J&K HC | ‘Subjective satisfaction of a detaining authority to detain a person is not open to objective assessment by a Courtʼ; Writ Petition dismissed 

Jammu and Kashmir High Court: Tashi Rabstan, J., while dismissing a criminal writ petition seeking to challenge the grounds preferred for detention, said, “A Court is not a proper forum to scrutinize the merits of administrative decision to detain a person.”

Brief Facts

Petitioner in the instant case was arrested in the first week of October, 2018, detained illegally for several days and thereafter was implicated in FIR No. 22 of 2018 under Sections 307 Ranbir Penal Code (“RPC”), Sections 7/27 of Arms Act, Sections 3/4 Explosive Substances Act and FIR No. 25 of 2018 under Sections 307 RPC, Sections 7/27 Arms Act by the Police Station, Pulwama. Subsequently, the petitioner was placed under preventive detention following the detention order of the District Magistrate, Pulwama. Aggrieved by the impugned order, and alleging that the said detention was devoid of any procedural safeguards under the Constitution of India as well as the J&K Public Safety Act, the petitioner has moved before this Court.

Contentions

The Counsel for the petitioner made the following contentions;

  1. That the grounds of detention are vague, equivocal, obscure, indefinite, not connected or not proximately with the detenu and are mere assertions of detaining
  2. That the case mentioned in grounds of detention has no nexus with detenu and has been fabricated by police in order to justify its illegal action of detaining the detenu.
  3. That the detaining authority has mentioned two FIRs in the grounds of detention, however, no specific details have been put on records mentioning date, month or place of occurrence.
  4. That the respondents have not provided copies of the documents referred to in the grounds of detention and relied upon by the detaining authority, enabling the detenu to make an effective representation.
  5. That the detenu, who was already in custody of police in respect of aforesaid FIRs, reflected no immediate possibility of being released on bail and that there was no compelling reasons given in grounds of detention for passing such order.

Observation

The Court made noticeable remarks, while citing settled precedents and related legislations on the said subject matter. It reiterated that the Right to personal liberty is most cherished right guaranteed under our Constitution and has been transcendental, inalienable to a person independent of the Constitution and further explained the objective, administrative limits & checks while exercising the Preventive Detention Laws.

  1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; A person is not to be deprived of his personal liberty except in accordance with the procedure established by law and such procedure must be just, fair and reasonable.
  2. Sasthi Chowdhary v. State of W.B., (1972) 3 SCC 826; “It is pertinent to mention here that preventive detention means detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure conviction of detenu by legal proof, but may still be sufficient to justify his detention.”
  3. Haradhan Saha v. State of W.B., (1975) 3 SCC 198; “While the object to punitive detention is to punish a person for what he has done, the object of preventive detention is not to punish an individual for any wrong done by him but curtailing his liberty with a view to preventing him from committing certain injurious activities in future. Punitive incarceration is after trial on the allegations made against a person whereas preventive detention is without trial into the allegations made against him.”
  4. State of Maharashtra v. Bhaurao Punjabrao, (2008) 3 SCC 613; “Preventive justice requires an action to be taken to prevent apprehended objectionable activities. The compulsions of primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose their entire meaning, are the true justifications for the laws of preventive detention. This justification has been described as a jurisdiction of suspicion and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty.”
  5. Abdul Latif v. B.K. Jha, (1987) 2 SCC 22; “Under Article 22(4)(a), preventive detention for over three months is possible only when an Advisory Board holds that, in its opinion, there is sufficient cause for such detention. The Advisory Board must report before the expiry of three months. If the report is not made within three months of the date of detention, the detention would become illegal.” In the present case, Advisory Board has furnished its Report disclosing sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the State Interest.

With respect to legislative safeguards, the Court referred and stated,

  1. Article 22(4) & 22(5) of the Constitution of India; detenu to be informed, as soon as may be, the grounds on which the order of detention is so made and further ensure the earliest opportunity of making representation by him against such order.
  2. Sections 8,9,10, 13 of the Public Safety Act, 1978.

Decision

While dismissing the petition on lack of merit, the Court said, “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 further said that the grounds of detention in the present matter are definite and free from any ambiguity as pleaded by the petitioners. Furthermore, the records placed for the Court’s perusal show that detenu has been informed with sufficient clarity, about the facts and figures of what actually convinced the detaining authority while passing such order.[Riyaz Ahmad Bhat v. State of J&K, 2020 SCC OnLine J&K 507, decided on 30-09-2020]

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