OWP no.351/2018 MP no.01/2018 Date of order: 07.09.2018 Farooq Ahmad Bhat v.

State of J&K and another Coram:

The same would tantamount to deprivation of liberty without following constitutional imperatives. In 2012, when detention was challenged before the Supreme Court, the State declared that it was revoking detention, likely with a view to avoid judgement on merits, yet the Supreme Court though fit to impose a condition that he should be given a clear seven-day notice period before any future detention, after revocation of the one challenged before it in that case. Unheeding of the same, the same pattern of one detention after another is said to have been adopted. Between 2007 and 2013, petitioner has spent almost 25 years in custody of preventive detention. After the Supreme Court's order dated 22nd March 2013, he was subject to six orders of preventive detention; out of which five detention orders have been quashed by this Court. He has also secured four bail order since 2007, except the latest order of preventive detention dated 11th November 2017.

4. It is next assertion in writ petition that following substantial questions of law arise for consideration of this Court:

5. The factual averments made in writ petition on hand are that on 2nd October 1990, detenu was detained for first time. He was released more than a year thereafter, in November 1991. In 1993, he was detained for a second time, citing similar grounds as before under the provisions of Public Safety Act. He was kept in custody for more than four years, through repeated extensions of detention orders and released in February 1997. Less than six months after release, in September 1997, detenu was detained for a third time. This time he was detained for almost three years and released only in May 2000. Nine months after release, in January 2001, detenu was detained for fourth time for more than two and half years and released in August 2003. Detenu was on 7th October 2003, detained for fifth time for a period of one year and nine months. He was released in July 2005. On 5th September 2005 it is stated that the Prime Minister in a meeting with all Party Hurriyat Conference (APHC) agreed to review, in a time-bound manner, all cases of those held in detention and Prevention of Terrorism Act, 2002 (POTA). On 22nd April 2007, detenu was detained for OWP no.351/2018 Page 5 of 68 MP no.01/2018 a sixth time by an order dated 28th April 2007, which was challenged before this Court in HCP no.108/2007. On 16 th January 2008, instead of complying with the order of this Court, the State foisted numerous cases against petitioner's nephew (detenu). Soon thereafter, he was detained in terms of seventh detention order bearing no.DMS/PSA/26/2007. This act of the State, according to petitioner, was beginning of a pattern where in spite of an order of High Court, detenu was subjected to a fresh order of detention in order to continue to keep him incarcerated. This happened nine times in the last four years. On 23rd May 2008, detention order no.DMS/PSA/ 26/ 2007 dated 16th January 2008, was successfully challenged before this Court, which was pleased to quash the same in HCP no.30/2008. On 5 th September 2008, in around three months, detenu was again, for the eight time, detained by detention order dated 9 th September 2008. This Court by order dated 27th December 2008, quashed said detention order dated 9 th September 2008 in HCP no.223/2008. However, detenu was not released from custody on the basis of his alleged involvement in FIR no.42/2008. It is averred that the fact of detenu's involvement in FIR no.42/2008 was not raised at the time of arguments and also at the time of disposing of the petition. On 22nd January 2009, petitioner is stated to have obtained bail from the court of learned 3 rd Additional OWP no.351/2018 Page 6 of 68 MP no.01/2018 Sessions Judge, Srinagar. A fresh detention order dated 21st January 2009 was passed, detaining detenu ninth time. He was shifted to District Jail, Udhampur. The said detention order was quashed by this Court on 25th May 2009 in HCP no.302/2009. However, detenu was once again not released and was subjected to fresh order of detention dated 9th June 2009.

6. It is maintained that tenth order of detention, as said by petitioner, was symptomatic of pattern of effecting a fresh order of detention before the order of this Court could come into effect and detenu released. The respondents are stated to have made every effort to forestall orders of this Court. This Court by order dated 18th August 2009, passed in HCP no.102/2009, quashed detention order. Detenu was not released but was booked under various other charges. Despite this, attempt by the State to forestall his release, he was granted bail and had to be ultimately released in pursuance of the order granting bail. However, detenu is said to have been rearrested in connection with FIR no.01/2009 and detained for eleventh time vide detention order dated 12th September 2009, which was challenged before this Court but in the interregnum the said detention order was revoked by the Government on 29 th October 2009. However, on 2nd February 2010, impervious to repeated orders of this Court, the State, adamant to keep OWP no.351/2018 Page 7 of 68 MP no.01/2018 detenu in custody, again arrested and thereafter detained him vide twelfth detention order dated 2nd February 2010 and detenu was lodged in District Jail, Kathua. HCP no.25/2010 was filed against said detention order, which was allowed by this Court vide order dated 8th April 2010, quashing the said detention order. On 18th April 2010, detenu was arrested from his maternal uncle' house in Wagund Tailbal area in connection with case FIR no.59/2010 under Sections 13 , 18 of Unlawful Activities (Prevention) Act, 1967, 209, 121 RPC P/S Harwan. On 8 th November 2010, custody of detenu was changed to FIR no.128/2010 under Section 120-B, 121A, 124A, 505, 506 RPC registered in P/S Saddar. On 18th November 2010, custody was changed to FIR no.07/2010 P/S Maisuma. On 29th November 2010, custody was changed to FIR no.52/2010 under Section 124-A, 506 RPC P/S Kothibagh. On 11th December 2010, for thirteenth time, detenu was detained and lodged in District Jail, Udhampur, vide detention order no.DMS/PSA/112/2010. The said detention order was challenged and quashed by this Court in HCP no.49/2011. Detenu was released on 30th July 2011, but rearrested on same day by Counter Intelligence Unit in connection with investigation of FIR no.01/2011 under Section 120-B, 121 RPC and Section 18 UAPA. On 4th August 2011, fourteenth detention order was slapped on the OWP no.351/2018 Page 8 of 68 MP no.01/2018 apprehension that detenu might be admitted to bail. In HCP no.304/2011, fourteenth detention order was challenged. This Court by order dated 23rd December 2011 quashed aforesaid detention order. On 30th December 2011, detenu is said to have been again placed under preventive detention and on the same date he was also arrested in connection with case FIR no.74/2010 under Section 14 UPA, 153B RPC P/S Shaheed Gunj, Srinagar. The said detention order dated 30th December 2011 was quashed by this Court vide order dated 2nd June 2012. Detenu was granted bail in two cases pending against him. On 31st July 2012, the date set for release of detenu in pursuance of order dated 2nd June 2012 passed by this Court, detenu was arrested by Counter Intelligence, Jammu, in connection with case FIR no.02/2012.

7. It is next stated that on 3rd August 2012, detenu was again subjected to sixteenth detention order bearing no.DMS/ PSA/24/2012, which was also put to challenge. In the interregnum detenu was also granted bail in relation to FIR no.35/2008. This Court by order dated 19th October 2012 quashed sixteenth detention order. Seventeenth detention order bearing no.DMS/PSA/39/2012 dated 30.10.2012, was again slapped on detenu, which was put to challenge before the Supreme Court. However, the said detention order was revoked by the Government. Petitioner claims that thereafter detenu was neither detained under Public Safety OWP no.351/2018 Page 9 of 68 MP no.01/2018 Act nor was he released. He was, however, booked in several FIRs. Thereafter he was once again placed under preventive detention vide detention order no.DMS/PSA/24/ 2013 dated 14th June 2014 and lodged in District Jail, Baramulla. He challenged the said detention order in HCP no.72/2014. It is averred that despite quashment of detention order dated 8th January 2014, detenu was not released by respondents, but booked him in several criminal cases. When he was granted bail, he is asserted to have been released by respondents, only to be rearrested on 17 th April 2015 in connection with case FIR no.92/2015 of P/S Budgam. While he was in police custody, he was again detained by order no.DMB/PSA/02/2015 dated 21 st April 2015 and lodged in Central Jail, Kotebhalwal, Jammu. Detention order was assailed in HCP no.32/2015, which succeeded and detention order quashed by this Court vide order dated 21st August 2015. Despite passing of orders from time to time by this Court in petitions (HCPs), respondents are said to have not released detenu and placed him under preventive detention till they passed detention order no.25/DMB/PSA/2017 dated 8th May 2017, which was put to challenge in HCP no.177/2017 and this Court by order dated 26th October 2017, quashed the said detention order dated 8th May 2017. However, despite the aforesaid order, detenu was not released but was again detained vide OWP no.351/2018 Page 10 of 68 MP no.01/2018 detention order no.17-DMK/PSA of 2017 dated 14th November 2017. This detention order, according to petitioner, is 36th detention order passed against detenu since 1990 and detenu is stated to be currently lodged at Central Jail, Kotbhalwal, Jammu.

8. Reply affidavit has not been filed by respondents, but by District Magistrate, Kupwara, as he is author of impugned detention order and not District Magistrate, Srinagar. He insists that detenu is heading one of the prominent secessionist outfits, namely, Muslim League, which is an important constituent of Hurriyat Conference (G) Group. Right from the year 1990, detenu is stated to have indulged in various terrorist and secessionist activities, aimed at seceding the State of Jammu and Kashmir from the union of India. Detenu was born in the year 1971. He throughout his life has been harbouring deep antinational sentiments. It is also insisted that when militancy erupted in the Valley in the year 1990, detenu associated himself with militant ranks of terrorist outfit, Hizbullah, and participated in a number of subversive activities, which were highly prejudicial to sovereignty of the country and maintenance of law and order. In a short span of time, he assumed a very high position in terrorist circles. Since then detenu has been arrested on several occasion and every time he comes out of detention/on bail and again indulges in similar antinational OWP no.351/2018 Page 11 of 68 MP no.01/2018 and secessionist activities, which are prejudicial to maintenance of security of State as well as public order. Detenu is said to have been with the passage of time graduated from being a secessionist activist to self-styled Chairman of a prominent secessionist outfit. This change is just a change in the style of operation/modus operandi as the ideology of detenu continues to be the same, i.e. to secede the State of J&K from the Union of India by use of force. Detenu continues to be terrorist/antinational element. Detaining authority claims that instead of wielding gun, he has adopted different style, which is more dangerous than that of a gun-wielding terrorist. Detenu, after realising that terrorist network is weakening day by day, adopted new face of leading a secessionist outfit, which is basically aimed at continuing the secessionist and terrorist activities with an objective of seceding the State of J&K from the Union of India. In order to achieve this objective, detenu not only indulges in secessionist activities but at the same time maintains his contacts with terrorists of various outfits virtually facilitating and abetting the carrying out of subversive activities, which were prejudicial to security of the State.

9. District Magistrate, Kupwara, also avers in counter affidavit that in the year 2008, various groups of secessionists devised a new strategy to create atmosphere of OWP no.351/2018 Page 12 of 68 MP no.01/2018 secessionism. In the past few years, secessionists including detenu sponsored various programmes like strikes and hartals, forcing general public to participate in programmes, which he has devised to create an impression that general public out of their freewill, will support such programmes, but investigations, conducted in all the cases which were registered during land row agitation, has revealed that such illegal programmes are being carried out by secessionists including detenu by motivating general youth to join terrorist and secessionist organisations by arousing their sentiments on religious grounds and to incite them to participate in such illegal programmes. Detenu has been found to resort to various coercive measures to make general public to observe strikes and protests. In fact, secessionists including detenu have devised a strategy to disrupt public tranquillity and to create an atmosphere of chaos, which suits their ideology. These likeminded secessionist groups have joined hands and formed a conglomerate, which is spearheading agitational programmes. In the year 2008, 2009 and 2010 particularly, detenu and his secessionist group, issued a calendar of dates on which protests and strikes were to be observed. Kashmir Valley in general and Srinagar in particular, have witnessed that such strikes disrupted supply of essential commodities, force closure of essential public service departments OWP no.351/2018 Page 13 of 68 MP no.01/2018 including medical department and stop business activities. Educational institutions got paralysed by programmes framed/given and detenu was one of the main organisers of such strikes/programmes and protests. Detenu created circumstances, which led to serious law and order problems in the Valley. Be it the land row 2009, drowning of two women in Shopian in the year 2009, or summer unrest in Kashmir Valley in the year 2010. The amalgam including detenu have been exploiting public anger in a way as to create large scale law and order problems. During these years, it has been observed that every civic activity has got affected and transport, education, medical service, tourist, trade, etcetera, was brought to a standstill. In a well- designed strategy a vicious cycle has been created to project public anger as support in favour of secessionism, which in fact is the handiwork of detenu and his likeminded associates. During previous years as many as 50 criminal cases stand registered against detenu.

10. District Magistrate, Kupwara, also contends that detenu, in order to arouse public sentiments and to hold public hostage to his ideology, has been launching various antinational campaigns through print and electronic media to create circumstances ridden with fear, exploitation, uncertainty and provocation, which not only has been disturbing public order but has been putting general public to untold OWP no.351/2018 Page 14 of 68 MP no.01/2018 hardships. It is strenuous assertion of detaining authority that detenu was main organiser of summer unrest in which large scale loss of life and property were reported in Kashmir Valley. For indulging in such activities, detenu is stated to have been arrested on several occasions and he has also been detained under Public Safety Act on various occasions under due process of law. There were credible inputs that detenu was contemplating to launch a fresh phase of agitation and secretly discussed strategy with his colleagues and associates who were found visiting him in the jail. The activities of detenu in the jails otherwise did not show any sign of change of his mind or any repentance during detention period. It is also contended that there were reports that various disgruntled elements intended to disrupt peace by sponsoring various programmes of violent nature and detenu, if released, could have played a very vital role in implementing such programmes through these elements and it seems that ordinary law of land is not sufficient to curb his subversive activities and his being at large is a constant threat to maintenance of public order and it becomes imperative to detain him under provisions of Public Safety Act, 1978 , and according detaining authority has passed impugned detention order. The order of detention is said to have been executed on 16 th November 2017. It is maintained that detention order along with OWP no.351/2018 Page 15 of 68 MP no.01/2018 grounds of detention and other material was read over and explained to detenu in Urdu and Kashmiri languages and the entire material was furnished to him against proper receipt on 16th November 2017. It is also averred that detenu was also informed that he could make a representation against detention order, if he would desire to do so.

11. Detaining Authority also maintains in his counter affidavit that the case of detenu was referred to the State Advisory Board for its opinion and the State Advisory Board vide opinion dated 6th December 2017 has observed that there is sufficient cause for detention of detenu under J&K Public Safety Act, 1978. After receiving opinion of the State Advisory Board, the Government confirmed detention order of detenu vide Government Order no.Home/ PB-V/2314 of 2017 dated 11th December 2017 and directed that detenu be detained for a period of three months in the first instance at Central Jail Kotbhalwal, Jammu. The period of detention of detenu is said to have been scheduled to expire on 15th February 2018. However, Additional Director General of Police, CID, J&K, vide letter no.CID/BR/Exp./ SKR/ J/ 2018/ 311 dated 29th January 2018, recommended extension in the period of detention in respect of detenu on the ground that activities of detenu are highly prejudicial to the security of the State/ Nation. As a consequence whereof, the Government by order no.Home/PB-V/132 of 2018 dated OWP no.351/2018 Page 16 of 68 MP no.01/2018 12th February 2018, in exercise of powers conferred by Section 8(1)(a)(i) read with Clause (a) of Subsection (1) of Section 18 of J&K Public Safety Act, as amended in 2012, directed detenu be detained for a further period of three months and lodged in Central Jail, Kotbhalwal, Jammu. The said extension period was again scheduled to expire on 14th may 2018. However, again Additional Director General of Police, CID, J&K, vide letter no.CID/BR/Exp./SKR/2018/ 1408 dated 19th April 2018, recommended extension in the period of detention of detenu and as sequel whereto, by Government Order no.Home/PB-V/480 of 2018 dated 10th May 2018, directed detenu be detained for a further period of three months and lodged in Central Jail Kotbhalwal, Jammu. Detaining authority also avers that he has followed provisions of Public Safety Act. Detenu is said to have been detained only after following due procedure in terms of Public Safety Act.

12. Petitioner has not preferred to file Rejoinder/Supplementary Affidavit, to controvert what has been contended by detaining authority in his Reply Affidavit. Thus, contentions and assertions made by detaining authority (District Magistrate, Kupwara), in his Reply Affidavit qua detenu and his prejudicial activities remained unrebutted and uncontroverted.

13. I have learned counsel for parties. I have gone through detention record and considered the matter.

14. Learned counsel for petitioner has stated that power of executive detention is meant to be exceptional, sparing and limited and that it has been converted into a power to impose a virtual life sentence by the State of Jammu and Kashmir. He also states that detenu has not been put on trial and his guilt or innocence decided by an open process of justice. Avoidance of such course argues for malice, and the State is detaining him punitively in the garb of preventive detention. Such an observation has been made by this Court as well. For instance, this Court, in its order dated 21 st August 2015, while quashing detention order dated 21st April 2015, has observed that preventive detention is to be treated as a temporary or transitory tool and whenever detenu is involved in a substantive offence, criminal case is registered or charge sheet is pending against him, ordinary law is to be given a chance and that by prolonging detention beyond permissible limits, detenu is being literally sentenced, who incidentally is accused in pending criminal case without trial. Despite successive orders quashed by this Court, learned counsel has averred that respondents have issued fresh detention orders from time to time which, however, have been subsequently quashed for reason, such as failure to communicate grounds of detention; non-

application of mind by detaining authority; non-compliance with constitutional and statutory requirements of supply of material which formed basis of detention order; and non- provision of opportunity to make a representation against order of detention. Respondents are said to have been relentlessly passing detention orders on ground that run afoul of the Constitution and safeguards inbuilt in preventive detention statute on a routine basis in blatant violation of this Court orders. Learned counsel also states that the powers of this Court under Article 226 of the Constitution are wide enough to fashion a remedy, such a direction in the nature of mandamus to ensure that there is no improper use of statutory, executive power and a declaration that use of such power for causes or grounds that have been adjudged as improper by the Courts is incompetent. To bolster his submissions, learned counsel for petitioner has placed reliance on judgements rendered in Kuso Sah v. The State of Bihar and others AIR 1974 SC 156; Ramesh v. State of Gujarat AIR 1989 SC 1881; Jahangirkhan Fazalkhan Pathan v. The Police Commissioner, Ahmedabad and another AIR 1989 SC 1812; Chhagan Bhagwan Kahar v. N. L. Kalna and others AIR 1989 SC 1234; V. Shantha v. State of Telangana and others AIR 2017 SC 2625; Masarat Alam Bhat v. State of J&K and others 2003 (II) SLJ 570; Mst Zahida v. State of OWP no.351/2018 Page 19 of 68 MP no.01/2018 J&K and others 2008 (I) SLJ 245; and Fayaz Ahmad Wani v. State of J&K and others 2013 (I) SLJ 272.

15. Let me first say that the Constitution of India, the precursor of new Indian renaissance, became effective on January 26, 1950. Before advent of the Constitution, India was governed under the Government of India Act, 1935 , which became effective in 1937. India was then a part of the British Empire. Sovereignty of British Crown prevailed over the country. It was in exercise of this sovereignty that British Parliament had enacted the Act of 1935. In short, prior to 1947, effective power and control over the Indian Administration lay with the Secretary of State, the Governor-General and the Governors; Indian participation in the government process was miniature and naturally the Indians never felt reconciled to such a dispensation. There, thus, arose an insistent demand for independence which resulted in the setting up of a Constituent Assembly for drafting a Constitution for a free India. The Assembly formally commenced its task of Constitution-making from 9th December 1946, when it held its first meeting. The Constituent Assembly embarked on its work in right earnest and after three years' hard labour, finalised the Constitution of India on November 26, 1949. The fact that the Indian Constitution was drafted in the mid-twentieth century gave an advantage to its makers insofar as they could take OWP no.351/2018 Page 20 of 68 MP no.01/2018 cognisance of the various constitutional processes operating in different countries of the world and thus draw upon a rich fund of human experience, wisdom, heritage, social and economic conditions in India. The end result, the Indian Constitution has turned out to be a very interesting and unique document.

16. Unlike the Constitution of Australia, Canada or the USA, the Constitution of India has an elaborate Preamble. The purpose of the Preamble is to clarify who has made the Constitution, what is its source, what is the ultimate sanction behind it; what is the nature of the polity which is sought to be established by the Constitution and what are its goals and objectives. The Preamble gives a direction and purpose to the Constitution. It outlines objectives of the whole Constitution. The words in the Preamble are:

17. As regards nature of the Indian Polity, the Preamble of the Constitution declares India to be a "Sovereign Socialist Secular Democratic Republic". The term "Sovereign" denotes that India is subject to no external authority and that OWP no.351/2018 Page 21 of 68 MP no.01/2018 the State has power to legislate on any subject in conformity with constitutional limitations to preserve sovereignty of the India. The Preamble of the Constitution also enjoins to secure to all citizens of the India justice, liberty, equality, and more particularly assuring the "unity and integrity of the Nation".

18. The Constitution of India, there is no naysaying, is world's best sanctified book. Article 19 of the Constitution provides:

"19. Protection of certain rights regarding freedom of speech, etc.--

(1) All citizens shall have the right--

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and *****

(g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,--

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."

19. Thus, from the above it is indubitably clear that Clauses (a) to (g) of Article 19 (1) guarantee to citizens of India six freedoms, viz., of 'speech and expression', 'peaceable assembly', 'association', 'free movement', 'residence' and 'practising any profession and carrying on any business'. These various freedoms are necessary not only to promote certain basic rights of the citizens but also certain democratic values in and oneness and unity of the country.

Article 19 guarantees some of the basic, valued and natural rights inherent in a person. It has been said that these rights are great and basic rights which are recognised and guaranteed as the natural rights, inherent in the status of a citizen of a free country but not absolute in nature and uncontrolled in operation. The scheme of Article 19 shows that a group of rights are listed as clauses (a) to (g) and are recognised as Fundamental Rights conferred on citizens. All the rights do not stand on a common pedestal but have varying dimensions and underlying philosophies. The common thread that runs throughout clauses (2) to (6) is that the operation of any existing law or the enactment by the State of any law which imposes reasonable restrictions to achieve certain objects, is saved. However, freedoms guaranteed by Article 19 (1) , as said by the Supreme Court in Society for Un-aided Private Schools of Rajasthan v. Union of India , AIR 2012 SC 3445, are not absolute as no right can be. Each of these rights is liable to be controlled, curtailed and regulated to some extent by laws made by Parliament or the State Legislatures.

20. Limitations imposed by Articles 19(2) to 19(7) on the freedoms guaranteed by Articles 19(1)(a) to (g), serve a twofold purpose, viz., on the one hand, they specify that these freedoms are not absolute but are subject to regulation; on the other hand, they put a limitation on the OWP no.351/2018 Page 24 of 68 MP no.01/2018 power of a legislature to restrict these freedoms. A legislature cannot restrict these freedoms beyond the requirements of Articles 19(2) to 19(6). Three significant characteristics of clauses 19(2) to 19 (6) may be noted:

21. It is difficult to give an exact definition of the word "reasonable". There is no definite test to adjudge reasonableness of a restriction. Each case is to be judged on its own merits, and no abstract standard, or general pattern of reasonableness is applicable uniformly to all cases. When the law contains 'substantive' restrictions with regard to exercise of the right, as well as 'procedural' provisions, the Courts would consider the reasonableness of both.

22. In Papnasam Labour Union v. Madura Coats Ltd. , AIR 1995 SC 2200, the Supreme Court laid several principles and guidelines, inter alia, that the rights guaranteed under Article 19 , which include right to freedom of speech and expression, do not confer any absolute or unconditional right. Each right is subject to reasonable restriction which the legislature may impose in public interest. It is, therefore, OWP no.351/2018 Page 25 of 68 MP no.01/2018 necessary to examine whether such restriction is meant to protect social welfare satisfying the need of prevailing social values. The word 'restriction' includes 'prohibition'. Under certain circumstances, therefore, a law depriving a citizen of his Fundamental Right, as said by the Supreme Court in Narendra Kumar v. Union of India , AIR 1960 SC 430, may be regarded as reasonable.

23. Freedom of speech is bulwark of democratic government. This freedom is essential for proper functioning of democratic process. The freedom of speech and expression is regarded as first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succour and protection to all other liberties. The freedom of speech under Article 19(1)(a) includes right to express one's views and opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film, movie, etcetera. It, thus, includes the freedom of communication and the right to propagate or publish opinion. But this right, as said by the Supreme Court in Radha Mohan Lal v. Rajasthan High Court (2003) 3 SCC 427, is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a licence to make unfounded, irresponsible and hate speech to create commotion, tumultuousness and turmoil. Same is true qua present case. As many as 50 cases have been OWP no.351/2018 Page 26 of 68 MP no.01/2018 registered against detenu for his prejudicial activities that has caused disruption in the peaceful environment of the valley, loss of revenue to common people, loss of earning and livelihood, loss of properties. Right to freedom speech and expression is not an unbridled power and right to cause chaos and confusion in the State. If an individual indulges in an act or activity that threatens the sovereignty and integrity of India or security of the State or public order, the restrictions on exercise of the rights conferred by Article 19 (1) can very well be made use of by the State as enshrined under Articles 19(2) to Article (6) , to prevent such prejudicial activity. Detenu, in present case, cannot be said to be as gullible as has been tried to be shown in writ petition on hand. One cannot turn a blind eye to the fact that detenu is accused, not in a 01, 05 or 10 but, in 50 criminal cases, not for his peace related activities, but obviously for his alleged criminal activities. It is made clear here that the Nation is first and prime and individual interest, or say right, last. Once that being the position, sovereignty and integrity of the Nation, security of the State or public order is principal duty of the State to be saved and protected from unscrupulous elements.

24. While it is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place certain curbs on this freedom for OWP no.351/2018 Page 27 of 68 MP no.01/2018 maintenance of social and public order. No freedom can be absolute or completely unrestricted. So, under Article 19(2) , the State may make a law imposing reasonable restrictions on the exercise of right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency, morality, sovereignty and integrity of India or incitement to an offence. The expression used in Article 19(2) " in the interests of" furnishes a wide amplitude to the permissible law, which can be enacted to impose reasonable restrictions on the right guaranteed by Article 19 (1)(a) under one of the heads mentioned in Article 19 (2). A glance at the grounds contained in Article 19(2) goes to show that they are all conceived in national interest or in the interest of society. The first set of grounds, viz., sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order - are all grounds referable to national interest; whereas the second set of grounds, viz., decency, morality, contempt of Court, defamation and incitement to offence, are all conceived in the interest of society.

25. Article 19(2) uses two concepts: 'public order' and 'security of state'. The concept of 'public order' is wider than 'security of state'. As the Supreme Court points out, in Article 19 (2) , there exist two expressions 'public order' and OWP no.351/2018 Page 28 of 68 MP no.01/2018 'security of state'. Thus, 'security of state' having been specifically and expressly provided for, "public order cannot include the security of state, though in its widest sense it may be capable of including the said concept. Therefore, in clause (2), public order is virtually synonymous with public peace, safety and tranquillity". The term 'public order' covers a small riot, an affray, breaches of peace, or acts disturbing public tranquillity. But 'public order' and 'public tranquillity' may not always be synonymous. A restriction under Article 19(2) can be imposed 'in the interests of' public order, etcetera. The expression 'in the interest of' gives a greater leeway to the legislature to curtail freedom of speech expression, for a law penalising activity having tendency to cause, and not actually causing public disorder, may be valid as being 'in the interests of' public order. A legal provision making penal speeches or expressions on part of an individual which incite or encourage commission of violent crimes such as murder, would be valid as these speeches or expressions cannot but undermine the security of the State. Section 295A of Indian Penal Code penalises a person who with deliberate and malicious intention, by words either spoken or written, or by visible representations, insults or attempts to insult religious beliefs of any class. The constitutional validity of the provision was challenged, but OWP no.351/2018 Page 29 of 68 MP no.01/2018 the Supreme Court did not do so. The Supreme Court in Ramji Lal Modi v. State of Uttar Pradesh , AIR 1957 SC 650, ruled that Section 295A makes criminal only graver types of conduct involving insults to religion or religious beliefs. The provision penalises not every act of, or attempt to, insult religious beliefs of a class of citizens, but only those aggravated forms of insult to religion which are perpetrated with deliberate and malicious intention of outraging religious feelings of a class of citizens.

26. In a landmark decision in Bharat Kumar K. Palicha v. State of Kerala , AIR 1997 Ker 291, a Full Bench of the Kerala High Court has declared "Bandhs" organised by political parties from time to time as unconstitutional being violative of fundamental rights of the people. The Court refused to accept it as an exercise of the freedom of speech and expression, as has been tried to show in the present case by petitioner. When a bandh is called, people are forced not to travel, not to carry on their trade, not to attend to their work. A threat is held out either expressly or impliedly that any attempt to go against the call for bandh, may result in physical injury. A call for bandh, thus, causes destruction of public property. Accordingly, the High Court directed that a call for a bandh by any association, organisation or political party and enforcing of that call by it, was illegal and unconstitutional. The High Court also directed the State OWP no.351/2018 Page 30 of 68 MP no.01/2018 and all its law enforcement agencies to do all that may be necessary to give effect to the Court order. The Supreme Court dismissed the appeal against the aforementioned High Court decision. The Supreme Court refused to interfere with the High Court decision. The fundamental rights of the people as a whole cannot be regarded as subservient to a claim of fundamental right of an individual, or of a section of the people. Same is true que present case.

27. The Supreme Court has declared the reason why bandh should be banned. The Supreme Court has in James Martin v. State of Kerala (2004) 2 SCC 203, held that in the name of Hartal or Bandh or strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty, property of any citizen or destruction of life and property, and the least any government or public property. The Supreme Court pointed out that it was high time that the authorities concerned should take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh. The Supreme Court has categorically made it clear that those who at times may have even genuine demands to make, should not loose sight of overall situation eluding control and reaching unmanageable bounds endangering life, liberty and property of citizens and public, enabling antisocial forces to OWP no.351/2018 Page 31 of 68 MP no.01/2018 gain control, resulting in all around destruction with counterproductive results at the cost of public order and public peace. No person has any right to destroy another's property in the guise of bandh or hartal or strike, irrespective of proclaimed reasonableness of cause or question whether there is or was any legal sanction for the same. The case at hand as well is one which has led to the destruction of property and loss of lives, because of irresponsible and illegal acts in the name of bandh or hartal or strike. Unless those who organize can be confident of enforcing effective control over any possible turn of events, they should think twice to hazard themselves into such risk prone ventures endangering public peace and public order. The question whether bandh or hartal or strike has any legal sanctity is of little consequence in such matters. All the more so when the days are such where even law-enforcing authorities/those in power also precipitate to gain political advantage at the risk and cost of their opponents. Unless such acts are controlled with iron hands, innocent citizens are bound to suffer and they shall be the victims of the highhanded acts of some fanatics with queer notions of democracy and freedom of speech or association. That provides for no license to take law into their own hands. Any soft or lenient approach for such offenders would be an OWP no.351/2018 Page 32 of 68 MP no.01/2018 affront to rule of law and challenge to public order and peace. Again, same is true about present case.

28. Now, after above discourse, have a glimpse of Article 21 of the Constitution. It lays down that no person shall be deprived of his life or personal liberty except according to 'procedure established by law'. The most important expressions in this provision are procedure established by law. Immediately after the Constitution became effective, the question of interpretation of these words arose in the famous case of A. K. Gopalan v. State of Madras AIR 1950 SC 27, where validity of Preventive Detention Act, 1950 , was thrown to challenge. The main question was whether Article 21 envisaged any procedure laid down by a law enacted by a legislature or whether procedure should be fair and reasonable. On behalf of A. K. Gopalan, an attempt was made to persuade the Supreme Court to hold that the Courts could adjudicate upon reasonableness of Preventive Detention Act , or for that matter any law depriving a person of his personal liberty, as is being tried and attempt in the case in hand. A three-pronged argument was developed for this purpose:

Thus, in A. K. Gopalan 's case (supra), an attempt was made to win for a detenu better procedural safeguards than were available to him under the relevant detention law and Article 22. But the attempt failed as the Supreme Court rejected all these arguments. The Supreme Court ruled by majority that the word 'law' in Article 21 could not be read as meaning rules of natural justice. These rules were vague and indefinite and the Constitution could not be read as laying down a vague standard. Nowhere in the Constitution the word 'law' was used in the sense of abstract law or natural justice. The word 'law' was used in the sense of lex (state made law) and not jus. The expression 'procedure established by law' would, therefore, mean procedure as laid down in an enacted law.

29. The case of Maneka Gandhi v. Union of India AIR 1978 SC 597, is a landmark case of post emergency period. This case shows how liberal tendencies have influenced the Supreme OWP no.351/2018 Page 34 of 68 MP no.01/2018 Court in the matter of interpreting fundamental rights, particularly Article 21. A great transformation has come about in the judicial attitude towards the protection of personal liberty after the traumatic experiences of the emergency during 1975-77, when personal liberty had reached its nadir. A 2009 judgement render in Suchita Srivastava v. Chandigarh Administration reported in (2009) 9 SCC 1, reasserts that strict boundaries of 'personal liberty' cannot be identified but at the same time mandates that such liberty must also accommodate public interest.

30. Article 22 of the Constitution is one of the groups of Articles in Part III (Fundamental Rights) of the Constitution of India, which have been collected together under the sub- heading Right to Freedom. The subject-matter of the Article is personal liberty. This Article proceeds to guarantee certain fundamental rights to every arrested person. These rights being guaranteed by the Constitution are of a higher status than rights which are merely conferred by the ordinary law and have no such constitutional guarantee. In fact, Article 22 did not exist in the Draft Constitution. It was added towards the end of the deliberations of the Constituent Assembly. Because the Article 21 had been violently criticised by the public outside as Parliament was being given carte blanche to make and provide for the arrest of any person under any circumstances. Article 22 provides:

31. From the combined reading and interpretation of Articles 21 and 22 of the Constitution, it emerges that no citizen in this country shall be detained or deprived of his liberty without compliance of the provisions of law and the Constitutional guarantees as enshrined in Part-III of the Constitution of India. Some of the rights arising and flowing out of the aforesaid constitutional provisions admitted and acknowledged by different Courts in the country are that:

32. In India, preventive detention was introduced for the first time in the year 1818 by Bengal State Prisoners Regulations 3 of 1818. The Government of India Act, 1935 , also encompassed provisions of preventive detention. The Act empowered Federal as well as Provincial Legislatures to enact Laws providing for preventive detention. The Federal Legislature had legislative powers with respect to matters contained in Entry I of List I and the Provincial Legislature over the matters contained in Entry I List II. Though some members of Constituent Assembly, who framed the Indian Constitution, were victims of preventive detention during British rule over India, particularly during World War second, still the provisions concerning preventive detention were included in Indian Constitution. The need to keep such provision in the Constitution was felt due to the violence, which had erupted on the partition of India. The object of the framers of the Constitution in giving a constitutional OWP no.351/2018 Page 38 of 68 MP no.01/2018 status to preventive detention was aiming at to squelch anti- social, anti-national and subversive elements from imperilling the welfare of the Republic.

33. So far as the State of Jammu and Kashmir is concerned, the State Legislature is competent to enact prevention detention laws. The reason being that by virtue of Article 370 of the Constitution of India, various provisions of the Indian Constitution apply in relation to the J&K State, however, subject to such exceptions and modifications as the President may specify. The President of India has issued "The Constitution (Application of Jammu and Kashmir) Order, 1954" and extended various provisions of the Constitution of India, to the State. Entry 9 of the Union List and Entry 3 of the Concurrent List under which preventive detention laws can be made by the Parliament, do not apply to the State of J&K. The residuary powers also lie with the State Legislature. Article 22(4) and (7) apply to the State of J&K with modification that in place of law made by the Parliament, the law made by the State Legislature is substituted. Thus, it is the State Legislature and not the Parliament, which has powers to enact laws qua preventive detention.

34. It was in the year 1964 that with the aim of consolidating the law apropos of detention in certain cases and to take care of matters connected therewith, "The Jammu and Kashmir OWP no.351/2018 Page 39 of 68 MP no.01/2018 Preventive Detention Act, 1964 ", was passed by Sadar-i- Riyasat under Act No.XIII of 1964, which came to effect on 22nd October 1964. The life of this Act was up to 8th of May 1974. Thereafter an Ordinance "The Jammu and Kashmir Public Safety Ordinance" was issued in 1977, which was replaced by the Jammu and Kashmir Public Safety Act, 1978 , which too has been amended from time to time and is still in vogue. Apart from this, " Jammu and Kashmir Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1988 ", was enacted to provide for detention in certain cases for purpose of prevention of black marketing and maintenance of essential supplies of commodities essential to the community and for matters connected therewith. In the same year another Act, namely, the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 , was also enacted to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substance and combating abuse of such drugs and substances and for matters connected therewith.

35. Similarly in order to provide for preventive detention in certain cases for purpose of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith and whereas having OWP no.351/2018 Page 40 of 68 MP no.01/2018 regard to persons by whom and the manner in which such activities or violations are organised and carried on, and given the fact that in certain areas, which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude, are clandestinely organised and carried on, it was necessary for effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 , was enacted by the Parliament which came into force on 19th December 1974, throughout whole of India including Jammu and Kashmir State.

36. In the situation of communal disharmony, social tension, extremist and secessionist activities and increasing tendency on the part of various interested parties to engineer agitation, distress and turmoil on different issues, it was considered necessary that the law and order situation in the State is tackled in a most determined and effective way. The antisocial and antinational elements including secessionists, communal and pro-cast elements and also other unscrupulous elements that adversely influence and affect the services essential to the community, post a grave challenge to lawful authority and sometimes even hold society to ransom. Considering complexity and nature of problems, particularly concerning security, defence, public OWP no.351/2018 Page 41 of 68 MP no.01/2018 order and services, essential to the community, it was considered view of the State Government that the administration would be greatly handicapped in dealing effectively with the same in the absence of powers preventive detention. Thus, the Jammu and Kashmir Public Safety Act was enacted by the State Legislature in the year 1978, whereas assent of the State Governor was received on 8th April 1978, and came into force in whole of the Jammu and Kashmir State w.e.f. Eighth April 1978, i.e. the date when it was published in the official Gazette. By coming into force of Act of 1978, J&K Public Safety Ordinance, 1977, was repealed. However, notwithstanding such repeal anything done or any action taken, including any rule or order made, under the said Ordinance, shall, so far as consistent with the provisions of this Act, be deemed to have done or taken under the corresponding provisions of the Act. The object of preventive detention is not to punish for having done something illegal but to intercept him before he does it and to prevent him from abusing his freedom. The object of preventive detention is not punitive but only preventive. It is resorted to when the Executive authority is convinced that such detention is necessary in order to prevent the person (to be detained) from acting in any manner, inter alia, prejudicial to security of the State or maintenance of public order.

37. It is evident that power of preventive detention was conferred by the Constitution in order to ensure that the security of the country and welfare of its people are not put in peril. So long as a law of preventive detention operates within the general scope of the affirmative words used irrespective of entries in the Union and Concurrent Lists, which give that power and so long it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. But the liberty of the individual has to be subordinate, within reasonable bounds, to the good of the people. Therefore, acting in public interest, the Constituent Assembly made provision in Entry 9 of List I and Entry 3 of List III, authorizing the Parliament and the State Legislatures by Article 246 to pass laws of preventive detention. These lists read thus: Entry 9 List I: Preventive detention for reasons connected with defence, Foreign affairs, or the security of India; persons subjected to such detention.

Entry 3 List III: "Preventive detention for reasons connected with security of a State, the maintenance of public order, or maintenance of supplies and services essential to the community; persons subjected to such detention". The practical need and reality of laws of OWP no.351/2018 Page 43 of 68 MP no.01/2018 preventive detention find concrete recognition, as iterated herein above as well, in the provisions of Article 22 of the Constitution. Laws providing for preventive detention are expressly dealt with by that Article and their scope appropriately defined. The established Courts of justice, when a question arises whether the prescribed limits have been exceeded, must necessarily determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.

38. Right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India , (1978 AIR SC 597), is to be just and fair. 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 trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring OWP no.351/2018 Page 44 of 68 MP no.01/2018 home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(3)(b) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. It is important to be seen that what is aim and object of Article 22(3)(b) and why it has been incorporated in the Constitution. The aim and object thereof are to protect and save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. Same is true qua present case.

In such a case it would be dangerous for the people at large, in the present case are citizens and subjects of J&K State, to wait and watch as by the time ordinary law is set in motion, a person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent a person, bent upon to perpetrate mischief, from translating his ideas into action. Article 22 of the Constitution of India therefore leaves scope for enactment of preventive detention law.

39. 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 likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha v. State of W.B. (1975) 3 SCC 198, points out that 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 the Act, to prevent.

40. It is long back that an eminent thinker and author, Sophocles, had to say: "Law can never be enforced unless fear supports them." This statement was made centuries back, but it has its relevance, in a way, with enormous vigour, in today's society more especially to present case. Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type OWP no.351/2018 Page 46 of 68 MP no.01/2018 of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind individual actions, which are perceived as flaws by large body of people, but, truth is and has to be that when law withstands the test of constitutional scrutiny in a democracy, individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending on the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. Acts or activities of individual or a group of individuals, prejudicial to the security of the State, have magnitude of across-the-board disfigurement of societies. No court should tune out such activities, being won over by passion of mercy. It is the obligation of the court to constantly remind itself the right of society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out. In the present OWP no.351/2018 Page 47 of 68 MP no.01/2018 case, as recapitulated herein above, detenu is involved in less or more 50 cases-FIRs.

41. Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee safeguard to detenu to be informed, as soon as may be, of grounds on which order of detention is made, which led to the subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenu is to be furnished with sufficient particulars to enable him to make a representation, which on being considered, may obtain relief to him. Detention record, made available by learned counsel for respondents, reveals that detention order was made on proper application of mind, to the facts of the case and detenu was delivered at the time of execution of detention order the material and grounds of detention and also informed that he had a right to represent against his preventive detention. In the present case, detention record produced by learned counsel for respondents, on its glimpse, more particularly overleaf of detention order, divulges its execution and it comes to fore therefrom that in compliance to detention order, one S. I. Khursheed Ahmad 261-PAU, 11550-EXK of P/S Handwara, took custody of detenu from Police Station Kralgund on 15th November 2017, for execution of detention warrant at Central Jail, OWP no.351/2018 Page 48 of 68 MP no.01/2018 Jammu, Kotbhalwal. It also reveals that notice of detention has been given to detenu and contents of detention warrant read over to detenu in English and explained him in Kashmiri language, which he understood fully; in lieu whereof, his signature has been obtained overleaf detention order. As many as 30 leaves, comprising detention order, grounds of detention and other material, relied upon by detaining authority, has been supplied to detenu. He is shown to have been informed that he may make a representation to the government and detaining authority against detention order, if he so desire. The grounds of detention are definite, proximate and free from any ambiguity. The detenu has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made the authority to exercise its powers under Section 8 of J&K Public Safety Act 1978 and record subjective satisfaction that 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.

42. Learned counsel for petitioner has also painstakingly stated that the allegations in grounds of detention are vague and cases and instances mentioned in grounds of detention have no nexus with detenu and have been managed by police to OWP no.351/2018 Page 49 of 68 MP no.01/2018 rationalise its illegal action in detaining detenu. It may not be out of place to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person.

Momentary look of detention record produced by learned counsel for respondents pertaining to detention of detenu passed by District Magistrate, Kupwara, unveils that detenu is an active member of Hurriyat Conference Group (G) and is a staunch supporter of secessionist ideology, seeking cessation of the State of J&K from the Union of India. Detenu is shown to have organised a group in the name of Muslim League, which is headed by detenu himself. His activities are said to have caused huge 'loss of life and property', particularly during 2008, 2010 and 2016. Detenu has been shown issuing protest calendars, which caused huge loss to the State in terms of revenue as common people and employees were not able to earn their livelihood due to these protests organised by detenu and his associates, and forced people to adhere to the same forcibly, through stone pelting. Detenu is shown to have been arrested in connection with case FIR no.30/2015 for commission of offences punishable under Section 124A, 147 RPC, 13 ULA Act P/S Kralgund and there had been apprehension that in the event he was released on bail he may once again disturb OWP no.351/2018 Page 50 of 68 MP no.01/2018 peace and tranquillity of general public and continue with his antinational activities. Detenu, as is discernible from grounds of detention, will persist his efforts to create situation of chaos in the area in particular, and the Valley in general. Thus, it is deducible from detention record that there was material before detaining authority to come to conclusion and hence, it cannot be said that subjective satisfaction of detaining authority was wrongly arrived at or grounds of detention are self-contradictory or vague. Detenu's role has been specifically described. Even otherwise it is settled law that power of this Court in proceedings under Article 226 of the Constitution is limited to scrutinizing whether detention order has been passed on material placed before detaining authority inasmuch as this Court cannot go further and examine sufficiency of material. This Court does not sit in appeal over decision of detaining authority. This Court cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object, which the legislation has in view, that is, to prevent detenu from engaging in activities prejudicial to security of the State or maintenance of public order. In this regard I am fortified by law laid down by the by the Supreme Court in OWP no.351/2018 Page 51 of 68 MP no.01/2018 State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216; State of Punjab v. Sukhpal Singh (1990) 1 SCC 35; Union of India v. Arvind Shergill (2000) 7 SCC 601; Pebam Ningol Mikoi Devi v. State of Manipura , (2010) 9 SCC; and Subramanian v. State of T.N. (2012) 4 SCC 699.

43. It is germane to mention that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person. Power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. Pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Both are independent; both are not subservient to each other. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order. The Constitution Bench of the Supreme Court in Haradhan OWP no.351/2018 Page 52 of 68 MP no.01/2018 Saha 's case (supra), while considering various facets concerning preventive detention, observed:

44. What emerges from above dictum is that power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding and it does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. It is, OWP no.351/2018 Page 54 of 68 MP no.01/2018 thus, well settled law that Article 14 is inapplicable as preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act and in preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. In view the aforesaid background, in the present case it cannot be denied that detenu has to his credit as many as 50 criminal cases (FIRs). What are contended/ alleged in these cases need no exposition. Prejudicial activities therein have been ascribed to detenu, which have resulted in lodgement and registration of those FIRs. Such activities are not for interest of social fabric or Nation's integrity and sovereignty muchless public order or security of the State. Those activities are, obviously, detrimental, and not fruitful, for the society. Having said that, impugned detention order need not be interfered with.

45. Learned counsel for the petitioner has strenuously stated that offences, if any, alleged against detenu can be dealt with under ordinary law of land and recourse to detention laws is not warranted and that preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. Said contention of learned counsel is specious. Merely because a detenu is liable to be tried in a OWP no.351/2018 Page 55 of 68 MP no.01/2018 criminal court for commission of a criminal offences or to be proceeded against for preventing him from committing offences dealt with in the Code of Criminal Procedure , as held by the Supreme Court in Borjahan Gorey v. State of W.B. AIR 1972 (2) SCC 550; Ashim Kumar Ray v. State of W.B. 1973 (4) SCC 76; Abdul Aziz v. District Magistrate, Burdwan 1973 (1) SCC 301; and Debu Mahato v. State of W.B. 1974 (4) SCC 135, would not by itself debar the government to take an action for his detention. The scheme of the Act, besides object and purpose of bringing the Act of 1978 on the Statute book, clearly showed that in view of prevailing situation in the country, need was felt for urgent and effective preventive action in the interest of national security The preventive detention provided by the Act is apparently designed to deal urgently and effectively with the more serious situation, inter alia, affecting the security of India and the maintenance of public order. The liability of the detenu also to be tried for commission of an offence or to be proceeded against under Chapter VIII of the Code of Criminal Procedure which deals with prevention of less serious disturbances and requires execution of bonds on the basis of the acts disclosed in the grounds do not in any way as a matter of law, affect or impinge upon the full operation of the Act. The reason is obvious. Judicial trial for punishing OWP no.351/2018 Page 56 of 68 MP no.01/2018 the accused for the commission of an offence as also preventive security proceedings in a criminal court against a person merely for keeping the peace or for good behaviour under the Code of Criminal Procedure is a jurisdiction distinct from that of detention, which has, in essence, object of preventing detenu from acting in any manner prejudicial, inter alia, to the security of the State or maintenance of public order. The fields of these two jurisdictions are not coextensive nor are they alternative. The jurisdiction under the Act may be invoked, when available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repletion of past conduct which would be prejudicial, among others, to the security of the State or maintenance of public order or even when the witnesses may be frightened or scared of coming to a court and deposing about past acts on which the opinion of the authority concerned is based. This jurisdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction. The jurisdiction for trial or for preventive proceedings under the Code of Criminal Procedure cannot be successfully be invoked in such a situation. In other words a case under the Code of Criminal Procedure whether punitive or preventive depends on the OWP no.351/2018 Page 57 of 68 MP no.01/2018 proof of objective facts which have already taken place whereas a case under the Act providing for preventive detention depends on subjective satisfaction of authorities concerned of likelihood of the person to be detained to act in future in a manner similar to the one seen from his past acts. The authorities mentioned the Act, which include the District Magistrate has been held as best suited to decide whether it is necessary to proceed under the Act which decision rests on his subjective satisfaction. It was also held that grounds of detention relate to past acts on which opinion as to likelihood of repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to how and why subjective satisfaction has been arrived at so as to enable him to represent against them. The Supreme Court has also held that the fact, therefore, that a prosecution under the Code could also have been launched is not a valid ground for saying that it precludes the authority from acting under the Act.

46. 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. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127.

47. The Supreme Court in the case of Debu Mahato (supra), has observed that while ordinarily-speaking one act may not be sufficient to form the 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. (supra). It was only a case of theft of railway signal material. Here too "one act was held to be sufficient". Similarly, in Israil SK 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's (supra), 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." 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 OWP no.351/2018 Page 59 of 68 MP no.01/2018 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 the 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 apprehended with arms and ammunition, it was held 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.

48. If one looks at the acts, the J&K Public Safety Act, 1978, is designed for, is to prevent, they are all these acts that are prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not OWP no.351/2018 Page 60 of 68 MP no.01/2018 necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The said views and principles have been reiterated by the Supreme Court in Gautam Jain v. Union of India another AIR 2017 SC 230. The judgements referred to and relied upon by learned counsel for petitioner to buttress the case set up by petitioner, in view of above discussion, would not render any aid and assistance to the case of petitioner inasmuch as the facts and circumstances of aforesaid cases/judgements, relied upon, are distinguishable from the case in hand.

49. A law of preventive detention is not invalid because it prescribes no objective standard for ordering preventive detention, and leave the matter to the subjective satisfaction of the executive. The reason for this view is that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects which the law of preventive detention seeks to prescribe. Preventive detention is, thus, based on suspicion or anticipation and not on proof. The responsibility for security of the State, or maintenance of public order, or essential services and supplies rests on the Executive and it must, therefore, have the necessary power to order preventive detention. The subjective satisfaction of a detaining authority to detain a person or not is not open to objective assessment by a Court.

A Court is not a proper forum to scrutinise 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. The Supreme Court has stated that "when power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision which cannot be described as either irrational or unreasonable; in the sense that no person instructed in law could have reasonably taken that view, then the order is not bad and the court cannot substitute its decision or opinion, in place of the decision of the authority concerned on the necessity of passing the order".

50. The Courts do not even go into the question whether the facts mentioned in the 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 it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board.

51. Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires. Preventive detention is devised to afford OWP no.351/2018 Page 62 of 68 MP no.01/2018 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. Justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence. Thus, any preventive measures, even if they involve some restraint or hardship upon individuals, as said by the Supreme Court in Ashok Kumar v. Delhi Administration and others AIR 1982 SC 1143, do not partake in any way of the nature of punishment. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose. Same is the position in present case as well.

52. Vehement contention of learned counsel for petitioner is that impugned detention order is in continuation to earlier detentions, quashed by this Court, inasmuch as same set of story and facts have been made use of by detaining authority while slapping impugned detention upon detenu. The said submission of learned counsel is specious and hollow. The reasons being: impugned detention order has been passed by District Magistrate, Kupwara and not by respondent no.2 (District Magistrate, Srinagar); preceding two quashed-

detention orders had been passed by District Magistrate, Baramulla. Thus, there is no resemblance between impugned order and detention order(s) quashed immediately therebefore. Otherwise also, in the present case, it is not that detenu, after first, second, third, fourth, fifth, sixth or say tenth detention order was quashed or same number and/or more numbers of FIRs were lodged against him, repented for his activities and came on right track as a normal citizen of India but he, as is discernible from detention record, remained following ideology of secessionism, extremism and fanatism, which is evident from as many as 50 FIRs lodged and registered against him. It is not once in a blue moon, but it is 50 times that 50 FIRs registered vis-à-vis loss of life and property, which, therefore, cannot be said as an exception, but indoctrination, abetment and instigation of budding youth to enter the era of uncertainty.

53. Apart from what has been discussed above, extremism, radicalism, terrorism have become the most worrying features of the contemporary life. Though violent behaviour is not new, the contemporary extremism, radicalism, terrorism in its full incarnation have obtained a different character and poses extraordinary threats to civilized world. The basic edifices of a modern State, like - democracy, State security, public order, rule of law, sovereignty and OWP no.351/2018 Page 64 of 68 MP no.01/2018 integrity, basic human rights, etcetera, are under attack of such extreme, radical and terror acts. Though phenomenon of extremism, radicalism, fanatism or terrorism is complex, a terrorist or such like an act is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not.

54. Paul Wilkinson, an authority on terrorism related works, culled out five major characteristics of terrorism. They are:

55. In all acts of extremism, fundamentalism or terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct target of violence but also by exposing them to a sense of insecurity. The Supreme Court in this background held in Mohd Iqbal M. Shaikh v. State of Maharashtra , (1998) 4 SCC 494, that:

56. Our country is victim of an undeclared war by the epicentres of terrorism, radicalism, secessionism and extremism with the aid of well-knit and resourceful outfits and organizations, engaged in secessionist, terrorist and radical activities in different States, such as Jammu and Kashmir, North-East States, West Bengal, Tamil Nadu, Andhra Pradesh. It is not necessary to swell the incidents happening throughout the country by narrating all the episodes of extremist, terrorist, fanatical activities that the country witnesses. These acts and activities are meant to destabilize the Nation, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected governments, to promote prejudice and bigotry, to demoralize security forces, to thwart economic progress and development and so on and so forth. This cannot be equated with a usual law and order problem within a State. Fight against overt and covert OWP no.351/2018 Page 66 of 68 MP no.01/2018 prejudicial acts is not a regular criminal justice endeavour. Rather it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, secessionist, extremist and terrorist activities are challenge for law enforcement. By indulging in such activities, organized groups and/or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements are trying to destabilize the country. This new breed of menace was hitherto unheard of. Extremism, fanatism, terrorism is definitely a criminal act, but it is much more than mere criminality. Today, the government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within borders.

57. The threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country may take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover ramifications. It is therefore difficult OWP no.351/2018 Page 67 of 68 MP no.01/2018 in the present context to draw sharp distinctions between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. Anti- fanatism, anti-extremism, antiterrorism activities in the global level are mainly carried out through bilateral and multilateral cooperation among nations. It has, in such circumstances, become our collective obligation to save and protect the State and its subjects from uncertainty, melancholy and turmoil.

58. For the foregoing discussion and reasons, the petition sans any merit and is, accordingly, dismissed.

59. Detention record be returned to learned counsel for respondents.