was involved in activities prejudicial to the security of the State and that his detention was necessary to prevent him from continuing such activities. 2. The Court held that preventive detention is a necessary measure to protect the security of the State and maintain public order. It held that the power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. 3. The Court held that the detaining authority had sufficient grounds to believe that the detenu was involved in activities prejudicial to the security of the State and that his detention was necessary to prevent him from continuing such activities.
Final Decision: The Court dismissed the petition and upheld the detention order.
ORDER :
1. This writ petition under Article 226 read with Articles 14, 19, 21 and 22 of the Constitution of India, has been filed by one Farooq Ahmed Bhat son of Abdul Ahad Bhat resident of Zainadar Mohalla, Habba Kadal, Srinagar, seeking quashment of Detention Order no. 17-DMK/PSA of 2017 dated 14th November 2017, issued by District Magistrate, Kupwara (for brevity "Detaining Authority") placing Shri Masrat Alam Bhat son of Late Abdul Majeed Bhat resident of Zaindar Mohalla District Srinagar (for short "detenu") under preventive detention and directing his lodgement in Central Jail, Kotbhalwal, Jammu.
2. The case set up by petitioner is that petitioner's nephew (detenu herein) is a citizen of the State of Jammu and Kashmir and is entitled to protection under Article 21 and rights guaranteed by Part III of the Indian Constitution. It is maintained that this Court's intervention, to fashion appropriate reliefs to protect petitioner's inalienable right to liberty from the State's design to deprive him of the same interminably, by resort to preventive detention and flouting of judicial orders of release. It is averred that despite clear cut directions passed by this Court, detenu is not being released by respondents. Petitioner states that since each detention order that is quashed, is followed up with a fresh order without even waiting for his release, the remedy will have to be fashioned to prevent this gross abuse of executive power and as a sequel whereof, this Court is petitioned to fashion appropriate reliefs by exercise of its writ and analogous powers of direction to secure detenu's right to life and liberty.
3. Petitioner states in writ petition that detenu has since 1990, when he was barely 19, been continuously in detention till date except for two years, between 1991 to 1993, from February 1997 to September 1997 and from May 2000 to January 2001, and thereafter intermittently and that detenu is not under any legally valid life sentence imposed after trial and conviction by a competent court of law, yet by imposing order after order of preventive detention on similar, if not same grounds, in the face of order after order of writs of habeas corpus passed by this court, he is being forced to serve a virtual life sentence with no end in sight. The same would tantamount to deprivation of liberty without following constitutional imperatives. In 2012, when detention was challenged before the Supreme Court, the State declared that it was revoking detention, likely with a view to avoid judgment on merits, yet the Supreme Court though fit to impose a condition that he should be given a clear seven-day notice period before any future detention, after revocation of the one challenged before it in that case. Unheeding of the same, the same pattern of one detention after another is said to have been adopted. Between 2007 and 2013, petitioner has spent almost 25 years in custody of preventive detention. After the Supreme Court's order dated 22nd March 2013, he was subject to six orders of preventive detention; out of which five detention orders have been quashed by this Court. He has also secured four bail order since 2007, except the latest order of preventive detention dated 11th November 2017.
4. It is next assertion in writ petition that following substantial questions of law arise for consideration of this Court:
(a) Although preventive detention is not, per se, unconstitutional, is interminable use of powers of executive to keep a man in custody for nearly 30 years constitutionally permissible?
(b) Is a process whereby the State escapes putting its case to the test and yet manages by the use of executive power to deprive a man of his liberty, procedure established by law within the meaning of Article 21, and can it be considered reasonable, fair and just under Articles 14 and 19?
(c) Whether the repeated passing of detention orders that are in violation of Article 22 of the Constitution and other statutory safeguards a blatant abuse
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
