Decided on May 28,2020

Union Territory Of JAndK And Ors. Respondents


PER MAGREY,J. - (1.)This Letters Patent Appeal has been filed on behalf of the detenue against the judgment dated 07.02.2020 passed in WP(Crl) no.251/2019 whereby the learned Writ Court has dismissed the writ petition for habeas corpus seeking quashing of the detenue's detention order under Jammu and Kashmir Public Safety Act, 1978. A few relevant facts may be narrated.
(2.)The appellant-petitioner filed WP(Crl) no.251/2019 challenging thedetention of her husband, Mian Abdul Qayoom, a practicing Advocate of this Court, ordered by the District Magistrate, Srinagar, in exercise of the powers under Section 8 of the J&K Public Safety Act, 1978 (JK PSA), in terms of his Order no.DMS/PSA/105/2019 dated 07.08.2019. The said order is shown to have been passed by the detaining authority on being satisfied that, with a view to preventing the detenue from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him. The detention order so passed by the detaining authority was challenged by the appellant-petitioner, broadly, on the grounds: (i) that the detenue was not supplied the material documents on the basis of which the detaining authority had attained the requisite satisfaction; thereby the detenue was prevented from making an effective representation against his detention, violating the most precious right guaranteed to him; (ii) that the FIRs relied upon by the detaining authority to form his opinion pertain to the years 2008 and 2010, and that the allegations contained in these FIRs are stale in nature; therefore, the same could not form the basis for detaining the detenue, and that the detention order on that ground is vitiated; (iii) that the detenue was previously detained in the year 2010 and the very same FIRs and the allegations made therein were then relied upon for detaining the detenue, but that detention order was subsequently withdrawn; therefore, in view of the law laid down by the Supreme Court, these FIRs could not have been taken into account for detaining the detenue afresh, and that the detention order on that count is vitiated; (iv) that the grounds of detention are replica of the police dossier, and that the detaining authority has signed the order of detention and the grounds of detention without application of mind; therefore, the detention of the detenue suffers from non-application of mind on the part of the detaining authority; (v) that the grounds of detention are vague, indefinite, uncertain and ambiguous; (vi) that the detaining authority has not shown his awareness in the grounds of detention about the present status of the 2008 and 2010 FIRs and whether the detenue had filed any application for bail therein; and (vii) that the detenue was taken into preventive custody under Sections 107/151 Cr. P. C. during the intervening night of 4/5th August, 2019 and the detaining authority has not shown any compelling reason for ordering his detention under the provisions of the Public Safety Act in face of the fact that the detenue was already in preventive custody.
(3.)The learned Writ Court, vide its judgment impugned in this appeal, dismissed the writ petition with the following concluding para: "21. To sum up, a law of preventive detention is not invalid because it prescribed no objective standard for ordering preventive detention, and leaves the matter to subjective satisfaction of the Executive. The reason for this view is that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. Preventive detention is thus, based on suspicion or anticipation and not on proof. The responsibility for 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 preventive detention. Having said that, subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinise the 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. While saying so, this Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant."? (Underlining supplied)

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