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Judgment
Sindhu Sharma, J
The detenu has assailed Detention Order No. 03/PSA of 2024 dated 17.07.2024 passed by the District Magistrate, Ramban, vide which, the detenu namely Ghulam Nabi Chandail, has been detained under Section 8(a) of the J&K Public Safety Act, 1978 to prevent him from acting in any manner prejudicial to the maintenance of public order.
The order of detention has been assailed by the detenu on the grounds that; (i) the detention order has been passed mechanically by the Detaining Authority without any application of mind; (ii) the order of detention and grounds of detention have not been provided to the detenu while passing the order of detention by the Detaining Authority; (iii) the detention of the petitioner has been ordered in sheer violation of provisions of Public Safety Act and respondent No. 2 has not complied the provisions of the Act while passing the order of detention; (iv) all the relevant material relied upon by the Detaining Authority while passing the order of detention has not been furnished to the detenu; (v) the detenu was not informed of his right to make representation against the detention order to the Government or to the Detaining Authority, as such, the detention order is required to be set aside.
Mr. Bhanu Jasrotia, learned Government Advocate appearing on behalf of the respondents has filed the counter affidavit as well as produced the detention record. It is submitted by him that the District Magistrate Ramban has passed the detention order under the provisions of Section 8 of the J&K Public Safety Act, 1978 on the basis of the record submitted by the Senior Superintendent of Police, Ramban. The Detaining Authority after carefully examining the case and also after deriving its subjective satisfaction, found it imperative and necessary to detain the detenu. It is also stated that the detention order was executed by Executing Officer and all the material relied upon by the Detaining Authority were provided to him. The contents of the same were read over and explained to the detenu in the language which he fully understood. He was also informed of his right to make representation. It is also stated that the Advisory Board has examined the case of the detenu and found sufficient grounds for upholding the order of detention.
Heard learned counsel for the parties and perused the record also.
The detenu was detained vide order dated 17.07.2024 passed by the District Magistrate, Ramban. As per the grounds of detention, the detenu was detained keeping in view his activities, as he was found to be an Over Ground Worker and his activities are suspicious into sensitive matters and there is a possibility that he may provide information regarding sensitive matter of J&K UT to ANEs. The activities of the detenu are very harmful and highly prejudicial and he may motivate the youths to join Jihad, therefore, to prevent him from indulging in such activities, it was found imperative to detain the detenu under the relevant provisions of the Public Safety Act.
The detenu has submitted that the material has not been provided to him violating the constitutional and statutory procedural safeguard. As per the execution report, the detenu has been provided all the material. Grounds of detention have been explained to him in the language which he has fully understood and he has affixed his signatures on execution report and receipt of grounds of detention. The contention of the detenu that the material has not been provided to him is misconceived.
Perusal of the detention record reveals that in the execution report, which is placed on record, the Executing Officer-ASI Nasir Khan PID of P/s Gool had executed the warrant, the detenu was provided copy of the notice, detention order and grounds of detention along with dossier and other relevant material. The contents of warrant & grounds of detention, dossier and notice were read over and explained to the detenu in Urdu/Kashmiri language which he fully understood. This apart, he was also informed of his right to make a representation to the Detaining Authority or to the Government against the order of detention.
It is well settled that, in case, the detenu has been detained under the preventive detention and the allegation as well as the material against the detenu relied upon by the Detaining Authority was sufficient to derive its subjective satisfaction that the detention of the detenu was imperative to prevent him from acting in any manner which would cause threat to the ordinary citizen.
It is also submitted that the allegations against him by the Detaining Authority are vague and detenu has not been informed of his right to make the representation. These submissions are without any basis as perusal of the grounds of detention reveals compelling and cogent reasons for passing the order of detention. The detenu was informed of his right to make a representation to the Detaining Authority as well as the Government but no such representation has been found on record.
Preventive detention has been held to be permissible under the Constitution for detaining a person in accordance with the law made on the subject. Preventive detention is made with the aim and object to keep the society from activities of a person which are likely to deprive the large number of people from their personal liberty. The object is to curtail and prevent the liberty of an individual who involves in such activities is in the larger public interest.
A six Judge Constitution Bench of the Supreme Court way back in the year 1951, in the case of The State of Bombay v. Atma Ram Shridhar Vaidya, AIR 1951 SC 157, while looking into the scope subjective satisfaction arrived at by the detaining authority has held that the same is extremely limited and that the Court, while examining the material, which is made basis of subjective satisfaction of detaining authority, would not act as a court of appeal and find fault with satisfaction on the ground that on the basis of the material before detaining authority, another view was possible. Such being the scope of enquiry in this field, and the contention of counsel for petitioner, therefore, cannot be accepted. While going through the grounds of detention and dossier, it is clear that grounds of detention are not a verbatim copy of dossier supplied by sponsoring authority. As is evident from the detention record, the material has been supplied to detenu and all this material was before detaining authority when it arrived at subjective satisfaction that the activities of the detenu are such, which would entail the preventive detention under the Act.
Personal liberty is one of the most precious rights guaranteed under the Constitution and no one can be deprived of his right to life and personal liberty except by procedure established by law. Article 22(5), however, provides detention of person without formal charge, trial and without person being held guilty of an offence. The only objective is to prevent a person from creating mischief and to protect the society.
In “Haradhan Saha V. State of West Bengal”, (1975) 3 SCC 198, Hon’ble the Supreme Court has held that there is no parallel between prosecution in a Court of law and a detention order under the Public Safety Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in the Act. The relevant part of the judgment is reproduced as under:-
“The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent.”
Similarly, in “Secretary to Government, Public (Law and order) and another vs. Nabila and another”, (2015) 12 SCC 127, the Hon’ble Apex Court has held as under:-
“Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which can only be warranted by legal evidence. However, the detaining authority must keep in mind while passing the order of detention, the civil and constitutional right granted to every citizen by Article 21of the Constitution of India, inasmuch as no person shall be deprived of life and liberty except in accordance with the procedurestablished by law. The laws of Preventive Detention are to be strictly construed and the procedure provided must be meticulously followed”.
Similarly, in AIR 2019 SC 3428, “Union of India and another vs. Dimple Happy Dhakad”, it has been held by Hon’ble Apex Court that the Court must be conscious that the satisfaction of the Detaining Authority is “subjective” in nature and the Court cannot substitute its opinion for the subjective satisfaction of Detaining Authority and interfere with the order of detention, though the same is subject to review on the procedural safeguards.
The grounds of detention are definite, proximate and free from any ambiguity and the detenu was informed with sufficient clarity what weighed with the detaining authority while passing the order of detention. The procedural safeguards are complied with. The Detaining Authority arrived at the satisfaction after considering all the material placed before it and none of the constitutional and statutory rights of the detenu have been violated. The act of detenu is related to activities which have been projecting a serious threat to the people at large and will have serious ramification.
In view of the aforesaid, there is no merit in this petition and the same is, accordingly, dismissed.
Detention record be returned to learned counsel for the respondents by the Registry forthwith.