Preventive Detention cannot be used as a substitute for ordinary law: High Court of Jammu and Kashmir

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR THROUGH VIRTUAL MODE) WP(Crl) no. 148 2020 Reserved on: 20.05.2021 Pronounced on: 04.06.2021 Mohammad Maqbool Dar Through: Mr. G. N. Shaheen Advocate . Petitioner(s) UT of JK and others ... Respondent(s) Through: Mr. Mir Suhail AAG HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL JUDGE The Order No.27 DMP PSA 20 dated 12.09.2020 issued by District Magistrate Pulwama placing detenu namely Mohammad Maqbool Dar S o Ghulam Ahmad Dar R o Hariparigam Tehsil Awantipora District Pulwama under preventive detention in terms of J&K Public Safety Act so as to prevent him from acting in any manner prejudicial to the security of the State and directing his lodgement in Central Jail Kot Bhalwal Jammu has been challenged in this writ petition through his uncle. The order of detention though challenged on various grounds yet learned counsel for the petitioner has vehemently urged that the material relied upon by the detaining authority while passing impugned detention order has not been provided to detenu to enable him to make an effective and meaningful representation. Another submission of learned counsel for petitioner is that grounds of detention are replica of police dossier. Respondents in their counter affidavit have submitted that there is no illegality in the order of detention as it was necessary to place the detenu under preventive detention. The detenu has been indulging in activities which are prejudicial to the security of the State. The grounds taken by the detenu are said to be legally misconceived untenable and without any merit. It is further contended that the grounds of detention are precise proximate and relevant. The detenu was also informed to make his representation to the Government against his detention order. The warrant was read over and explained to him and the order has been passed after proper application of mind. Detention record has also been produced by the learned counsel for respondents. I have heard learned counsel for the parties and considered the matter. 5. The main ground taken by the detenu in this writ petition is that he was not in a position to make an effective and meaningful representation either to the detaining authority or to the Government against his detention because he was not provided the material by the detaining authority thus there is violation of provisions of Article 22 5) of the Constitution of India and in absence of such material he was prevented from making an effective representation. To evaluate the submissions made by learned counsel for parties vis à vis furnishing of material to detenu that has been relied upon by detaining authority while issuing impugned detention order it would be appropriate to go through the detention record produced by learned counsel for respondents. Detention record contains amongst others Execution Report which reveals that only four leaves have been furnished to detenu. It does not show or suggest that detenu has been furnished copy of dossier copies of FIR and other relevant material relied upon by detaining authority while issuing impugned detention order. Bare reading of impugned detention order divulges that Sr. Superintendent of Police Awantipora vide his letter no. Pros PSA 2020 68 71 dated 09.09.2020 produced dossier material record and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention attribute various incidents and instances to detenu and mention that detenu has been instigating provoking the masses against the government and his persistent involvement in antinational activities is posing severe threat to the security of the State. Detention record also mentions lodgment of one FIR against the detenu. The material relied upon by detaining authority thus assumes significance in the facts and circumstances of the case. It needs no emphasis that the detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act 1978 unless and until the material on which the detention order is based is supplied to the detenu. It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehensions concerning the activities of detenu are baseless and misplaced. If detenu is not supplied the material on which detention order is based he will not be in a position to make an effective representation against his detention order. Failure on the part of detaining authority to supply the material relied at the time of making the detention order to detenu renders detention order illegal and unsustainable. While saying so I draw the support from the law laid down in Thahira Haris Etc. Etc. v. Government of Karnataka AIR 2009 SC 2184 Union of India v. Ranu Bhandari 2008 Cr. L. J. 4567 Dhannajoy Dass v. District Magistrate AIR 1982 SC 1315 Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051 and Syed Aasiya Indrabi v. State of J&K & others 2009S.L.J 219. In the present case it is submission of respondents that there are very serious allegations against detenu as he has always been in the lead role in anti national activities which are detrimental to the sovereignty and integrity of the country and has been creating law and order problem. And in this connection a criminal case is already going on against detenu under various provisions of Penal Laws and if he is found guilty he will be convicted and given appropriate sentence. Maybe offences allegedly committed by detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes which detenu may have committed. After all preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011 SCW 2262 while emphasising need to adhere to procedural safeguards observed: “It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as “jurisdiction of suspicion” The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause 3) of Article 22 specifically excludes the applicability of Clausesand the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards however technical is in our opinion mandatory and vital.” In a case of preventive detention no offence is proved nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time when a person s greatest of human freedoms i.e. personal liberty is deprived the laws of preventive detention are required to be strictly construed and a meticulous compliance with the procedural safeguards howsoever technical has to be mandatorily made. Reference in this regard is made to Haradhan Saha v. State of West Bengal & ors 3 SCC 198 Union of India v. Paul Manickam & anr 8 SCC 342 Rajinder Arora v. Union of India4 SCC 796 Powanammal v. State of Tamil Nadu and anr. AIR 1999 SC 618 G. M. Shah v. State of J&K 1 SCC 132 Talib Hussain v. State of J&K & others 2009 II) SLJ 849 Nissar Ahmad Bhat v. State & ors 2014SLJ 1047 Shahmali v. State & others 2010SLJ 56 Dilawar Magray v. State of J&K & ors 2010SLJ 696 and Sajad Ahmad Khan v. State & others 2010SLJ 743. Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws. as also in Sama Aruna v. State of Telengana AIR 2017 SC 2662. 11. Based on the above discussion the petition is disposed of and Detention Order No.27 DMP PSA 20 dated 12.09.2020 issued against the detenu Mohammad Maqbool Dar S o Ghulam Ahmad Dar R o Hariparigam Tehsil Awantipora District Pulwama is quashed. As a corollary respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of. 12. Detention record be returned to the learned AAG. Qazi Amjad Secy Whether approved for reporting 

Summary: Preventive detention involves detaining a person without trial to prevent him from committing a crime in the future based on his past record with the law. However such tools are meant to be used strictly in compliance with the safeguards and not as an alternative to the ordinary law of the land. A judgement passed by a single-member bench consisting of Justice Vinod Chatterji of the High Court of Jammu and Kashmir in the case of Mohammad Maqbool Dar v Union Territory of Jammu and Kashmir and others [WP(Crl) no. 148/2020] on 4th June 2021 addressed the usage of preventive detention. The petitioner, Mohammad Maqbool Dar was held under preventive detention in terms of Jammu and Kashmir Public Safety Act, so as to prevent him from acting in any manner that could be adverse to the security of the state. This was challenged on the grounds that the material relied upon by the detaining authority while passing the detention order has not been provided to the detainee so he was not allowed to effectively represent his case, leading to a violation of Article 22 of the Indian Constitution. The respondents submitted that the detainee played a role in anti-national activities which were detrimental to the integrity and sovereignty of the nation and that he already has a criminal case going against him. The court noted that the detainee cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Cosntitution unless the material on which the detention order is based, is supplied to him. The case of V. Shantha v State of Telengana and others, [AIE 2017 SC 2625] was cited, where it was held that preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws. The court also stated that preventive detention involves detaining a person without trial in order to prevent him from committing a certain offence, so it should not be used as an instrument to keep a person in custody without trial.