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Preventive Detention is not a Quick Alternative to Normal Legal Process

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR

HCP No.224/2018 Date of Decision: 30.11.2018

Shahid Muneeb Mir
vs.
State of J&K and others Coram:

Hon’ble Mr Justice Sanjeev Kumar, Judge Appearing counsel:

For petitioner(s): Mr Wajid Hasib, Adv. clamp Mr Mir Shafqat Hussain, Advocate
For respondent(s): Mr Asif A. Bhat, AAG

1. Impugned in this petition is Order no.46/DMA/PSA/2018 antiquated 03.08.2017, upheld by District Magistrate, Anantnag – respondent no.2 herein, whereby Shahid Muneeb Mir adopted son of Mohammad Akber proprietor of Sumbruna Achabal A/P Shangus, District, Anantnag (for abruptness “detenu”), has been placed underneath surety detention, on a drift set out in petition in hand.

2. Counter confirmation has been filed by respondents, vehemently facing a petition.

3. Heard schooled warn for parties and deliberate a matter.

4. Learned warn for postulant states that detenu was arrested by military hire Achabal from his home on 17.07.2018 and was concerned in box FIR no.49/2018. Bail was postulated in foster of detenu on 23.07.2018, by schooled Judicial Magistrate 1st Class, Shangus. However, detenu was not expelled and was concerned in another case, temperament FIR no.142/2017. The detenu practical for bail, that was postulated on 03.08.2018, yet he was not expelled and was kept in control for several days. While being in custody, detenu was shifted to District Jail Kathua on 07.08.2018, to be incarcerated underneath surety apprehension in terms of impugned apprehension order. Learned warn serve states that detenu was already certified to bail in box FIR no.49/2018 on 23.07.2018, yet this critical fact has not been reflected by detaining management in drift of detention, that vitiates impugned apprehension order. The purported activity, finished discuss of in drift of detention, that is conspicuous to have been a basement for flitting apprehension order, had occurred on 05.04.2018 since impugned apprehension sequence has been upheld on 03.08.2018, i.e. after a check of about 4 months. According to schooled counsel, a unexplained check between purported activity and sequence of apprehension has snapped vicinity of sequence of apprehension with a time of a necessity. He also asserts that detenu was not furnished duplicate of dossier and other connected material, copies of FIR(s), statement(s) underneath Section 161 Cr.P.C., seizure memos of cases mentioned in drift of detention, so as to make him capacitate to make an effective illustration to supervision as good as detaining authority. He has also vehemently settled that claim reflected in drift of apprehension are deceptive and do not clear flitting of apprehension sequence inasmuch as detaining management has not given any reasonable justification to pass apprehension sequence and therefore impugned sequence is profound with finish non-application of mind on partial of detaining authority. To strut his arguments, schooled warn for postulant has relied on Razia Umar Bakshi v. Union of India and others AIR 1980 SC 1751; Anant Sakharam Raut v. State of Maharashtra and another AIR 1987 SC 137; Sophia Gulam Mohd. Bham v. State of Maharashtra AIR 1999 SC 3051; Mohammad Ashraf Khan v. State & ors 2010 (I) SLJ 365; State of Maharashtra and others v. Santosh Shankar Acharya, (2000) 7 SCC 463; and Tariq Ahmad Dar v. State of J&K & ors., 2017 Legal Eagle 131.

5. Per contra, schooled warn for respondents has insisted that all a technical assign had been complied with, some-more quite as compulsory underneath J&K PSA, that yield that beginning event of creation a illustration be supposing to detenu.

6. Reverence of life is irrefragably consequent with a grace of a tellurian being, who is fundamentally divine, not obsequious. A tellurian celebrity is indued with intensity infinitude and it blossoms when grace is sustained. The critical of such grace has to be a biggest courtesy of each supportive soul. The hint of grace can never be treated as a duration hint of light or, for that matter, “a brief candle”, or “a vale bubble”. The hint of life gets some-more splendiferous when a male is treated with grace sans humiliation, for each male is approaching to lead an fair life that is a superb benefaction of “creative intelligence”. When a hole is combined in a reputation, humanism is paralysed. Reverence for a nobleness of a tellurian being has to be a cornerstone of a physique nicely that believes in nurse progress. But, some, a incorrigible ones, turn totally preoccupied of a fact that critical with grace has been enshrined in a Constitutional truth and it has a entire participation and a sovereignty and inviolate grace can't be authorised to be crucified in a name of precautionary incarceration. Albert Schweitzer, highlighting on Glory of Life, conspicuous with self-assurance and humility, “the bend of life offers me my elemental element on morality”. The aforesaid countenance might seem to be an individualistic countenance of a good personality, but, when it is accepted in a finish sense, it unequivocally denotes, in a unpractical essentiality, and connotes, in a macrocosm, a elemental notice of a thinker about a honour that life commands. Personal autocracy is of a widest width covering a accumulation of rights. Its damage shall usually be in suitability with procession prescribed by law compliant to assign of a Supreme Law, a Constitution, some-more quite to Article 21 thereof. Of all elemental rights, conceded to adults underneath a Constitution, right of personal autocracy is many cherished. A chairman is not to be deprived of this right solely in suitability with a procession laid down by law, even if he be a male of a many unfortunate character.

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7. Preventive apprehension is a critical advance of personal autocracy and such tiny safeguards as a Constitution has provided, opposite crude practice of power, contingency be envy watched and enforced by a Court. Article 22(3)(b) of a Constitution of India, that permits surety detention, is an disproportion to Article 21of a Constitution. An disproportion cannot, ordinarily, stop full force of a categorical rule, that is a right to autocracy guaranteed underneath Article 21 of a Constitution. An disproportion can request usually in singular cases. The deception of what is, in effect, a estimable tenure of seizure by a practice of executive discretion, though trial, lies uneasily with a typical concepts of a sequence of law. The law of surety apprehension can usually be fit by distinguished a right change between particular autocracy on a one palm and a needs of an nurse multitude on a other. The energy of surety apprehension is a horrifying and overwhelming energy with impassioned consequences inspiring personal autocracy that is a many loving and cherished possession of male in a courteous society. The conspicuous energy has to be exercised with a biggest caring and caution, and it is a avocation of a Courts to guarantee that this energy is not abused or misused. The energy of surety apprehension contingency be cramped to really slight limits, differently a right to autocracy would be rendered nugatory. To forestall injustice of this potentially dangerous power, a law of surety apprehension has to be quite construed and prudent correspondence with procedural safeguards, however technical, is needed and vital. When it comes to elemental rights underneath a Constitution, a Court, irrespective of a concern and sobriety of allegations finished opposite a detenu, contingency intervene. The sobriety of a immorality to a community, ensuing from anti-social activities, can't allow sufficient reason for invading personal autocracy of a citizen, solely in suitability with procession determined by law, quite as normal penal laws would still be accessible for being invoked instead of gripping a chairman in apprehension though trial. The law relating to surety apprehension has always been quite interpreted so as to urge a judgment of particular freedom. Courts have always acted to guarantee a virginity of such right that is accessible to be interfered with usually underneath a many difficult and severe conditions. What disproportion is it to detenu either his immurement is called surety or punitive? Besides, in cases of surety apprehension no corruption is valid and justification of such apprehension is guess or reasonable probability, and there is no self-assurance that can usually be fitting by authorised evidence. Preventive apprehension is each so mostly described as a ‘jurisdiction of suspicion’, Detaining management passes apprehension sequence on biased satisfaction. Preventive apprehension is, by nature, unfriendly to approved ideas and an aversion to sequence of law.

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8. Preventive apprehension law creates room for apprehension of a chairman though a grave assign and though trial. The chairman incarcerated is not compulsory to be constructed before a Magistrate within 24 hours, so as to give an event to a Magistrate to peruse a record and confirm either detenu is to be remanded to military or authorised control or authorised to go with or though bail. The detenu can't rivet a warn to paint him before detaining authority. In a conspicuous backdrop, it is of pinnacle significance that whatever procedural safeguards guaranteed to detenu by a Constitution and surety apprehension law, should be quite followed. Right to autocracy guaranteed by Article 21 implies that before a chairman is imprisoned, a conference contingency usually be hold giving him full event of hearing, and that too by a lawyer, since a layman would not be means to scrupulously urge himself solely by a lawyer. The significance of a warn to capacitate a chairman to scrupulously urge himself has been elaborately explained by a Supreme Court in A.S. Mohd. Rafi v. State of Tamilnadu AIR 2011 SC 308 and Md. Sukur Ali v. State of Assam, JT 2011 (2) SC 527. As celebrated by Mr Justice Sutherland of a U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932) “Even a intelligent and prepared layman has tiny and infrequently no ability in a scholarship of law”, and hence, though a warn he might be convicted yet he is innocent. Article 22(1) of a Constitution creates it a elemental right of a chairman incarcerated to deliberate and be shielded by a warn of his choice. But Article 22(3) privately excludes a qualification of proviso (1) of Article 22 to cases of surety detention. Therefore, we contingency obstruct a energy of surety apprehension to really slight limits, differently a good right to autocracy won by a Founding Fathers, who were also leisure fighters, after long, arduous, chronological struggles, will turn nugatory. In State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 this Supreme Court observed:

“…Personal autocracy is a changed right. So did a Founding Fathers trust because, while their initial intent was to give unto a people a Constitution whereby a supervision was established, their second object, equally important, was to strengthen a people opposite a government. That is why, while consultation endless powers on a supervision like a energy to announce an emergency, a energy to postpone a coercion of elemental rights or a energy to emanate ordinances, they positive to a people a Bill of Rights by Part III of a Constitution, safeguarding opposite executive and legislative domination those tellurian rights that they regarded as fundamental. The needed prerequisite to strengthen these rights is a doctrine taught by all story and all tellurian experience. Our Constitution makers had lived by sour years and seen an visitor Government raid on tellurian rights that a nation had fought tough to preserve. They believed like Jefferson that “an elective domination was not a Government we fought for”. And, therefore, while defending a Government with vast powers to forestall commotion from within and defeat from without, they took caring to guarantee that those powers were not abused to ruin a liberties of a people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54.”

9. The Constitution Bench of a Supreme Court in M. Nagaraj & ors. Vs. Union of India & ors. (2006) 8 SCC 212, observed:

“It is a misconception to courtesy elemental rights as a benefaction from a State to a citizens. Individuals possess simple tellurian rights exclusively of any Constitution by reason of a simple fact that they are members of a tellurian race.”
10. The Nine Judge Constitution Bench of a Supreme Court in I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1, observed:

“It is compulsory to always bear in mind that elemental rights have been deliberate to be a heart and hint of a Constitution….. Fundamental rights occupy a singular place in a lives of courteous societies and have been described in judgments as & “transcendental”, & inalienable, and primordial”.
11. In a benefaction case, averment of schooled warn for respondents is that there are really critical allegations opposite detenu as he has always been in a lead purpose in mill pelting incidents and has been formulating law and sequence problem in a area of Achabal, Anantnag, and a adjacent areas and in sequence to accomplish eremitic agency, he resorted to mill pelting. And in this connection, several rapist cases are already going on opposite detenu underneath several supplies of Ranbir Penal Code and if he is found guilty, he will be convicted and given suitable sentence. Maybe, offences allegedly committed by detenu attract punishment underneath prevalent laws yet that has to be finished underneath prevalent laws and holding chance to surety apprehension laws would not be warranted. Detention can't be finished a surrogate for typical law and pardon questioning authorities of their normal functions of questioning crimes, that detenu might have committed. After all, surety apprehension can't be used as an instrument to keep a chairman in incessant control though trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011 SCW 2262, while emphasising need to belong to procedural safeguards, observed:

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“It contingency be remembered that in box of surety apprehension no corruption is valid and a justification of such apprehension box is guess or reasonable probability, and there is no self-assurance that can usually be fitting by authorised evidence. Preventive apprehension is mostly described as “jurisdiction of suspicion”, The Detaining Authority passes a sequence of apprehension on biased satisfaction. Since Clause (3) of Article 22 privately excludes a qualification of Clauses (1) and (2), a detenue is not entitled to a warn or a right to be constructed before a Magistrate within 24 hours of arrest. To forestall injustice of this potentially dangerous energy a law of surety apprehension has to be quite construed and prudent correspondence with a procedural safeguards, however, technical, is, in a opinion, needed and vital.”
12. It is good to discuss that surety apprehension is not a discerning choice to normal authorised process, is a observant of a Supreme Court in V. Shantha v. State of Telangana & ors, AIR 2017 SC 2625. The Supreme Court has hold that surety apprehension of a chairman by a State after branding him a ‘goonda’ merely since a normal authorised routine is ineffectual and time-consuming in ‘curbing a immorality he spreads’, is bootleg and that apprehension of a chairman is a critical matter inspiring a autocracy of a citizen. Preventive apprehension can't be resorted to when sufficient remedies are accessible underneath ubiquitous laws of a land for any repudiation or elect underneath such laws, a Supreme Court observed. Recourse to normal authorised procession would be time immoderate and would not be an effective halt to forestall detenu from indulging in serve unjust activities, inspiring upkeep of open order, and that there was no other choice solely invoking supplies of surety apprehension Act as an impassioned magnitude to insulate. No doubt, offences purported to have been committed by detenu are such as to attract punishment underneath prevalent laws yet that has to be finished underneath a conspicuous prevalent laws and holding chance to surety apprehension laws would not be warranted. Preventive apprehension involves detaining of a chairman though conference aiming during to forestall him from committing certain forms of offences. But such apprehension can't be finished a surrogate for typical law and pardon questioning authorities of their normal functions of questioning crimes, that detenu might have committed. After all, surety apprehension can't be used as an instrument to keep a chairman in incessant control though trial. My views are fortified by a judgements rendered in a cases of Rekha’s and V. Shantha (supra), and Sama Aruna v. State of Telengana AIR 2017 SC 2662.

13. For a foregoing reasons, petition is likely of and apprehension Order no.46/DMA/PSA/2018 antiquated 03.08.2017, upheld by District Magistrate, Anantnag, is quashed. Respondents are destined to recover a detenu, namely, Shahid Muneeb Mir adopted son of Mohammad Akber proprietor of Sumbruna Achabal A/P Shangus, District, Anantnag, forthwith, supposing he is not compulsory in any other case. Disposed of.

Srinagar
( Sanjeev Kumar )
Judge
30.11.2018

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