S.No. 10 Regular List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 152/2024 SHAKIR NAZIR MALLA …Petitioner/ Appellant(s) Through: Mr. M. Tariq Shah, Advocate V/s UNION TERRITORY OF J AND K AND ORS. AND ORS. …Respondent(s) Through: Mr. Bikramdeep Sing, Dy AG with Ms. Naubahar, AC CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE. ORDER 06.03.2025 1. In the instant petition, the petitioner herein has challenged detention order No. 184-DMS/PSA/2024 dated 04/04/2024 (for short the impugned order) passed by the District Magistrate, Shopian-respondent 2 herein, under and in terms of the Provisions of the J&K Public Safety Act, 1978. 2. The impugned order has been challenged by the petitioner on the following grounds:- I. That the impugned order of detention suffers from the non-application of mind as the respondent No. 02 has passed the said order simply after relying upon the material provided to him by acting as a rubber stamp as no independent reasons have been given on passing of the said detention order by the respondent No. 02 as such the detention order being vague, cryptic and having being passed without following the principles of natural justice is liable to be set aside. II. That the impugned order of detention has been passed without any substantial material on mere information and without any basis and proof as its apparent from the order of detention as there being neither any information in the form of 1st information report with regard to any of the allegations pending before any police station nor there being any case of like nature being pending before any competent court of jurisdiction as such the order of detention has been passed on mere assumptions that too on the ground that petitioner may disturb the election process which is not at all a ground provided anywhere in the public safety Act. III. That the order of detention is vague, cryptic, baseless and without any substantial proof with regard to the allegations leveled besides no where the period of detention has been provided therein, making it clear as to for how long and what period the petitioner will remain under detention. IV. That the impugned order of detention has been procedure passed without following the established under law as the detenue has not been provided with the copy of detention order including the dossier / grounds of detention on the basis of which he has been ordered to be detained however, it is because of the efforts of the petitioner that he has been able to manage and obtain the copy of same as such the order having been passed against the principles of natural justice and without following the mandate and procedure established under law has violated the basic and fundamental rights of the detenue guaranteed under the Constitution of India. V. That the order of detention is unconstitutional and bad in law as the detaining authority has failed to follow the Constitutional and Statutory Safeguards including the procedure provided under Article 22 (5) of the Constitution of India as such and keeping in view, the law laid down by the Hon'ble Supreme Court in "Ibrahim Ahmad Bhatti alias Mohammad Akram Hussain alias Kandar Ahmad Wagharalais Iqbal alais Gulam Vs. State of Gujrat &Ors" reported in 1982) 3 SCC 440. VI. That the detaining authority has not attributed any specific allegations against the detenue accordingly, the vague allegations leveled being ipso facto insufficient and inconsistent with the Public Safety Act, hence, the grounds being bereft of specific details renders the order of detention vague and non-existent in the eyes of law. VII. That the detenue has not been furnished with the order of detention and other allied /connected documents which have swayed the mind of the detaining authority in passing of the detention order accordingly, the detenue having two fold and independent rights vis; right to be furnished with all the documents and subsequent right of representation against the order of detention, which rights having been violated renders the detention order bad in law for want of the procedural safeguards provided under Article 22 (5) of the Constitution of India as such and according to law laid down by the Hon'ble Supreme Court of India in Icchu Devi Choraria Vs. Union of India" reported in 1980) 4 SCC 531. VIII. That the detenue is not equipped with the legal language as such is not able to read write the said language hence, the detaining authority was under the Constitutional and legal duty to communicate the grounds of detention along with other connecting material which has swayed the mind of detaining authority in passing of the order of detention in Urdu or Kashmiri Language to the detenue or the translated script of the grounds of detention and other material accordingly, the dereliction of the said duty amounts non communication of grounds of detention which has deprived the detenue in filing of the representation against the order of detention as and in accordance of law laid down by the Hon'ble Supreme Court in LalubhaiJogibhai Patel Vs. Union of India" reported in 1981) 2 SCC 427 the impugned is liable to be set aside. IX. That the grounds of detention are vague, irrelevant and non-existent. The allegations are bereft of specific details and without any reference to the past conduct of the detenue. It is submitted that in the instant case, the grounds of detention do not indicate the detaining authorities satisfaction as the detenue's likelihood of committing one or the other acts indicated in the Public Safety Act when released from the Judicial custody, on the basis whereof preventive detention may be permissible. Since, the detention of the detenue has been ordered without recording, requisite satisfaction as to the existence of grounds contemplated by the provisions of Public Safety Act therefore, the same cannot sustain under law hence, detaining authority has failed in the grounds of detention to indicate any past conduct of the detenue which could have formed the basis for the passing of the detention order. X. That the detaining authority has failed to show and arrive at the satisfaction as to how the ordinary criminal law is not sufficient to deal and deter the detenue from indulging in the activities which are criminal in nature hence, the detention order being devoid of the compelling and cogent reasons deserves to be set aside. XI. That the order of detention is neither approved within the statutory period nor has any reference been made to the advisory board as mandated under law. The detenue has neither been heard by the Advisory Board either in person or through his counsel or next friend hence, for violation of said safeguards the detention order is bad in law. XII. That the detaining authority without following the procedures established under law by getting the detenue convicted against the FIR already registered has passed the impugned detention order to scuttle the process of law which amounts colorable exercise of powers as the respondent No. 02 is trying to achieve indirectly what it could not achieve directly which is not recognised under procedure. established under law. XIII. That there is no substantial proof of allegations nor the confession allegedly having been made by the detenue before the Police has been recorded properly under Section 164 Cr.P.C. nor any such confession having being made is valid as it been established law that confession recorded before Police is invalid accordingly in the instant case there being no confession recorded as all the detention order is vague based on false, frivolous and baseless grounds. XIV. That there are no criminal antecedents whatsoever formally recorded at any Police Station of District Shopian or any other investigating authorities which can suggest Anti National behaviour on part of the detenue in absence of which the impugned detention. order is untenable in the eyes of law. XV. That there is no proximate link between the grounds of detention and the prejudicial activities of the detenue besides, there being no substantial proof and long and unexplained delay or reasonable explanation besides when casual connection having been broken in the circumstances of the case the detention order is vague, cryptic and based upon imaginary grounds. XVI. That the detention cannot be a substitute of ordinary law and absolve the investigating authorities of their normal functions of investigating the crimes which the detenue is alleged to have committed. XVII. That there is no subjective satisfaction that preventive detention of detenue is necessary to prevent him from acting in any manner prejudicial to security of state and for want of said subjective satisfaction and proof the benefit of doubt will go to the detenue. XVIII. That the petitioner has been detained arrested prior to the detention order and it is only after his arrest the detention order has been executed. XIX. That the petitioner has filed his representation against the detention order same has not been considered which has violated the constitutional rights of petitioner. 3. Reply affidavit to the petition has been filed by the respondents, wherein the petition is being opposed on the premise that the dentition order under challenge in the petition is based on reasonable prediction of future behaviour, considering the detenue’s past conduct in the light of the surrounding circumstances and that there is a direct and immediate link between the detenue’s past conduct and his current or imminent future activities and that collective assessment thereof has lead the detaining authority to reach a subjective satisfaction for placing the detenue under preventive detention. It is being further stated that on account of the activities the petitioner was found to be involved in being antinational and prejudicial to the sovereignty and peace, the petitioner came to be detained by the detaining authority after carefully examining and perusing the material supplied to it and that the dentition order came to be executed on 12.04.2024, whereupon the petitioner was furnished the entire material relied upon by the detaining authority for his detention in lieu whereof the petitioner put his signatures on the execution report. It is further stated that the petitioner also came to be informed on 04.04.2024 about his detention, the grounds on the basis of which his detention was ordered as also that he has right to make a representation to the detaining authority or to the government against his detention. It is further stated that the Government after examining the dentition order and material placed before it on 30.05.2024 confirmed the dentition order after receiving the opinion of the Advisory Board dated 15.05.2024. Heard learned counsel for the parties and perused the record. 4. Before proceeding to advert to the case in hand, it is significant to mention here that the essential concept of the preventive detention is not to punish a person for something he has done, but to prevent him from doing so in future and that the preventive detention is used as a tool to safeguard public safety and security especially in situations where there is reasonable belief that an individual poses threat to either the Public Order or the Security of State. It is equally settled law that ordinary criminal process is not circumvented by taking recourse to preventive detention and the aim for taking recourse to preventive detention is based on the subjective satisfaction of the executive of a reasonable probability or likelihood of a person sought to be detained acting in a manner similar to his past acts and preventing him by detention from doing the same. It is also settled position of law that in the matter of preventive detention, the court’s interference with subjective satisfaction of the detaining authority is circumscribed, in that, the satisfaction being subjective in nature, if it is based on relevant grounds, cannot be interfered with, as the court does not sit or act as a court of appeal over the subjective satisfaction of the detaining authority. A Reference in this regard to the judgements of the Apex Court passed in “Naresh Kumar GoyalVs. Union of India and Ors. Reported in 2005 (8) SCC 276” and “Union of India Vs. Simply Happy Dhakadreported in AIR 2019 (20) SCC 609”, would be relevant. 5. Keeping in mind the aforesaid position of law and reverting back to the case in hand, the ground (i) of challenge urged by the petitioner in the instant petition is that the detention order suffers from non-application of mind, as the detaining authority has passed the order simply after relying on the material provided to it without having given any independent reason for passing the said detention order. 6. Perusal of the record available on the file however would reveal that the detaining authority before passing the impugned order has been furnished the material by the sponsoring agency pertaining to the petitioner and the detaining authority seemingly has considered the said material inasmuch as the facts and circumstances of the case, as also the nature of activities and propensity of the petitioner indulging in activities complained of, and has consequently passed the impugned order, after having derived subjective satisfaction thereof. 7. Insofar as the grounds (ii) and (iii) urged in the petition are concerned, the said grounds are vague and ambiguous, in that, as has been noticed in the preceding paras there seemingly has been sufficient material available with the detaining authority furnished to it by the sponsoring agency on the basis of which the detaining authority ordered preventive detention of the petitioner. Record reveals that the detaining authority has taken into consideration the activities attributed to the petitioner by sponsoring agency pertaining not only to the years 2022, 2023 and also to 2024 i.e.immediately before passing of the order under challenge and, thus, the ground urged that the order of detention is vague, cryptic and baseless and without any substantial proof with regard to the allegations levelled against the petitioner cannot be either entertained or accepted. Law is settled that the involvement of person sought to be detained in an FIR is not sine quo non for taking recourse to his preventive dentition. 8. Insofar as ground (iv) urged in the petition is concerned, perusal of the detention record reveals that post-issuance of the order of detention, the statutory and constitutional requirement and safeguards have been complied with by the respondents, be it furnishing of the material to the petitioner on the basis of which he came to be detained, or informing him about his right to make a representation against his detention. 9. Insofar as ground (v) urged in the petition is concerned, the said ground in essence is repetition of ground (iv) pertaining to the allegation of non-fulfilment and non-compliance of the statutory and constitutional safeguards, which, as has been noticed in the preceding paras, have been duly complied with and fulfilled by the respondents. 10. Insofar as ground (vi) urged in the petition is concerned that the detaining authority detained the petitioner on the basis of vague allegations being also insufficient and inconsistent with the Public Safety Act, and that the grounds are bereft of specific details rendering the detention order bad in the eyes of law, record available reveals that the grounds of detention have been drawn and framed by the detaining authority in tune with the provisions of the Act by referring to specific particulars and details of the activities attributed to the petitioner. 11. 11. Insofar as ground (vii) urged in the petition is concerned that the petitioner was not furnished the order of detention and other connected/allied material/documents rendering the petitioner incapable of making a representation, perusal of the detention record reveals that the petitioner stands furnished 13 leaves of the material comprising of warrant of detention, notice, grounds of detention (3 leaves)and copies of the report (7 leaves) being relevant material relied upon by the Detaining Authority. 12. Insofar as ground(viii) that the petitioner is not equipped with legal language and as such was not able to read and write the said language and that the petitioner was not explained the order of detention, grounds of detention and the material referred therein in Urdu & Kashmiri language, as such was rendered incapable of making an effective representation, is concerned,the execution report attached with the detention record manifestly reveals that the executing officer namely Nazir Ahmad SI No. 165/CID of P/S Zainapora on 12.04.2024 had explained to the petitioner the material furnished to him upon execution of the impugned order in Urdu and Kashmiri languages and the petitioner in lieu thereof has affixed his signature thereon on 12.04.2024 itself. 13. Insofar as the next ground urged in the petitionthat the grounds of detention are vague, irrelevant and non-existent is concerned, the said ground of challenge stands adverted to in the preceding paras, wherein it has been observed upon examination of the record that the grounds of detention drawn and framed by the detaining authority are specific, clear and unambiguous. 14. Insofar as next ground of challenge urged in the petition qua the failure of the detaining authority to arrive at satisfaction as to how ordinary criminal law was not sufficient to deal with and deter the petitioner from indulging in an activity criminal in nature, is concerned, the said ground as well cannot be accepted in view of the law laid down by the Apex Court in case titled as “Union of India & Ors. Vs. Arvind Shergill Supra” wherein it has been reiterated by the Apex Court that the court while dealing with the matter of preventive detention does not sit as a court of appeal over the subjective satisfaction of the detaining authority. 15. Insofar as rest of the grounds urged in the petition including that the impugned order was never approved by the Government or that no reference was made to the Advisory Board is concerned, the said plea as well stands adverted to in the preceding paras, as such, need not to be re-addressed. The rest of the grounds urged in the petition are essentially same and repetition of the grounds already adverted to hereinabove. 16. Viewed thus, for what has been observed, considered and analysed hereinabove, the detaining authority seemingly has passed the impugned order validly, legally and with complete application of mind and cannot by any stretch of imagination be said to have faulted in the matter. 17. Resultantly for the aforesaid reasons the petition is found to be lacking merit and is accordingly dismissed. 18. The detention record produced by the counsel for the respondents is returned back to the counsel for the respondents in the open Court. (JAVED IQBAL WANI) JUDGE SRINAGAR 06.03.2025 “S.Nuzhat” Whether the order is speaking: Yes Whether the order is reportable: Yes