Mohammad Rafiq Shah vs Principal Secretary To Government And Others

Sindhu Sharma, J

The District Magistrate Ganderbal ordered the detention of Mohammad Rafiq Shah @ Owaisi S/o Mohammad Yasin Shah R/o Shuhama Nagbal, District Ganderbal vide his order No. 12-DMG-PSA-2022 dated 09.06.2022 under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, with a view to prevent him from acting in any manner prejudicial to the maintenance of security of the State. The detenu has assailed this order of detention through his brother namely Zubair Ahmed.

The Detaining Authority has passed the impugned order of detention without any application of mind on the allegations mentioned in the grounds of detention to justify illegal detention of detaining the detenu.

The detenu has challenged the impugned order of detention on the ground that that; (i) the offences attributed to the detenue is his involvement in the incidents of sloganeering and participation in public demonstrations, for which various criminal cases have already been registered. These allegations are yet to be put to trial and nothing has been proved till date against him, as such, the same cannot be the basis for passing the order of detention; (ii) the Detaining Authority has not shown awareness about the likelihood of the detenu being granted bail or any awareness about the fact that he has ever applied for grant of bail. The Detaining Authority has also not shown awareness about the fact that the FIRs were registered against unknown persons and as to how and when the name of the detenue was included in the FIR and the detention has been ordered on incidents which have occurred four years ago; (iii) the period from the date of arrest, illegal detention w.e.f. 01.06.2022 to the date of issuance of the order of detention, i.e., 09.06.2022 is unaccounted for and this information has been concealed by the respondents;

(iv) the detenu has not been provided all the relevant material, reports/dossiers on the basis of which the Detaining Authority has arrived at its subjective satisfaction about the need to arrest the detenu under the provisions of preventive detention; (v) the respondents have mentioned that the detenu can make a representation to them without mentioning the period, as such, denying him the right to make an effective representation; (vi) the grounds of detention do not disclose any eminent threat to the security of the State or even public order for which the ordinary law is not sufficient to deal; (vii) the Detaining Authority has failed to adhere to the constitutional and procedural safeguards; (viii) the order of detention is neither approved within the statutory period nor has any reference been made to the Advisory Board, thus, the order of detention is unsustainable and is required to be quashed.

Counter affidavit has been filed by respondent No. 2 i.e., District Magistrate Ganderbal on behalf of the respondents. Detention record has also been produced. In the affidavit, it is submitted that the detenu was detained by virtue of detention order dated 09.06.2022, in accordance with the provisions of Public Safety Act. The contention of the respondents is that the detenu has remained active in anti-national activities and actively takes part in implementing the agenda of radicalization, secessionist and separatist groups in District Ganderbal and is carrying out activities which are prejudicial to the integrity and sovereignty of the Country. The Detaining Authority with a view to prevent him from acting in any manner prejudicial to the security of the State has been compelled to pass the impugned order of detention. The respondents submit that they have followed all the constitutional and statutory safeguards while passing the impugned order of detention. The detenu has been furnished all the material which formed the basis of the detention order. The Detaining Authority had applied its mind while passing the order of detention.

Heard learned counsel for the parties and perused the record also.

The detenu was detained pursuant to order No. 12-DMG-PSA-2022 dated 09.06.2022 by the District Magistrate Ganderbal keeping in view the activities of the detenu which are prejudicial to the security of the State and the fact that he was involved in various secessionist activities supportive to the terrorists and their Over Ground Workers who have been carrying out disruptive/subversive activities in Ganderbal District and its adjoining areas and a serious threat and could cause further damage to the unity and sovereignty of India and UT of J&K. The Detaining Authority after considering the dossier submitted by the SSP Ganderbal and all the material alongwith the material on record found the activities of the detenu prejudicial to the security of the Country and considered it necessary to detain him under Public Safety Act.

The detention warrant was executed and the grounds of detention were read over and explained to the detenu along with the order dated 09.06.2022 and the entire material was furnished to the detenu. Further the case of the detenu was referred to the Advisory Board for its opinion under Section 15 of the Act and the Advisory Board after considering the material placed on record held that there is sufficient cause for detention of the detenu and the Government vide order No. Home/PB-V/1714 of 2022 dated 20.07.2022 has confirmed the order of detention.

It is well settled that personal liberty is one of the most precious rights provided under the Constitution of India and a person cannot be deprived of his personal liberty except by procedure established by law. Article 22(5) of the Constitution provides for detention of person without formal charge, trial or sentence from a competent Court under the enactment of preventive detention law. The object of the same is to protect the society from activities which would deprive a large number of people from their life and personal liberty.

The purpose of the preventive detention by detaining of a person is not to punish him for something he has done but to prevent him from doing a particular act which is prejudicial either to the security of the State or to the maintenance of the public order. 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.”

In Khudiram Das V. State of West Bengal and others, (1975) 2 SCR 832, It was held that:-

“………..The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.…………”

Similarly, in Secretary to Government, Public (Law and order) and another vs. Nabila and another, (2015) 12 SCC 127, it has been held that one act may not be sufficient to form the requisite satisfaction for detaining him. Relevant portion of the judgment is 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…”

Perusal of the record reveals that the detenu, at the time of detention as well as at the time of execution of the detention, was provided all the material relied upon by the Detaining Authority i.e., the detention order, copy of ground of detention, dossier and other material, and he has acknowledged the receipt of the same before PSI Ishfaq Yousuf of Police Station Ganderbal, who has read over the detention warrant, grounds of detention and explained the same to him in Urdu and Kashmiri languages. He was also informed the detenu that he can make a representation against his order of detention but the detenu has not make any representation as is borne out from the record. The Advisory Board has also reflected in their record that there is no representation filed by the detenu, therefore, the contention of the detenu that he was not supplied all the material is also not borne out from the record. The detention order does not suffer from any illegality.

The main contention raised by the detenu is that the impugned order of detention has been passed without any application of mind on the part of Detaining Authority. The detention is only on the basis of his involvement in incidents of sloganeering and participating in public demonstration for which cases have been registered. In this regard, perusal of the order and grounds of detention reveal that detention authority arrived at subjective satisfaction on the basis of material relied upon held that the detenu is involved in various activities that are serious threat to the national security. It is clearly discernible from the record that the Detaining Authority has detained the detenu, after recording subjective satisfaction, as the detenu was indulging in the activities which are anti-national and against the sovereignty of the Country and to prevent him from indulging in the same. The Detaining Authority has arrived at its subjective satisfaction after considering all the material. The decision of the Detaining Authority cannot be substituted by the Court while scrutinizing the detention order. Since preventive detention is a precautionary measure to protect the society from activities which may cause harm to their life and liberty. Preventive detention is a precautionary measure to protect the society from the activities that are likely to deprive a large number of people of their rights and protect them from damaging to their life and property.

All the material relied upon by the Detaining Authority while passing the order of detention has been furnished to the detenu. It was also contended that the detenu was not informed the time within which he had to make a representation to the Detaining Authority as well as the Government. This plea is without any merit as the detenu has not chosen to make a representation as no such averment is made nor representation is available on record.

The detention order does not suffer from any legal infirmity and grounds of detention are definite, proximate and free from any ambiguity and the detenu was duly informed of what weighed with the detaining authority while passing the order of detention. The Detaining Authority after considering the material placed before it had arrived at the requisite satisfaction that the detenu was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State, therefore, there is no infraction of constitutional and statutory rights of the detenue.

In view of the aforesaid, none of the constitutional or statutory provisions available to the detenue have been violated, thus, 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.