Ajaz Ahmad Bhat vs State Of J&K And Others

Sindhu Sharma, J

District Magistrate, Kupwara vide his detention order No. 12/DMK/PSA of 2019 dated 30.03.2019 has detained Ajaz Ahmad Bhat under Section 8 (1) (a) (i) read with clause (ii) of sub-Section (2) of Section 8 of the Public Safety Act to prevent him from acting in any manner prejudicial to the security of the State. This order of detention has been challenged by the detenu through his brother.

The order of detention has been assailed by the detenu on the grounds (i) the Detaining Authority has not followed the constitutional and statutory procedural safeguards as provided under Article-22(5) of the Constitution of India; (ii) the detenu has not been furnished all the material relied upon by the Detaining Authority and the grounds of detention and other material relied upon by the Detaining Authority has also not been provided to the detenu, while passing the order of detention, thus, prevented him from making an effective and purposeful representation; (iii) the detenu has not been informed, to which authority, the representation was to be filed and this omission had vitiated the process of detention; (iv) the allegations made in the grounds of detention are vague and non-existence and cannot form basis for passing the order of detention; (v) the Detaining Authority has failed to show any compelling reasons for passing the order of detention; (vi) the order of detention suffers from non-application of mind as the Detaining Authority has failed to show any cogent and compelling reason for passing the order of detention; & (vii) the detenu was arrested in FIR No. 90/2018 at Police Station, Kralgund for offence punishable under Sections 124-A RPC and 18, 39 ULA(P) Act wherein was granted to him on 18.03.2019. However, the respondents without challenging the order of bail has taken the detenu in a preventive detention on 30.03.2019.

Mr. Sajjad Ashraf, learned Government Advocate, has filed counter affidavit and has also produced the detention record. He submits that the detenu was validly and legally detained under Public Safety Act, 1978 and detention order dated 30.03.2019 has been issued by the District Magistrate, Kupwara after fulfilling all statutory requirements and complying with the constitutional guarantees. This order was extended vide Government order No. Home/PB-V/928 of 2020 dated 11.04.2020. It is also submitted that all the material relied upon, while passing the order of detention have been supplied to the. It is further contended that the case of the detenu was referred to the Advisory Board for its opinion and the Advisory Board after vide its opinion dated 25.04.2019 observed that there was sufficient cause for detention of the detenu. It is submitted that the Detaining Authority had passed the order of detention to prevent the detenu from acting anti-national activities as he was involved in terrorist activities in and around the state and aiding and abetting the terrorists activities carried out by the terrorists of HM outfit and also provides funding to the militant organizations and aids & abets the menace of militancy in the State, therefore, his detention was necessary.

The grounds of detention are precise, proximate and relevant and have been precisely stated. All the incidents referred to the material, the Detaining Authority had arrived at its subjective satisfaction.

Heard learned counsel for the parties and perused the record.

It is settled law that the preventive detention is precautionary power exercised in reasonable anticipation. Hon'ble the Supreme Court in Haradhan Saha and another V. State of West Bengal and others, (1975) 3 SCC 198 has held that:-

"32. The power of preventive detention is qualitatively different from punitive detention. 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 over lap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.

In Naresh Kumar Goyal vs. Union of India, (2005) 8 SCC 276, the Apex Court observed as under:-

"It is trite law 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 the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so."

Perusal of the record reveals that the detenu was supplied with all the material relied upon by the Detaining Authority. Perusal of the record reveals that the execution report of ASI Mohd. Sadiq states that the detention order (2 leaves), Notice regarding detention (1 leaf), grounds of detention (3 leaves), copy of dossier (4 leaves), copies of FIR Nos. 90/2018 (2 leaves) copy of statements of witness u/s 161 Cr.P.C. (4 leaves) arrest memo (2 leaves), total (18 leaves) were provided to the detenu at Central Jail, Jammu (Kot-Bhalwal) on 16.04.2019, and the detenu had also signed the same. Affidavit of the Executing Officer is also on record, showing that the Detaining Authority was provided with all the relevant material relied upon by the detenu while passing the order of detention. The detenu was also informed of his right to make representation against the detention as required in terms of Public Safety Act. Translated copies of the documents were also provided to the detenu and the detenu was also informed that he can make a representation to the Home Department or the Detaining Authority against the said detention order. However, the detenu had chosen not to move any representation against the same.

The next contention of the learned counsel for the detenu is that the impugned detention order is based on total non-application of mind as the same is also not supported by the record of the Detaining Authority and record referred to by the Detaining Authority is sufficient to derive satisfaction with regard to the detention of the detenu under the provisions of the said Act, thus, the order does not suffer from any non-application of mind.

It was next argued that the detenu was released on bail in the FIR (supra) and the Detaining Authority thereafter passed the order of detention. While considering the grounds of detention, it is settled precedent that the Courts cannot look into the subjective satisfaction arrived at by the Detaining Authority. The detaining authority was aware of the release of the detenu on bail and that he is likely to indulge in prejudicial activities which would be threat to integrity of the Country. The detaining authority thus after scrutinizing all the relevant material derived its subjective satisfaction and detained the detenu under the provisions of the Public Safety Act.

The grounds of detention having been proximate and free from ambiguity. The detenu was informed clearly of the weighed that the Detaining Authority while passing the order of detention. The detenu was also informed of his right to make an effective representation. Thus, the Detaining Authority has arrived at its subjective satisfaction after considering the material available on record before it.

In view of the aforesaid, none of the detenu's constitutional or statutory rights have been violated, as such, there is no merit in this petition and the same is, accordingly, dismissed.

Let the detention record be returned back to the counsel concerned by the Registry.