1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP no.127/2023 Reserved on: 29.05.2025 Pronounced on: 01.08.2025 Raja Ikhlaq Akbar alias Sabha ……. Petitioner (s) Through: Mr. Waseem Ramzan Lone, Advocate V/s Union Territory of J&K and ors. ………Respondent(s) Through: Mr Faheem Nissar Shah, GA CORAM: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Through the medium of this petition, the petitioner is seeking quashing of the Order No.16-DMK/PSA of 2023 dated 12.09.2023, passed by District Magistrate, Kupwara – respondent no.2 (detaining authority), whereby the detenu (Raja Ikhlaq Akbar @ Sabha), has been placed under the preventive detention to prevent him from acting in any manner prejudicial to the maintenance of security of State. 2. Reply Affidavit has been filed by the respondents. 3. I have heard the learned counsel for the parties. I gone through the detention record produced by the learned counsel for the respondents and considered the matter. 4. Assailing the impugned order, it is stated by counsel for petitioner that respondent no.2 was constitutionally duty bound to furnish all the relevant material to detenu, like copy of dossier and other connected documents which as per grounds of detention had been furnished to detaining authority by police and relying upon which detention order came to be passed, the material regarding allegations as mentioned in grounds of detention, so as to enable him to make an effective representation against his detention by giving his version of facts 2 attributed to him and make an attempt to dispel apprehensions nurtured by detaining authority concerning alleged involvement of detenu in alleged activities against the said order to competent authority. Since filing of an effective representation is a constitutional right and to enable detenu to file such a representation it is necessary to provide him copies of dossier, connecting documents and material and in the instant case respondent no.2 has not provided any such material to detenu, the material which has been furnished to detenu is not sufficient for making effective representation. The above contentions of counsel for petitioner are misconceived. The reason being that perusal of the detention record produced by the learned counsel for the respondents reveals that all the material that has been relied upon by the detaining authority while passing the order of detention has been furnished to the detenu to make an effective representation against his detention. Perusal of execution report and Receipt of grounds of detention reveals that detenu has been given all the material relied upon by the detaining authority to pass impugned order of detention, which consists of 30 leaves. He had even been informed to make the representation both to the Government and the detaining authority. Therefore, the detenu cannot be heard saying that he was not informed to whom representation was to be made against his detention. 5. The counsel for petitioner also submits that post detention, whatever material was available on the basis of same, petitioner submitted a representation before respondent no.2, but same was not considered in due course of law nor material as requested was furnished to detenu. Non-consideration of representation renders detention illegal and unconstitutional. This contention of counsel for petitioner is again misconceived. The reason being that the Report of the Advisory Board dated 26.09.2023, is on the detention record, which would reveal that the representation of nephew of the detenu, namely, Raja Kabir, has been considered by the Advisory Board and it has been found by Advisory Board that there is no substance in the representation and rejected it. 3 6. The counsel for the petitioner also states that the allegations as reflected in the grounds of detention are vague and do not justify passing of detention order on the basis of such allegations. Detaining authority has mentioned various allegations in the grounds of detention, but no specific allegation has been given regarding detenu in the case mentioned in the grounds of detention, not even an iota of connection is given in grounds of detention connecting the detenu with allegations. The very basis of satisfaction recorded by the detaining authority is vague, as such, the impugned order of detention suffers from complete non-application of mind on the part of detaining authority. Again, the above submissions of counsel for petitioner are unfounded. Perusal of grounds of detention reveals that exclusive subjective satisfaction has been reached on the basis of prejudicial activities pointed out in grounds of detention by the detaining authority. It is mentioned in grounds of detention that since teenage detenu indulged into drug trafficking on the instructions of his father, Ghulam Akbar Khan, who illegally crossed over to POJK in the year 1990 to obtain arms training and to join terrorist rank but chose to remain there as launching commander for terrorist organisation, Hizb-ul-Mujahideen and in 2013 detenu’s brother, namely, Raja Zahoor Akbar, also exfiltrated to POJK on insistence of his father to actively work for terrorist outfit, HM, and subsequently the detenu emboldened to expand his smuggling syndicate. It is also mentioned in grounds of detention that detenu not only actively involved in narcotic trade but was in regular touch with father and brother through end-to-end encrypted applications for promotion of terrorist activities of proscribed terror outfit HM. It is also made mention of in grounds of detention that while some portion of detenu’s illegal activities had been documents and case FIR no.11/2023 under Section 8A/27B, 29 NDPS Act of police station Karnah had been registered, for acquiring disproportionate property acquired through illegal sale of drugs etc., a large portion of his illegal activities including his discreet participation in narco-terror related activities though clandestinely could not be formally documents in the records of police due to detenu’s stealthily techniques and in order to prevent the detenu 4 from such activities which posed direct threat to security of the State, the preventive measures were taken against the detenu from time to time, but after every release he had been given many chances and guidance with the hope that he would lead a normal life instead of that he got more confidence and misused his liberty and again indulged in unlawful/antinational activities. 7. 7. The Supreme Court in the case of Debu Mahato v. State of W.B. (1974) 4 SCC 135, has categorically observed and said that while ordinarily- speaking one act may not be sufficient to form requisite satisfaction, there is no such invariable rule and that in a given case “one act may suffice”. That was a case of wagon-breaking and given the nature of the Act, it was held therein that “one act is sufficient”. The same principle was reiterated in the case of Anil Dely v. State of W.B. (1974) 4 SCC 514. It was only a case of theft of railway signal material. Here too “one act was held to be sufficient”. 8. Similarly, in Israil S K v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310, a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this: “Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity.” 9. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court. Similarly, where a person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, as in the present case detenu has been found 5 continuously indulging in prejudicial activities since 2018, 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. 10. Another contention of counsel for petitioner is that grounds of detention are verbatim copy of police dossier which clearly shows that detaining authority has not applied its mind to the available material but has made detention order mechanically. This contention of counsel for petitioner is misconceived. The detaining authority has given and made the grounds of detention on the basis of the material produced before it by the sponsoring agency and after deriving subjective satisfaction has passed the order impugned. 11. It may be further added here that the responsibility for the security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order the preventive detention. Thus, the subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. The Court is not a proper forum to scrutinize merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not. It is often said and held that the Courts do not even go into the question whether the facts mentioned in grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the Courts and that is not the policy of law of preventive detention. This matter lies within the competence of Advisory Board. It is evident from perusal of report of Advisory Board that it has considered the case of petitioner and rejected the representation of the nephew of the detenu. 12. Section 8 (1) of the J&K Public Safety Act, 978, provides that the Government may, if it is satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the security 6 of the State or the maintenance of public order, it is necessary so to do, make an order directing that such a person be detained. 13. In the present case, detaining authority has reported the fact about making of order of detention to the Government. I have gone through the detention record produced by counsel appearing for respondents which has been approved and confirmed by the competent authority. 14. In such circumstances, detaining authority had, immediately upon issuance of impugned detention order, reported the said fact to the Government and the Government approved impugned detention order. Thus, there is no hindrance in saying that provisions of Subsection (4) of Section 8 of the Act of 1978, have been strictly complied with by respondents. 15. Section 9 of the Act provides that detention order may be executed at any place in the manner provided for executing the warrants of the arrest. Section 10 of the Act provides that any person in respect of whom a detention order is made under Section 8 of the Act shall be liable to be detained in such a place and under such conditions including the conditions as to the maintenance of the discipline and punishment for the breaches of the discipline as the Government may specify and that any person placed under preventive detention shall be liable to be removed from one place of detention to another place of detention. Where a person has been detained in pursuance of detention order under Section 8 of the Act, made on the two or more grounds, such order of detention, as envisaged under Section 10-A of the Act, shall be deemed to have been made separately on each of such grounds and as a consequence whereof, such an order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person. 16. Section 13 of the Act provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as maybe, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him, in the language which is understandable to him, the grounds on which the order has been 7 made and shall afford him the earliest opportunity of making a representation against the order of detention. However, Subsection (2) of Section 13 provides that nothing in subsection (1) of Section 13 shall require the authority to disclose facts which it considers to be against the public interest to disclose. 17. In view of the Statutory and the Constitutional requirements to be followed by the respondents in the present case, as has also been noticed above, I have gone through the detention record produced by the counsel for the respondents. All the material relied upon by the detaining authority had been furnished to the detenu. He had been intimated to make a representation to both the Government and the detaining authority. 18. Article 22 (5) of the Constitution of India casts a dual obligation on the detaining authority, namely.: (i) To communicate grounds of detention to the detenu at the earliest; (ii) To afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible. 19. The Supreme Court has reiterated that the communication means bringing home to the detenu the effective knowledge of the facts and the grounds on which the detention order is based. To a person who is not conversant with the English language, in order to satisfy the requirement of the Constitution, must be given the grounds in a language which he understands and in a script that he can read, if he is a literate person. If a detained person is conversant with English language, he will naturally be in a position to understand gravamen of the charge against him and the facts and circumstances on which order of detention is based. So is the position in the present case. 20. The Constitution has guaranteed the freedom of movement throughout the territory of India and has laid down the detailed rules about the arrest and the detention. It has also, by way of the limitations upon the freedom of the personal liberty, recognised right of the State to legislate for preventive detention, subject to certain safeguards in favour of detained person, as laid down in Clauses (4) & (5) of Article 22. One of those 8 safeguards is that detained person has a right to be communicated the grounds on which order of detention has been made against him, in order that he may be able to make his representation against the order of detention. In the circumstances of instant case, it has been shown that detenu had opportunity, which the law contemplates in his favour, for making an effective representation against his detention. 21. In the present case, perusal of the detention record reveals that the Advisory Board has conveyed that the grounds of detention formulated by the detaining authority were sufficiently supported by the dossier/ material and that the grounds of detention and other relevant material were furnished to the detenu at the time of taking him into the detention and that the detenu was also informed about his right of making the representation against his detention. The Advisory Board considered the representation of the nephew of the detenu. After consideration, the Advisory Board rejected the representation of the nephew of the detenu. The report of the Advisory Board also reveals that all the requirements contemplated under the Act, have been complied with and no error of law or procedure, which would invalidate the detention, have been committed by the detaining authority and as an outcome thereof, the detention is in conformity with the principles as enshrined under Article 22(5) of the Constitution of India and the provisions of the Act. The Advisory Board has opined that there is sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. 22. For the reasons discussed above, the instant petition is dismissed. 23. Detention record be returned to the learned counsel for the respondents. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 01.08.2025 (Qazi Amjad, Secy)