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2019 Supreme(J&K) 389
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sanjeev Kumar, J.
Ishfaq Ahmad Dar - Petitioners
Versus
State of J&K and others - Respondents
HCP No.66 of 2019
Decided On : 31-12-2019
Advocate Appeared:
For the Petitioner:Mr. M. Ashraf Wani, Advocate
For the Petitioner: Mr. Sheikh Feroz, Dy. AG
Headnote:
Constitution of India,1950 - Article 22(5) - Criminal Procedure Code, 1973 - J&K Public Safety Act, 1978 - Section 13 – Punishment – FIR - case set in this petition is that was arrested by police and falsely implicated in criminal offences registered in police station inasmuch as allegations against are completely false and fabricated - It contended that came be detained terms of impugned order counter affidavit has been filed by respondents vehemently resisting petition detention record has also been produced by counsel for respondents substantiate assertions made in reply affidavit - Having heard counsel for parties and perused detention record made available by counsel for respondents Court considered view that the challenge of petitioner must fail for reasons adumbrated hereinafter - counsel for petitioner contends that impugned order of detention is unconstitutional illegal and bad in law inasmuch as detaining authority has not followed the Constitutional and Statutory procedural safeguards as provided Article Constitution India –Held, Central Government or State Government and try to deter- mine if would have come to same conclusion as Central or State Government - As has been generally observed this a matter for the subjective decision of the Government and that cannot be substituted by an objective test in court of law - Such detention orders are passed on information and materials which may not be strictly admissible evidence Act in a court but which law taking into consideration needs and exigencies of administration has allowed be considered sufficient for subjective decision of Government position of law settled six Judge Constitution Bench way back scope looking into manner in which the subjective satisfaction is arrived at by detaining authority is extremely limited - This Court while examining the material which made basis of subjective satisfaction of detaining authority would not act as a court of appeal and find fault with the satisfaction on ground that on basis material before detaining authority another view was possible - Such being the scope of enquiry in this field Court afraid that contention of counsel for petitioner is not supported by any law and thus cannot be accepted - On Court also do not find grounds detention are replica of dossier supplied by sponsoring authority sponsoring authority not only supplied material viz. dossier containing gist of activities of but also supplied material in shape of FIRs and - All this material was before detaining authority when he arrived at subjective satisfaction that activities of detenu such which would entail preventive detention - Petition dismissed
JUDGEMENT :
1. Impugned in this petition is the Order no.33/DMB/PSA of 2018-19 dated 05.02.2019, passed by District Magistrate, Bandipora (for short “detaining authority”), placing one Ishfaq Ahmad Darson of Ab. Raheem Dar resident of Sadderkoot Bala Tehsil Hajin District Bandipora (for brevity “detenu”) under the preventive detention to prevent him from acting in any manner prejudicial to the maintenance of public order.
2. The case set up in this petition is that the detenu was arrested by police and falsely implicated in criminal offences registered in police station Bandipora inasmuch as the allegations levelled against detenu are completely false and fabricated. It is contended that detenu came to be detained in terms of impugned order of detention.
3. The counter affidavit has been filed by the respondents, vehemently resisting the petition. The detention record has also been produced by the learned counsel for the respondents to substantiate the assertions made in the reply affidavit.
4. Having heard the learned counsel for the parties and perused the detention record made available by the learned counsel for the respondents, I am of the considered view that the challenge of the petitioner must fail for the reasons adumbrated hereinafter.
5. Learned counsel for the petitioner contends that the impugned order of detention is unconstitutional, illegal and bad in law inasmuch as the detaining authority has not followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution of India. It is contended that the grounds of detention, served upon the detenu, are vague, uncertain, untrue, baseless and ambiguous, and no prudent man can make a representation against such allegations. Therefore, the passing of the detention on such grounds is unjustified and unreasonable. It is also stated that neither the copies of FIRs and other material have not been furnished to the detenu to enable him to make a representation. Learned counsel has further contended that the subjective satisfaction has not been derived by the detaining authority itself which is sine quo non for passing the order of detention as the grounds of detention have been formulated by Senior Superintendent of Police concerned inasmuch as the grounds of detention are ditto copy of the dossier. The detaining authority has only acted as a rubber stamp of sponsoring agency, which reflects non-application of mind as also abuse of authority vested in the Detaining Authority. It is also urged that the detaining authority has not informed the detenu before whom detenu has to make a representation nor has detenu been informed that he could also make a representation to detaining authority as well before the order of detention could be approved/ confirmed by the Government.
6. While opposing the writ petition, the learned counsel for the respondents has argued that the detention order does not suffer from any legal infirmity and that the grounds of detention sufficiently connect the detenu with the activities, which are highly prejudicial to the maintenance of the public order. He has also contended that the material relied upon by the detaining authority has been furnished to detenu, besides the grounds of detention along with the detention order was supplied to detenu against proper receipt.
7. Before adverting to the case in hand, it would be worthwhile to have quick look at the evaluation of law relating to liberty of citizens and its deprivation by the State. It is seen that with the evolution of the mankind from the primitive stage to the stage of the social welfare state, the administration of the criminal law assumed great importance. As long as the human beings were God-fearing and had faith that their actions were being watched by the Almighty, the need for the administration of the criminal justice was not felt. However, with the passage of time and the people becoming more materialistic, a section of the society comprising o
