Shahid Hamid v. Union Territory of J&K & Ors.

detention record produced by Mr. Jahingeer A. Dar, GA, learned counsel for the respondents and considered the matter.

4. Assailing the impugned order, it is stated by learned counsel for petitioner that respondent no.2 was constitutionally duty bound to furnish all the relevant material to detenu, like copy of dossier and other connected documents which as per grounds of detention had been furnished to detaining authority by police and relying upon which detention order came to be passed, the material regarding allegations as mentioned in grounds of detention, so as to enable him to make an effective representation against his detention by giving his version of 1 facts attributed to him and make an attempt to dispel apprehensions nurtured by detaining authority concerning alleged involvement of detenu in alleged activities against the said order to competent authority. Since filing of an effective representation is a constitutional right and to enable detenu to file such a representation it is necessary to provide him copies of dossier, connecting documents and material and in the instant case respondent no.2 has not provided any such material to detenu, the material which has been furnished to detenu is not sufficient for making effective representation. The above submissions of learned counsel for petitioner are misconceived. The reason being that perusal of the detention record produced by the learned counsel for the respondents reveals that all the material that has been relied upon by the detaining authority while passing the order of detention has been furnished to the detenu to make an effective representation against his detention. Perusal of execution report and Receipt of grounds of detention reveals that detenu has been given all the material relied upon by the detaining authority to pass the impugned order of detention, which consists of 21 leaves. He had even been informed to make the representation both to the Government and the detaining authority. Therefore, the detenu cannot be heard saying that he was not informed to whom the representation was to be made against his detention.

5. The learned counsel for the petitioner also states that the allegations reflected in the grounds of detention are vague and do not justify passing of the detention order on the basis of such allegations. The detaining authority has mentioned various allegations in the grounds of detention, but no specific allegation has been given regarding detenu in the case mentioned in the grounds of detention, not even an iota of connection is given in grounds of detention connecting the detenu with allegations. The very basis of satisfaction recorded by the detaining authority is vague, as such, the impugned order of detention suffers from complete non-application of mind on the part of detaining authority. 2 Again, the above submissions of learned counsel for petitioner are unfounded. Perusal of grounds of detention reveals that exclusive subjective satisfaction has been reached on the basis of prejudicial activities pointed out in grounds of detention by the detaining authority. It is mentioned in grounds of detention that detenu met some OGWs of banned terrorist outfit and under their influence he agreed to work as OGW for resident handler Arjumand Gulzar @ Hamza Burhan of Al- badr terrorist outfit operating from Pak and TRF cadres active in the area. The detenu initially started to provide ground support/assistance to the terrorists operating in the area. The detenu subsequently is stated to have been introduced to resident handler and Al-Bader Chief in Pakistan, namely, Yousuf Blouch through social media networking apps. He made him familiar about the plans, goals and targets of Al-badr/TRF terrorist outfits and the style of working OGWs in carrying out their ill-designed plans. The detenu is said to have been providing information to terrorists about movement of security forces for their prolong sustenance. During investigation of FIR no.59/2023, detenu was found involved in pasting a poster at Pandit Mohallah Lajoora on 17.03.2023 depicting thereon that Lone wolf Warrior is wishing best and cognates Pakistan on the occasion of its Resolution Day, which created fear/panic like situation in the area particularly among the minorities regardless of drastic consequences. It is also mentioned in grounds of detention that detenu got printed the poster from shop (CSC) being run by Asif Gul and he also disclosed that detenu went to shop for printing Pakistani posters and thereafter handed over it to Asif Gul and another poster preserved in his laptop for future use. The laptop, printer and mobile of Asif Gul were seized and detenu along with Asif Gul were arrested on 18.05.2023 and seized poster was extracted from the laptop. Upon questioning, the detenu disclosed that he got contacted with terrorists through whatsapp. Motorcycle used for crime was also seized. As per retrieved data, detenu along with his associate was found involved in prejudicial activities falling under Section 120-B, 201 IPC, 20, 30, 39 UAPA. It is also made mention of in grounds of detention that detenu was released on 01.09.2023 upon bail granted by the court of competent jurisdiction. Detenu is stated to be in 3 constant touch with terrorists/OGWs operating in the area and handling from Pak/POK and has been providing information to terrorists regarding movement of security forces as also providing food, shelter and facilitating movement through unconventional routes just to deceive security forces/police.

6. The Supreme Court in the case of Debu Mahato v. State of W.B. (1974) 4 SCC 135, has categorically observed and said that while ordinarily- speaking one act may not be sufficient to form requisite satisfaction, there is no such invariable rule and that in a given case “one act may suffice”. That was a case of wagon-breaking and given the nature of the Act, it was held therein that “one act is sufficient”. The same principle was reiterated in the case of Anil Dely v. State of W.B. (1974) 4 SCC

514. It was only a case of theft of railway signal material. Here too “one act was held to be sufficient”.

7. Similarly, in Israil S K v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310, a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this: “Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity.”

8. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court. Similarly, where a person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, as in the present case detenu has been found continuously indulging in prejudicial activities since 2018, it was held 4 that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity.

9. Another contention of counsel for petitioner is that grounds of detention are verbatim copy of police dossier which clearly shows that detaining authority has not applied its mind to the available material but has made detention order mechanically. This contention of counsel for petitioner is misconceived. The detaining authority has given and made the grounds of detention on the basis of the material produced before it by the sponsoring agency and after deriving subjective satisfaction has passed the order impugned. 10. It may be further added here that the responsibility for the security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order the preventive detention. Thus, the subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. The Court is not a proper forum to scrutinize merits of 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 often said and held that the Courts do not even go into the question whether the facts mentioned in grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the Courts and that is not the policy of law of preventive detention. This matter lies within the competence of Advisory Board. It is evident from perusal of report of Advisory Board that it has considered the case of petitioner and found that grounds of detention are well found and all requirements contemplated under the Act have been complied with and no error of law or procedure, which would invalidate detention, seems to have been committed by detaining authority and that detention is thus well founded and in conformity with principles as enshrined under Article 22(5) of the Constitution of India and provisions of the Act. 5

11. Section 8 (1) of the J&K Public Safety Act, 978, provides 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 the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such a person be detained.

12. In the present case, detaining authority has reported the fact about making of order of detention to the Government. I have gone through the detention record produced by Mr. Jahingeer Ahmad Dar, learned GA, counsel appearing for respondents which has been approved and confirmed by the competent authority.

13. In such circumstances, detaining authority had, immediately upon issuance of impugned detention order, reported the said fact to the Government and the Government approved impugned detention order. Thus, there is no hindrance in saying that provisions of Subsection (4) of Section 8 of the Act of 1978, have been strictly complied with by respondents.

14. Section 9 of the Act provides that detention order may be executed at any place in the manner provided for executing the warrants of the arrest. Section 10 of the Act provides that any person in respect of whom a detention order is made under Section 8 of the Act shall be liable to be detained in such a place and under such conditions including the conditions as to the maintenance of the discipline and punishment for the breaches of the discipline as the Government may specify and that any person placed under preventive detention shall be liable to be removed from one place of detention to another place of detention. Where a person has been detained in pursuance of detention order under Section 8 of the Act, made on the two or more grounds, such order of detention, as envisaged under Section 10-A of the Act, shall be deemed to have been made separately on each of such grounds and as a consequence whereof, such an order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person. 15. Section 13 of the Act provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as 6 soon as maybe, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him, in the language which is understandable to him, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order of detention. However, Subsection (2) of Section 13 provides that nothing in subsection (1) of Section 13 shall require the authority to disclose facts which it considers to be against the public interest to disclose.

16. In view of the Statutory and the Constitutional requirements to be followed by the respondents in the present case, as has also been noticed above, I have gone through the detention record produced by the counsel for the respondents. All the material relied upon by the detaining authority had been furnished to the detenu. He had been intimated to make a representation to both the Government and the detaining authority.

17. Article 22 (5) of the Constitution of India casts a dual obligation on the detaining authority, namely.: (i) To communicate grounds of detention to the detenu at the earliest; (ii) To afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible. 18. The Supreme Court has reiterated that the communication means bringing home to the detenu the effective knowledge of the facts and the grounds on which the detention order is based. To a person who is not conversant with the English language, in order to satisfy the requirement of the Constitution, must be given the grounds in a language which he understands and in a script that he can read, if he is a literate person. If a detained person is conversant with English language, he will naturally be in a position to understand gravamen of the charge against him and the facts and circumstances on which order of detention is based. So is the position in the present case.

19. The Constitution has guaranteed the freedom of movement throughout the territory of India and has laid down the detailed rules about the arrest 7 and the detention. It has also, by way of the limitations upon the freedom of the personal liberty, recognised right of the State to legislate for preventive detention, subject to certain safeguards in favour of detained person, as laid down in Clauses (4) & (5) of Article 22. One of those safeguards is that detained person has a right to be communicated the grounds on which order of detention has been made against him, in order that he may be able to make his representation against the order of detention. In the circumstances of instant case, it has been shown that detenu had opportunity, which the law contemplates in his favour, for making an effective representation against his detention. He, however, did not avail of said opportunity.

20. In the present case, perusal of the detention record reveals that the Advisory Board has conveyed that the grounds of detention formulated by the detaining authority were sufficiently supported by the dossier/ material and that the grounds of detention and other relevant material were furnished to the detenu at the time of taking him into the detention and that the detenu was also informed about his right of making the representation against his detention but no representation appeared to have been made by detenu as no such representation was lying on the record placed before Advisory Board. The Advisory Board has opined that there is sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.

21. For the reasons discussed above, the instant petition is dismissed. 22. Detention record be returned to the learned counsel for the respondents. Srinagar 01.08.2025 (Qazi Amjad, Secy) (Vinod Chatterji Koul) Judge 8