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Those Responsible For National Security Sole Judges Of What Preventive Actions Are Necessary: Jammu & Kashmir High Court Upholds Detention Order
Basit Amin Makhdoomi
31 July 2023 8:10 AM GMT
The Jammu and Kashmir High Court recently emphasised on its limited scope to look into the manner in which the subjective satisfaction is arrived at by the detaining authority to order preventive detention of a person.“The courts do not even go into the questions as to whether the facts mentioned in the grounds of detention are correct or false. The reason for the rule is that to decide...
The Jammu and Kashmir High Court recently emphasised on its limited scope to look into the manner in which the subjective satisfaction is arrived at by the detaining authority to order preventive detention of a person.
“The courts do not even go into the questions as to 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. 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”, Justice M A Chowdhary observed.
The Petitioner in the instant case was taken into preventive custody in terms of the order of detention issued under Section 8 of the J&K Public Safety Act 1978 by respondent No.2- District Magistrate Budgam.
Assailing the detention order the petitioner's counsel argued that the allegations in the grounds of detention were vague, non-existent, and unjustified, making it impossible for the detenue to make a meaningful representation. Additionally, it was contended that the detenue had already been bailed out in a previous case, but this fact was not considered in the detention order. Furthermore, it was pointed out that the last alleged activity attributed to the detenue occurred in July 2021, and no fresh activity had been linked to him since then.
Another contention raised by the petitioner was that the detaining authority had not prepared the grounds of detention themselves, relying solely on the police dossier. Moreover, the detenue had not been provided with essential material, such as copies of the dossier, statements under Section 161, 164-A CrPC, seizure memos, and the bail order in the case mentioned in the grounds of detention.
Dealing the matter at hand Justice Chowdhary, reaffirmed the legal position regarding preventive detention of a person who is already in custody for an offense under substantive law and observed that ordinarily, preventive detention should not be ordered in such cases. However, if the detaining authority has "compelling reasons" to believe that the individual may be released on bail or due to acquittal or discharge, preventive detention can still be ordered, the bench underscored.
Emphasising that an order for detention can be validly passed against a person already in custody, the bench explained that only if there is cogent material suggesting that the detainee is likely to be released soon and that there are strong indications that they may engage in prejudicial activities upon release.
Applying the said legal position to the instant case the bench said that the grounds of detention reveal that the detenu was involved in stone pelting at encounter sites and was allegedly part of a terror module associated with a prescribed outfit and in view of offenses under the Arms Act and Unlawful Activities Prevention Act, the detaining authority believed it necessary to prevent the individual from carrying out anti-national and subversive activities.
It also found the contention of the petitioner for not supplying the material is not sustainable.
Referring to State of Bombay Vs Atma Ram Shridhar Vaidya AIR 1951 the court said while examining the material, which is made basis of subjective satisfaction of the detaining authority, it 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.
In view of these observations, the court upheld the preventive detention order and accordingly dismissed the plea.
Case Title: Mohammad Younis Mir Vs Union Territory of J&K & Anr.
Citation: 2023 LiveLaw (JKL) 200
