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2020 Supreme(J&K) 332
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Tashi Rabstan, J.
(Through Vide Conferencing from Jammu)
Mohd Abass Bhat
Versus
State of J&K and others
WP(Crl) No.234/2019
Decided on 10-09-2020
For the Petitioner:Mr Mukhtar A. Makroo, Advocate
For the Respondents: Mr S. H. Naqashbandi, AAG
Headnote:
Constitution of India, 1950 - Article 21 – Indian Penal Code,1860 - Criminal Procedure Code,1973 - Section 161 - ULA(P) Act - Sections 364, 302, 120-B RPC, 16, 18, 19, 20, 38, 39 - J&K Public Safety Act, 1978 - Section 8 - provides constitution of Advisory Board for the purposes Act of 1978 - Section 13 – FIR - Offence Of punishable - Contended that grounds of detention on basis whereof respondent has derived satisfaction are vague equivocal obscure indefinite not connected or not proximately with are mere assertions of detaining and no prudent man can make an effective representation against se allegations- Case mentioned in grounds of detention has no nexus with and has been fabricated by police in order to justify its illegal action of detaining - It is also contended that has been falsely and on mere apprehension and assumption without any cogent material implicated in aforesaid FIR and placed under preventive detention- allegations against do not disclose active part in conspiracy- Neither re is any specific averment in grounds of detention that was involved to that extent nor is re any disclosure of same - It is averred that no or material except dossier was considered by detaining authority while passing detention order and that detaining authority was to derive subjective satisfaction on basis of record of detention –Held, Courts ought to show greatest concern and solitude in upholding and safeguarding fundamental right of liberty of citizen however without forgetting historical background in which necessity—Unhappy necessity was felt by makers of Constitution in incorporating provisions of preventive detention in Constitution itself- While no doubt it is duty Court to safeguard against any encroachment on life and liberty of individuals Court in case of- Union of India and ingeminated by Supreme Court in Union of India and another v- Dimple 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 antisocial and subversive elements from welfare of country or security of nation or from disturbing public or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances Court is not a proper forum to merits of administrative decision to detain a person- Court cannot substitute its own satisfaction for that of authority concerned and decide whether satisfaction was reasonable or proper or whether in circumstances of matter person concerned should have been detained or not- It is often said and held that Courts do not even go into question whether facts mentioned in grounds of detention are correct or false- reason for rule is that to decide this evidence may have to be taken by courts and that is not policy of law of preventive detention- This matter lies within competence of Advisory Board- While saying so this Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise pertinent proximate and relevant Constitution undoubtedly guarantees various freedoms and personal liberty to all persons in our Republic- However it should be kept in mind by one and all that constitutional guarantee of such freedoms and liberty is not meant to be abused and misused so as to endanger and threaten very foundation of pattern of our free society in which guaranteed democratic freedom and personal liberty is designed to grow and flourish- larger interests of our multi-religious nation as a whole and cause of preserving and securing to every person guaranteed freedom peremptorily demand reasonable restrictions on prejudicial activities of individuals which undoubtedly jeopardize rightful freedoms of rest of society- Main object of Preventive Detention is security of a State maintenance of public order and of supplies and services essential to community demand effective safeguards in larger interest of sustenance of peaceful democratic way of life - Petition dismissed
JUDGMENT
District Magistrate, Kulgam – respondent no.2 here (for brevity “detaining authority”), has, by Order No.28/DMK/PSA/2019 dated 04.07.2019, placed Mohd Abass Bhat son of Late Ghulam Muhammad Bhat resident of Arreh District Kulgam, (for short “detenu”) under preventive detention, with a view to preventing him from acting in any manner prejudicial to the security of the State. It is this order, of which petitioner is aggrieved and throws challenge thereto on the grounds tailored in petition on hand.
2. The case set up in instant petition is that detenu was arrested on 24.12.2018 under illegal police custody in view of his alleged involvement in an FIR no.177/2018 under Sections 364, 302, 120-B RPC, 16, 18, 19, 20, 38, 39 ULA(P) Act, 7/27 Arms Act of police station Kulgam and thereafter placed him under preventive detention in terms of impugned detention order.
2.1. It is averred in petition that procedural safeguards under the Constitution of India and envisaged in terms of J&K Public Safety Act, have not been complied with by respondents while ordering detention of detenu.
2.2. It is contended that grounds of detention, on the basis whereof respondent no.2 has derived satisfaction are vague, equivocal, obscure, indefinite, not connected or not proximately with the detenu and are mere assertions of detaining and no prudent man can make an effective representation against these allegations. The case mentioned in grounds of detention has no nexus with detenu and has been fabricated by police in order to justify its illegal action of detaining the detenu.
2.3. It is also contended that detenu has been falsely and on mere apprehension and assumption, without any cogent material, implicated in aforesaid FIR and placed under preventive detention. The allegations against detenu do not disclose detenu’s active part in conspiracy. Neither there is any specific averment in grounds of detention that detenu was involved to that extent nor is there any disclosure of the same.
2.4. It is averred that no other material except dossier was considered by detaining authority while passing detention order and that detaining authority was to derive subjective satisfaction on the basis of record of detention.
2.5. It is next averred that respondents have not given copies of documents, i.e. order of detention, dossier, copy of FIR, recovery memo, statement under Section 161 Cr.P.C. and other documents referred to in grounds of detention and relied upon by detaining authority, enabling detenu to make an effective representation.
2.6. It is claimed by petitioner in petition that respondents have not informed detenu that he can make a representation against his order of detention to detaining authority or to government since it was incumbent upon them to inform detenu that he can make a representation to detaining authority or the Government against his order of detention and that detaining authority was duty bound to specify and ask authority to whom representation could be made and he having not done so, which amounts to violation of detenu’s rights.
2.7. It is maintained that detenu has a constitutional and statutory right to know grounds of detention and right to representation against grounds of detention and for that purpose detenu was entitled to complete translated copy of grounds of detention as well as material relied upon by detaining authority in grounds of detention that too in language understandable to him and those grounds were also required to be read over and explained to detenu in the language known and understandable to him as the script of grounds of detention are very cryptic and in technical legal language.
2.8. It is maintained that detenu, who was already in custody of police in respect of aforesaid FIR and there was no need to pass detention order against him as allegations are such that there was no immediate possibility of his being released on bail inasmuch as there was no compelling reasons given in grounds of detention for pa
