Preventive Measures Causing Restraint Do Not Amount To Punishment; Objective Only To Prevent Future Acts: J&K&L High Court
The Jammu & Kashmir and Ladakh High Court has held that preventive measures, even if they involve some restraint or hardship upon individuals, do not partake of the nature of punishment. The Court ruled that the object of preventive detention is not to punish a man for having done something but to intercept and prevent him from doing so, and that those responsible for national security...
The Jammu & Kashmir and Ladakh High Court has held that preventive measures, even if they involve some restraint or hardship upon individuals, do not partake of the nature of punishment. The Court ruled that the object of preventive detention is not to punish a man for having done something but to intercept and prevent him from doing so, and that those responsible for national security or maintenance of public order must be the sole judges of what such security or order requires.
The Court was hearing a habeas corpus petition challenging a detention order passed under Section 8 of the J&K Public Safety Act, 1978, by which the petitioner was detained to prevent him from acting in a manner prejudicial to the security of the State.
A Single Bench of Justice M. A. Chowdhary, while dismissing the petition and upholding the detention order, observed,
“... any preventive measures, even if they involve some restraint or hardship upon individuals, as held by the Supreme Court in the case Ashok Kumar v. Delhi Administration & Ors., AIR 1982 SC 1143, do not contribute in any way of the nature of punishment.”
Background
The petitioner, Mohammad Ashraf Sheikh, was detained vide Detention Order passed by the District Magistrate, Budgam, under Section 8 of the J&K Public Safety Act, 1978, to prevent him from acting in a manner prejudicial to the security of the State.
The petitioner assailed the detention order on multiple grounds, including that the grounds of detention were vague and mere assertions, that material documents were not provided to enable an effective representation, that he was not informed of his right to make a representation to the District Magistrate, and that the detaining authority had relied upon stale grounds.
The respondents contended that there was sufficient material against the detenue suggesting that normal law was not sufficient to prevent him from continuing with his anti-national activities, and that he was highly motivated and not likely to desist from unlawful activities.
The detention record revealed that the detenue was earlier apprehended in FIR under Sections 7/25 of the Indian Arms Act and Sections 13, 23, 39 of the Unlawful Activities (Prevention) Act and was released on bail. He was again apprehended in FIR under Sections 447, 323, 354 IPC. Thereafter, he was kept under preventive measures several times under Section 107/151 Cr.PC for his involvement in anti-national activities.
Court's Observation
The Court noted that the grounds of detention indicated that from 2022 till 2024, the detenue was kept under preventive measures for his involvement in criminal and anti-national activities. It was found that he was working as an over-ground worker of the proscribed outfit LeT. On 09.04.2022, during a search operation in the orchard land of Rathsun Beerwah, the petitioner was apprehended along with his associate, and one Chinese pistol, 12 live rounds, two pistol magazines and eight posters of LeT outfit were recovered.
After his release, the court noted that he was alleged not to have desisted from indulging in anti-national activities as in another FIR one lady had alleged that the petitioner along with two associates intruded into her courtyard, attacked her, tore her clothes and pulled her hair, thereby outraging her modesty.
The Court observed that “it is suggestive of the fact that the petitioner with his previous terror background has evolved criminal mindset and has been typically involved in the acts to threaten the general public.”
Referring to the Constitution Bench judgment of the Supreme Court in The State of Bombay v. Atma Ram Shridhar Vaidya (AIR 1951 SC 157) , the Court reproduced para-5 of the judgment, which held that the satisfaction of the Government must be based on some grounds, and “if, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court.”
The Court further observed,
“In accordance with the legal position, afore-stated, settled by the Six-Judge Constitution Bench way back in the year 1951, the scope of looking into the manner in which the subjective satisfaction is arrived at by the detaining authority, is limited. This Court, while examining the material, which is made basis of subjective satisfaction of the detaining authority, would not act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before detaining authority another view was possible.”
The Court found that the detenue was informed of his right to make a representation to the detaining authority and to the Government, and that the detention warrant and grounds of detention were read over and explained to him in Urdu/Kashmiri language, which he fully understood. The Court held that the grounds of detention were definite and unambiguous and found no illegality or infirmity in the impugned order.
In view of these findings the Court dismissed the habeas corpus petition and upheld the detention order.
Cause Title: Mohammad Ashraf Sheikh Vs Union Territory of J&K & Ors.
Citation: 2026 LiveLaw (JKL)