1. Challenge in this petition has been thrown to a detention order No.07/DMB/PSA of 2022 dated 07.04.2022, passed by District Magistrate Bandipora-respondent No.2, vide which son of the petitioner namely Zahoor Ahmad Dar (the ‘detenue’) has been ordered to be detained and lodged in Central Jail, Kotbalwal, Jammu.
2. The petitioner has questioned the impugned detention order primarily on the ground that since detenue in all the FIRs mentioned in the impugned order has either been admitted to bail or acquitted, and the last alleged activity attributed to the detenue dates back to the year 2016, therefore, there is no proximity of detention of the detenue with the alleged apprehension of the respondents. According to the petitioner, the allegations attributed to the detenue in the grounds of detention are fabricated by the police in order to justify its illegal actions.
3. Besides, the petitioner has assailed the impugned detention order on the conventional grounds that the grounds of detention are vague, non-existent and no prudent man could make effective representation against such allegations; that the very basis of satisfaction recorded by the detaining authority being vague, the impugned order suffers from non-application of mind; that the grounds of detention is a replica of the police dossier; that relevant material, including copy of dossier, FIRs, statements of witnesses, seizure memo, arrest memos, bail orders, detention papers of PSA, order dated 08.05.2017, were not furnished to the detenue, so as to enable him to make an effective representation due to which constitutional rights guaranteed under Article 22(5) of the Constitution of India are infringed; that neither translated script of the detention order in Kashmiri or Urdu language was furnished to the detenue nor grounds of detention were read over and explained to the detenue in the language which he understands, so that he could make an effective representation; that detenue was neither provided an opportunity of making representation post-execution, nor he was informed of his right to make representation against the detention order and that representation filed by him was not accorded any consideration.
4. Countervailing the stand taken by the petitioner, the respondentdetaining authority in its counter affidavit is affront with the contention that no legal, fundamental or statutory right of the detenue has been infringed in the present case, as respondents have complied with all the statutory and constitutional provisions and followed the requisite formalities before issuance of the impugned detention order against the detenue.
5. It is the contention of the respondents that, by virtue of impugned order, detenue came to be detained under the provisions of the Jammu & Kashmir Public Safety Act, 1978 (‘PSA’, for short), after due compliance of the statutory requirements and constitutional guarantees and keeping in mind the object of lawful preventive detention, which is not punitive but preventive in nature. Grounds of detention, order of detention and entire material relied upon by the detaining authority was furnished to the detenue within the statutory period provided under Section 13 of PSA. In compliance to the order passed by the detaining authority, the warrant came to be executed by the concerned police on 11.04.2022 by virtue of which detenue was handed over to the Assistant Superintendent Central Jail Jammu Kotbalwal for lodgement. According to the respondents, the contents of the detention order/warrant as also the grounds of detention were explained to the detenue in the language fully understood by him and in lieu whereof the detenue subscribed his signature on the execution order. It is also contended that detenue was well informed about his right to make representation to the detaining authority or to the Government against his detention, however, he did not chose to do so. It is further contention of the respondents that detention case of the detenue was referred to the Advisory Board in terms of Section 15 of PSA for its opinion and the said Board, constituted under Section 14 of PSA considered the material placed before it and, in terms of Section 16 of PSA, the Board opined that there is sufficient cause of detention of the detenue, and it was only after the report/opinion of the Advisory Board that impugned detention order came to be confirmed by the Government vide order No. Home/PBV/1147 of 2022 dated 08.06.2022.
6. On the factual front, respondents are affront with the contention that detenue namely Zahoor Ahmad Dar is an anti-national element and is figuring adversely in the police records for his involvement in various anti-national activities. The activities of the detenue have emerged a threat to the security of State. The detenue has an incorrigible criminal bent of mind which is evident from his conduct over a period of time. He has been involved in series of criminal activities which have potential to disturb the public peace and tranquillity. He has been involved in instigating riots with his associates, which resulted in series of FIRs against him and his associates. According to the respondents, the detenue, however, remained un-deterred and un-dissuaded on each occasion and repeated the same activities time and again. His sole aim is to disturb the public order and tranquillity by engaging in activities, those are extremely hazardous to public order and safety. In the year 2011, the detenue developed relations with militant organizations and started working as over-ground worker (OGW) of a banned militant organization of LeT militant outfit, the banned organization of foreign/local militant floated by Pakistan with its base camp across the border.
7. Respondents would go on to reveal that during the unrest of 2016, the detenue played a crucial role in provoking, instigating and motivating the youth of his locality to enforce the bandh/strike calls given by various separatist organisations, which disturbed the peace and tranquillity of the area and society. According to the respondents, the detenue was a mastermind of exploiting the situation in Sumbal area. The respondents have given detail of six FIRs lodged against him in the past viz; 80/2011 u/s 341,336,427 RPC P/S Sumbal, 03/2021 u/s 7/25 I.A Act P/S Hajin, 231/2014 u/s 13 ULA Act, 05 Exp. Act P/ S Bijbehara, 81/2015 u/s 7/25 I.A Act P/S Rajbagn, 122/2016 u/s 148, 149, 336, 353, 152 RPC P/S Sumbal and 127/2016 u/s 148,149, 336, 307 RPC P/S Sumbal.
8. It is the further contention of respondents that detenue was previously detained under the provisions of PSA vide order No. 04/MB/PSA/2017 dated 08.05.2017 but was released on 02.11.2017 from the detention. However, according to the respondents, he did not desist from anti-national activities and repeatedly involved in similar activities. Accordingly, he was put on close surveillance and recently it came to surface through reliable sources/agencies that his activities had become prejudicial as he had again developed contacts with various secessionist/nefarious organizations to carry out antinational activities. According to the respondents, the activities of the detenue are not only prejudicial to the security of the State but are aimed to recycle vicious atmosphere to create the atmosphere conducive for secessionists and terrorists to destabilize the administrative machinery.
9. It has been pleaded that the detenue after his release from previous detention, did not shun the path of violence and disturbing the peaceful atmosphere of the society and the ordinary law of the land did not seem sufficient to deter him from his anti-national activities. Therefore, taking the wholesome view of the likely impact of his anti-national activities, the detaining authority deemed it necessary and imperative to invoke the relevant provisions of PSA and detain him in order to prevent him in indulging in antinational activities. It is also contended by the respondents that one of the representations received from the nephew of the detenue namely Khursheed Ahmad Khan on 12.07.2022 could not be acted upon or considered by the detaining authority as it was preferred after the prescribed time. It has thus, been prayed by the respondents that the impugned detention order has been passed against the detenue by the detaining authority only after attaining subjective satisfaction of the facts and circumstances attending the present case and after perusal of the dossier furnished by the concerned police station, which was duly supported by the relevant material and strictly in conformity with the law and the detaining authority derived satisfaction that the preventive detention of the detenue was of utmost importance.
10. Having heard rival contentions of the parties, I have given my thoughtful consideration to the facts and circumstances attending the case as also the legal position governing the field.
11. While learned counsel for the parties have reiterated their respective pleadings in arguments, learned counsel for the petitioner has relied upon a judgment passed by this Court in Bilal Ahmad Dar Vs. UT of J&K & Anr. (LPA No. 194/2023, decided on 02.03.2024).
12. The petitioner has assailed the impugned detention order on the predominant premise that since in all the FIRs, mentioned in the detention order, either the detenue has been enlarged on bail or acquitted, and the last alleged activity attributed to him pertains to year 2016, i.e. six years prior to passing of the impugned order, therefore, there is no proximate link between the detention order and the subversive activities attributed to him.
13. Perusal of the impugned detention order, as also the grounds of detention, however, would reveal that detaining authority has derived subjective satisfaction not only on the basis of the FIRs lodged against the detenue in the past or the earlier PSA orders issued against him, in which he came to be released from the detention, but according to the detaining authority, the detenue after his admission to bail or acquittal or release from the past activities, did not desist from anti-national activities and was involved in various activities of similar nature. Consequently, he was put on close surveillance and recently it came to the fore that he had again developed contacts with various secessionists and militant outfits to carry out anti-national activities.
14. Ordinarily a single act may not be sufficient to sustain an order of detention, however it is trite to say that at times even a single act may be sufficient to sustain order of detention if the said act is of such a nature so as to indicate that it is manifestly of organized activity. Reference in this regard may be made to Debu Mahato Vs. State of W.B (1974) 4 SCC 135; Anil Dely Vs. State of W.B (1974) 4 SCC 514; and Saraswathi Seshagiri Vs. State of Kerala (1982) 2 SCC 310.
15. Contention of learned counsel for the petitioner that allegations reflected in the grounds of detention are vague and do not justify passing of the detention order, also seems to be misconceived, because if detaining authority, on the basis of material placed before it, is satisfied that a person by himself or in association of his associates, does not desist from his anti-national activities and repeatedly involve in previous activities, those are punishable under the penal laws, the detaining authority is well within its rights to take such measure in terms of the provisions of PSA. 16. It needs to be understood that the very concept of maintenance of public order is to prevent a person from indulging in anti-national activities and not to punish him. Here it may be apposite to have a glance of Section 8 of PSA, which reads as under:-
“8. Detention of certain persons.-
(1) The Government may -
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to
(i) the security of the State or the maintenance of the public order, or
(ii) [deleted by J & K Act XII of 1988]
(b) if satisfied with respect to any person who is -
(i) a foreigner within the meaning of the Foreigners Act; 1946, or
(ii) a person residing in the area of the State under the occupation of Pakistan, that with a view to regulating his continued presence in the state or with a view to making arrangements for his expulsion from the State, it is necessary so to do, make an order directing that such person be detained.
(2) any of the following officers, namely -
(i) Divisional Commissioners,
(ii) District Magistrates, may, if satisfied as provided in sub-clauses (i) and (ii) of clause (a) of sub-section (1), exercise the powers conferred by the said sub-section.
(3) For the purposes of sub-section (1), -
(a) [deleted by J & K Act XII of 1988] (b) "acting in any manner prejudicial to the maintenance of public order" means -
(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting its use, or using, or instigating, inciting, or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting. provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing. or instigating, inciting, provoking or otherwise abetting the commission of mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order.
(4) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.”
16. From a plain reading of sub-section-1 of Section -8 PSA, it is manifest that the Government may, if it is satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to security of the State or maintenance of public order, it is necessary so to do, make an order directing that such a person be detained.
17. Section 8(3) of PSA enumerates various prejudicial activities that would fall within the mischief of “acting in any manner prejudicial to the maintenance of public order”. It includes within its fold prejudicial activities in the nature of promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on the ground of religion, race, community or region or the activities of making preparations for using or attempting to use or using or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order. ‘Acting in any manner, which is prejudicial to maintenance to public order’, also consists of attempting to commit or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more where the commission of such offence disturbs, or is likely to disturb public order.
19. The detaining authority, in terms of sub-section-4 of Section-8 of PSA, is obliged to report the fact to the Government together with the grounds on which the order has been made including other particulars those in his opinion have a bearing on the matter, and it is provided that no such order shall remain in force for more than twelve days after making thereof, unless in the interregnum, it has been approved by the Government.
20. In the present case, the detaining authority, endorsed a copy of the detention order dated 07.04.2022 to the Home Department for approval, as envisaged under sub-section-4 of Section-8 PSA and Financial Commissioner (ACS) Home, vide order No. Home/PBV/1147 of 2022 dated 08.06.2022, has approved the order of detention. In the circumstances, it is evident that detaining authority, immediately upon issuance of impugned detention order reported to the Government and the Department of Home approved the impugned detention order. Therefore, it is manifest that mandatory provisions of PSA have been strictly complied by the detaining authority.
21. Further contention of learned counsel for the petitioner is that detenue was not provided the relevant material including copy of the dossier, FIRs, statement of witnesses under Section 161 CrPC, seizure memo, arrest memos, bail orders, detention papers and PSA order dated 08.05.2017, so as to enable him to make an effective representation. According to learned counsel for the petitioner, the material furnished to the detenue was not sufficient for making an effective representation, which infringed the constitutional rights of the detenue guaranteed under Article 22(5) of the Constitution of India. It is also urged by learned counsel for the petitioner that postexecution, detenue was neither provided an opportunity of making representation nor he was informed of his right to make representation. It is also urged in the petition that post-detention, petitioner submitted a representation before respondent No.2, however, same was not accorded any consideration.
23. At the foremost, petitioner, in so far as filing of representation, postexecution is concerned, has raised self-contradictory stand, as on one hand it is contention of the petitioner that post-execution, he has neither been provided an opportunity to make representation nor was informed of his right to make representation but on the other hand his contention is that post-detention he submitted representation, which was not considered by the respondents.
24. Be that as it may, the aforesaid ground of challenge made use by learned counsel for the petitioner is specious and is liable to be turned down. It is pertinent to mention that respondents, in the reply affidavit, has confuted preference of any representation by the detenue and its receipt by them. In the circumstances, petitioner was obliged to make an endeavour to refute the contention of the respondent-detaining authority and controvert the reply affidavit by filing the rejoinder, which petitioner did not choose to do. Therefore, stand of the respondents, qua non-receipt of representation by it, remained un-rebutted on the part of the petitioner. In the circumstances, the case law relied by learned counsel for the petitioner on Bilal Ahmad Dar (supra) is of no use to him and is clearly distinguishable from the facts and circumstances of the present case.
25. Another contention raised by learned counsel for the petitioner, to challenge the impugned detention order, is that grounds of detention are nothing but replica of the dossier furnished by the police authority and detaining authority, in the present case, seems to have acted on the dictates of the police agency. The contention of learned counsel for the petitioner is legally flawed for the reason that writ court is not a proper forum to scrutinize the merits or de-merits of the administrative decision taken to detain a person.
26. It is trite to say that it is exclusive domain of the administration to ensure security of the State and maintenance of public peace and tranquillity and subjective satisfaction of the detaining authority to detain a person, in particular, when a person refuses to desist from his past anti-national activities, is not open to objective assessment of the Court.
27. The writ court, while examining the material, which was made basis of subjective satisfaction of the detaining authority, would not act as a court of appeal to find fault with the satisfaction arrived at by the detaining authority on the ground that another view was possible. This Court in exercise of its writ jurisdiction, has no power to substitute its satisfaction with one of detaining authority and decide whether satisfaction of the detaining authority was reasonable or proper or whether in the circumstances of the case a particular person should be detained or not. It lies within the competence of the Advisory Board, and as already mentioned, the Advisory Board in the present case vide its order dated 08.06.2022 has found sufficient ground for detention of the detenue.
28. Next ground raised by learned counsel for the petitioner to question the impugned detention order is that neither translated script of the detention order in Kashmiri or Urdu language was furnished to the detenue nor grounds of detention were read over and explained to him in the language understood by him, which according to the petitioner is reflection of non-application of mind on the part of the detaining authority.
29. Section-13 of PSA provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances, for the reasons to be recorded in writing not later than ten days from the date of detention, communicate to him, in the language understandable to him, the grounds on which the order has been made and shall afford him the earliest opportunity to make a representation against the detention order.
30. It is, indeed, a settled position of law that communication, as envisaged by Section 13 of PSA means bringing home to detenue effective knowledge of facts and grounds on which detention order is made and to a person who is not conversant with English language, the grounds of detention must be given in a language which the detenue understands and in a script that he can read, in order to satisfy the requirements of the Constitution.
31. A perusal of detention record would show that it came to be passed on 07.04.2022 and was executed upon the detenue on 11.04.2022 i.e., within five days from the date of passing of detention order. Notice of detention has been given to the detenue and contents of the detention warrant as also the grounds of detention have been read over and explained to the detenue in Urdu/Kashmiri languages, fully understood by him and signatures of the detenue have been obtained as an acknowledgment of this fact on the receipt of the grounds of detention and other related record. A perusal of the said receipt would also reveal that copy of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention, copies of FIR, statements of witnesses and other related relevant documents (total 05 leaves), were not only received by the detenue but same were read over and explained to him in the language which he fully understands. In addition, detenue has been informed of his right to make representation to the Government as well as detaining authority against the detention order, if he so desires.
32. As already stated, the petitioner has failed to refute the contents of this receipt by filing any rejoinder to the counter affidavit, therefore, it implies that respondents have scrupulously adhered to the statutory and constitutional obligations, pre and post passing of the detention order, impugned in the present writ petition.
33. The sheet anchor of the arguments of learned counsel for the petitioner is that there is no recent anti-national or illegal activity attributed to the detenue in the impugned detention order and since the last criminal activity attributed to the detenue dates back to six years, therefore, impugned detention order is an outcome of total non-application of mind on the part of the detaining authority.
34. As already discussed in the preceding paras, the argument put-forth by learned counsel for the petitioner is legally flawed for the simple reason that power of preventive detention is not exercised as a punishment and it may or may not relate to a criminal offence or registration of an FIR, but it is precautionary in nature and is exercised in reasonable apprehension and anticipation. The basis of detention is subjective satisfaction of detaining authority on a reasonable likelihood of detenue to act in a manner similar to his past activities, which may be prejudicial to the security of the State and detention order is passed to prevent him from indulging in similar activities.
35. A plain reading of the detention order, impugned in the present petition, would show that despite various FIRs, lodged against the detenue, and his release from the detention on various occasions, the detenue continued to indulge in similar activities and did not desist from anti-national activities, as a result he was put on close surveillance, during which it surfaced from reliable agencies that detenue again developed contacts with various terrorist groups and militant outfits to carry out anti-national activities. It has been alleged that detenue after his release from previous involvements, did not shun the path of disturbing peaceful atmosphere of the society and ordinary law of the land did not seem sufficient to deter him, which prompted the detaining authority to pass the impugned detention order.
36. As a matter of fact, the detail of FIRs in the grounds of detention as also reference to his past activities and his release from detention under PSA, in the grounds of detention, manifests awareness of the detaining authority and application of mind on its part, before the detaining authority embarked upon to pass the impugned detention order. The impugned order in the circumstances, has been passed by the detaining authority, which is based on a reasonable prognosis of his future behaviour, based on his past conduct and in light of the surrounding circumstances.
37. This Court in exercise of writ jurisdiction, under Article 226 of the Constitution of India, has a limited scope to scrutinize the grounds of detention and writ court cannot examine the sufficiency of material. The writ court does not sit in appeal over the decision of detaining authority to substitute its own opinion when the grounds of detention are precise, pertinent, proximate and relevant.
38. For what has been discussed above, it is found that grounds of detention, in the present case, are not only definite and proximate but free from any ambiguity. The detenue, in the present case, has been informed with sufficient clarity in the language which he fully understands. What weighed, while passing detention order, with the detaining authority are the narrated facts and figures in detail which made it to exercise its jurisdiction in terms of Section- 8 of PSA and it recorded subjective satisfaction that detenue was required to be placed under preventive detention in order to prevent him from his prejudicial activities.
39. Viewed from any angle, I do not find any illegality or impropriety in the impugned detention order. Hence, the present petition, being devoid of any merit, is, dismissed, and impugned detention order is upheld.
40. Detention record be returned back to learned GA.
