Suraj Masih vs UT of J&K

M A Chowdhary, J

Petitioner namely Suraj Masih S/O Roshan Lal, R/O Village Hariachack, Tehsil Marheen, District Kathua (for short „the detenue‟) has

challenged the detention Order No.PSA/157 dated 20.05.2025 (impugned order), issued by respondent No.3, District Magistrate, Kathua (hereinafter to be referred as “the detaining authority”), whereby he has been placed under preventive detention, in order to prevent him from acting in any manner prejudicial to the maintenance of „public order‟.

Petitioner has raised many grounds to assail the impugned order. It is his contention that Detaining Authority though referred earlier cases from the years 2018, 2021 and 2024, as found in the Grounds of Detention, what was placed before him was only the copies of reports in those matters. Had the Authorities placed the outcome of such matters vis-à-vis acquittal of petitioner, in case FIR No.31/2018 u/s 48(a) of the Excise Act registered with Police Station, Rajbagh; in case FIR No.136/2021 vide judgment dated 14.12.2023 passed by learned Judicial Magistrate, Hiarnagar; and the petitioner was on bail in case FIR No.06/2024 and case FIR No. 202/2024; that vague entries in the shape of DDRs have been recorded at Police Station Rajbagh; that the criminal antecedents relied upon for the purpose of passing the order of detention do not have the direct nexus to immediately detain the petitioner; that the documents supplied to the petitioner, in Urdu were not explained to the petitioner in the language he understands; that he was prevented from making an effective and reasonable representation to the respondents in view of insufficient material provided to him; that he was not informed about his right to make representation to the detaining authority as well as government. It is also contended that the allegations attributed to the petitioner in the grounds of detention may be a „law and order‟ problem but do not qualify within the definition of „Public Order‟ under Section 8 of the J&K Public Safety Act 1978; that there is total non application of mind by the detaining authority as the petitioner stands already discharged and acquitted in the cases mentioned in the grounds of detention in some cases and is on bail in the remaining. Lastly, it is prayed that the petition be allowed and the impugned detention order be set aside.

The respondent No.3, in his counter affidavit, has controverted the averments made in the petition and submitted that the detenue is a hardcore criminal, desperate character and history sheeter and has been involved in the commission of organized crime for the past many years and was still continuing which is leading to eruption of terror among the general public, therefore, keeping in view the criminal/anti-social activities of the detenue, detention order was passed by the respondent no.3 as his remaining at large involves a greater risk to the maintenance of Public Order; that the detention warrant along with grounds of detention was properly executed through PSI Swaran Singh of P/S Rajbagh under proper acknowledgement of the detenue and he was fully made to understand in the language he understands; that the detenue was also informed that he can make representation to the Govt. as well as detaining authority against the detention order, if he so desires; lastly, it is prayed that the petition be dismissed and the impugned detention order be upheld as the same has strictly been passed as per the provisions of J&K Public Safety Act. The respondents have produced the detention records in order to support the contentions raised in the counter affidavit.

Heard learned counsel for the parties at length, perused the detention record and considered.

Insofar as the plea raised by the detenue that the material relied upon by the detaining authority has not been supplied to him is concerned, the respondents disputed the same by asserting that the entire material like detention order, dossier of detention, grounds of detention and copies of FIR and other relevant documents was supplied to the detenue. As per record, the detenue received copy of Warrant, Grounds of detention along with letter in English, Dossier & FIR, statements along with other documents related to detention (total 52 leaves) from executing officer PSI Swaran Singh of Incharge Police Post Marheen, P/S Rajbagh in presence of Assistant Superintendent District Jail, Udhampur, which were read over in English and explained to the detenue in Dogri/Hindi languages, which he fully understood and in lieu of which his signatures were obtained on the execution report. Additionally, there is an affidavit of the Executing Officer PSI Swaran Singh in the detention record, to the aforesaid extent.

The grounds of detention clearly show that the detenue was involved in cases with serious offences; that although the detenue has been bailed out by the court, the conditions of bail vis-à-vis he shall not repeat the same act in future during the period is brazenly violated with impunity and the detenue has discreetly carried out activities in contravention of the bail conditions; that there is every apprehension that the detenue would indulge in more such criminal activities and pose a grave threat to the maintenance of public order, therefore, he cannot be let off as scot-free; that four FIRs and three DDRs containing offences serious in nature are registered/recorded against the detenue; that the impugned detention order is passed by the detaining authority on the basis of dossier submitted by the SSP concerned wherein 04 FIRs and three DDRs registered against the detenue at Rajbagh and Kathua Police Stations, showing

the detenue‟s continuous involvement in criminal/anti-social activities without any respect of substantive law, thus, disturbing the peace and tranquility of the area and maintenance of law and order in District Kathua. Keeping in view the activities of the detenue, the Detaining Authority after due application of mind, by arriving at subjective satisfaction, issued the impugned order of detention, which cannot be found fault with.

It is settled proposition of law that this Court while exercising jurisdiction under Article 226 of the Constitution has a limited scope to scrutinize whether detention order has been passed on the material placed before it, and it cannot go further and examine the sufficiency of material. This Court does not sit in appeal over the decision of the Detaining Authority and cannot substitute its opinion over that of detaining authority when the grounds of detention are precise, pertinent, proximate and relevant [See State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35]. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. The order of preventive detention may be made before or during prosecution and the pendency of the prosecution is not a bar to an order of preventive detention and is also not a bar to prosecution. The power of preventive detention is different from punitive detention. In a prosecution, the accused is sought to be punished for his past acts, however, in preventive detention the past act is merely a material for drawing inference about future conduct of the detenue.

The aim of the preventive detention is not to punish a person for having done something but to intercept and prevent him from doing so. Hon‟ble the Supreme Court in the case of Naresh Kumar Goyal v. Union of India & Ors [(2005) 8 SCC 276] and Union of India & Anr v. Dimple Happy Dhakad [AIR 2019 SC 3428] 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 anti-social and subversive elements from imperiling welfare of the country or security of the nation from disturbing public tranquility or from indulging in illegal activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. 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.” The law of preventive detention has direct bearing on the subjective satisfaction of the Detaining Authority. The subjective satisfaction of a Detaining Authority, whether to detain a person or not, is not open to the objective assessment by a Court. The Court while exercising power under Article 226 is not to act as an appellate forum to scrutinize the merits of the administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not.

It is apt to mention that our Constitution undoubtedly guarantees various freedoms and personal liberty to citizens in our Republic, however, such freedoms guaranteed by the Constitutional mandate are not meant to be abused and misused so as to endanger and threaten the very foundation of our society. The larger interests of our nation as a whole and the cause of preserving for every person the guaranteed freedoms demands reasonable restrictions on the prejudicial activities of individuals who jeopardize the rightful freedoms of the rest of the society. The main object of preventive detention is the security of the State, maintenance of public order and of supplies and services essential to the community. Detention order, which has been issued by the detaining authority after arriving at subjective satisfaction, does not suffer from any legal infirmity as the grounds of detention are definite, proximate and free from any ambiguity. Furthermore, the detenue was duly informed of what weighed with the detaining authority while passing the order of detention. The Detaining Authority has recorded its subjective satisfaction after considering all the material available, thus, none of the constitutional or statutory provision has been violated.

So far as the contention of the detenue that he was prevented from making representation to the detaining authority as well as government as the documents supplied to the detenue were not read over and explained in the language he understands is concerned, the said contention has been effectively addressed by this court in the preceding paragraphs and need not be reiterated here again. Thus, contention of the detenue that he was unable to file representation for the aforesaid reason pales into insignificance.

The challenge to the detention order, in the considered opinion of the court by taking into account the above facts as emerged from the record, fails on all fours. The above conspectus of things would goad this court to the only inescapable conclusion that the respondents have rightly detained the detenue under the Public Safety Act, in view of serious allegations, of which he was charged.

The Detaining Authority has applied its mind by going through all the material, past conduct of the detenue against whom 04 FIRs stand registered and accordingly, arrived at subjective satisfaction that the activities of the detenue were prejudicial to the interest of the State and issued the order of detention, which cannot be found fault with. Since the activities of the detenue were directed against the object mentioned in the Act and the Detaining Authority has arrived at subjective satisfaction that it was necessary to prevent the detenue from acting in such manner and consequently, order of detention came to be issued. Thus, it clearly shows that it is satisfaction of the Government on the point, which alone is necessary to be established.

Liberty of an individual has to be curtailed, within reasonable bounds, for the good of the society at large. The framers of the Constitution were conscious of the practical need of preventive detention with a view to strike a just and delicate balance between need and necessity to preserve individual liberty on one hand, and security of the country as well as the interest of society on the other hand. Security of State, maintenance of public order, prevention of drug trafficking and other criminal activities demand effective safeguards in the larger interest of the sustenance of a peaceful and democratic way of life. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing the trial on a criminal charge and is temporarily deprived of his personal liberty because of the criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case the prosecution fails to bring home his guilt. Where such an accused is convicted of offence, he still has satisfaction of having been given the adequate opportunity to contest the charge and also adduce the evidence in his defence.

The incorporation of Article 22 in the Constitution left room for detention of person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent Court. Its aims and objects are to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case, it would be dangerous for the people at large, to wait and watch, by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing the general public to risk, causing colossal damage to life and property. It is for that reason necessary to take preventive measures and subsequently, prevent the person bent upon to perpetuate mischief from translating his ideas into actions. Therefore, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of individual must give way to the larger interest of the nation, as has been laid by the Hon’ble Supreme Court in Sunil Fulchand v. Union of India (2003) 3 SCC 409.

Hon‟ble the Supreme Court in the case of Mohd. Subrati alias Mohd. Karim v. State of West Bengal (1973)3 SCC 250, has held as under:-

“7. No doubt, the right to personal liberty of an individual is zealously protected by our Constitution but this liberty is not absolute and is not to be understood to amount to licence to indulge in activities which wrongfully and unjustly deprive the community or the society of essential services and supplies. The right of the society as a whole is, from its very nature, of much greater importance than that of an individual. In case of conflict between the two rights, the individual’s right is subjected by our Constitution to reasonable restrictions in the larger interest of the society.”

Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the framers of the Constitution included the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

Viewed thus, there is no ground to interfere in the impugned order of detention. The petition lacks merit and is dismissed, as such.

The detention record be returned to the respondents through their counsel.