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2020 Supreme(J&K) 336
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Tashi Rabstan, J.
(Through Video Conferencing from Jammu)
Riyaz Ahmad Bhat
Versus
State of J&K and another
WP(Crl) No. 597/2019
Decided on 30-09-2020
For the Petitioner:Mr. Wajid Haseeb, Advocate
For the Respondents: Mr. Mir Suhail, GA
Headnote:
Constitution of India, 1950 - Article 22 - Arms Act - Sections 307 RPC, 7/27 – Quash - FIR - Petition that procedural safeguards Constitution of India and envisaged in terms of J&K Public Safety Act have not been complied with by respondents while ordering detention - It is also contended that allegations as reflected in grounds of detention vague and don’t justify passing of detention order on basis of such allegations - It is further contended that detaining authority has mentioned two FIRs in grounds of detention however no specific allegation has been given regarding detune in cases mentioned in grounds of detention nor any details like month date or place occurrence has been given - It is also contended that there is no past alleged activity attributed to detune and there is no allegation of his involvement in cases mentioned in grounds of detention - Respondents without taking recourse to normal law have resorted to preventive detention which in given circumstances is unjustified and unreasonable – Held, Preventive detention is not invalid because it prescribes no objective standard for ordering preventive detention and leaves matter to subjective satisfaction of Executive - Reason for this view is that preventive detention is not punitive but preventive and is resorted to with view to prevent person from committing activities regarded as prejudicial to certain objects that law of preventive detention seeks to prescribe - Preventive detention is thus based on suspicion or anticipation and not on proof - responsibility for security of State or maintenance public order or essential services and supplies rests on Executive and it must therefore have necessary powers to order preventive detention - Having said that subjective satisfaction of a detaining authority to detain person or not open to objective assessment by Court - Court is not a proper forum to scrutinize merits of administrative decision to detain person - Court cannot substitute its own satisfaction for that of authority concerned and decide whether its 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 detention are precise pertinent proximate and relevant - It is apposite to mention that our 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 – Petition dismissed
JUDGMENT
District Magistrate, Pulwama–respondent no. 2 here (for brevity ¯detaining authority ), has, by Order no. 120/DMP/PSA/19 dated 16.10.2019, placed Riyaz Ahmad Bhat S/o Gh. Nabi Bhat R/o Karimabad, Tehsil and District Pulwama (for short ¯detenu ) under preventive detention, with a view to prevent 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 by the petitioner in instant petition is that detenu was arrested in the first week of October, detained illegally for several days and thereafter was implicated in FIR No. 22/2018 under Sections 307 RPC, 727 A. Act & 3/4 Exp. Subs Act and FIR No. 25/2018 under Sections 307 RPC, 7/27 Arms Act by the Police Station, Pulwama and thereafter was placed 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 the allegations as reflected in the grounds of detention are vague and don’t justify the passing of detention order on the basis of such allegations. It is further contended that the detaining authority has mentioned two FIRs in the grounds of detention, however, no specific allegation has been given regarding the detenu in the cases mentioned in grounds of detention nor any details like month, date or place of occurrence has been given. It is also contended that there is no past alleged activity attributed to the detenu and there is no allegation of his involvement in the cases mentioned in the grounds of detention. The respondents without taking recourse to normal law have resorted to preventive detention which in the given circumstances is unjustified and unreasonable.
2.4. It is also averred that the respondents have not provided copies of the documents referred to in the grounds of detention and relied upon by the detaining authority, enabling the detenu to make an effective representation.
2.5. It is claimed by petitioner in petition that detenu was not informed that he has a right to make a representation against his detention order to the detaining authority nor the respondents disclosed before whom the authority of Government he can make the representation, and neither the respondents disclosed him the time frame within which he can make the respective representation, which amounts to violation of detenu’s rights.
2.6. 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.
2.7. It is maintained that detenu, who was already in custody of police in respect of aforesaid FIRs 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 g
