While ruling on a very significant legal point, the Jammu and Kashmir and Ladakh High Court at Srinagar in a most learned, laudable, logical, landmark and latest judgment titled Muntazir Ahmad Bhat Vs Union Territory of JK & Anr in LPA No. 164/2021 that was reserved on 13.04.2023 and then finally pronounced on 27.04.2023, the Jammu and Kashmir and Ladakh High Court has unhesitatingly ruled that being detained under the Public Safety Act cannot be considered an arrest for committing an offence under the penal law. The Court clarified that instead, it is a preventive measure to avoid any possible harmful act from the detained person based on their background and therefore, there is no requirement to produce the detainee before a Magistrate within 24 hours. It must be mentioned here that the observations were made by Hon’ble Mr Chief Justice N Kotiswar Singh and Hon’ble Mr Justice Puneet Gupta while hearing an LPA in terms of which the appellant had challenged an order dated 12th November, 2021 passed by the Single Judge by which the petition filed by the petitioner-appellant challenging his detention in terms of Section 8 of the J&K Public Safety Act was dismissed.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Chief Justice N Kotiswar Singh for a Division Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Puneet Gupta sets the ball rolling by first and foremost putting forth in para 1 that:
The present appeal has been preferred against the order dated 12th November 2021 passed by the learned Single Judge in WP (Crl) No. 105/2021 by which the petition filed by the petitioner-appellant herein challenging his detention in terms of Section 8 of the J&K Public Safety Act was dismissed.

Needless to say, the Division Bench then states in para 2 that:
The appellant has raised several grounds in assailing the order passed by the learned Single Judge.

To put things in perspective, the Division Bench then envisages in para 3 that, It has been submitted by the learned counsel for the appellant that it can be seen from the detention order that the appellant was earlier booked under FIR No. 125/2019 under Sections 302, 307 RPC, 7/27 Arms Act and 4/2015 Explosive Substances Act in connection with which, he was granted bail as he was found to be a juvenile. Later, he was arrested in connection with FIR No. 54/2019 under Section 121-IPC, 18, 20 & 39 UA(P) Act registered in Police Station Rajpora, Pulwama, in which he was also granted bail on 22.06.2021. Thereafter, he was again arrested in connection with FIR No 29/2020 under Section 7/25 Arms Act and 23 UA(P) Act, but he did not apply for bail, and accordingly he remained in custody. While he was in custody in connection with the said FIR No. 29/2020, the above detention order was passed on 12thJuly 2021 which he challenged by filing the writ petition, WP(C) No. 105 of 2021.

As we see, the Division Bench then observes in para 18 that:
Having heard the learned counsel for the parties and on perusal of the records and keeping in mind the observations and findings arrived at by the Ld. Single Judge, we have noted that the some of the pleas taken up before us were indeed not raised before the Ld. Single Judge and as such we were not inclined to entertain the same at this stage. Yet, we have opted to examine the same. Coming to the contention of the appellant that the detention order was not validly served consonant with Section 76 of CrPC, the same is misplaced. The detention of a person under the Public Safety Act does not amount to arrest for commission of any offence under a penal statute but a preventive act to thwart any potential prejudicial act on the part of the person detained based on his antecedents and as such producing such a detenue before a Magistrate within 24 hours does not arise. Further, the detention order was issued by the detaining authority, i.e., the District Magistrate and as such executing the detention order by a SubInspector on the strength of the detention order passed by the District Magistrate would not in any way affect the validity of the detention order.

Most significantly, the Division Bench then lays bare in para 19 what constitutes the cornerstone of this notable judgment wherein it is postulated that:
The contention of the appellant that since the appellant was already in detention, invoking preventive detention was not warranted in as much he being under detention, the appellant could not have carried out any prejudicial act also is devoid of merit as the detaining authority based on his recent past activities and antecedents arrived at the subjective satisfaction that the normal laws would not be sufficient to deter from carrying out prejudicial activities. The subjective satisfaction of the detaining authority on the propensity and likelihood of the appellant to engage in prejudicial acts is based on germane materials of his recent activities as evident from the involvements in the aforesaid FIR No. 125/2019 under Sections 302, 307 RPC, 7/27 Arms Act and 4/2015 Explosive Substances Act, FIR No. 54/2019 under Section 121-IPC, 18, 20 & 39 UA(P). As also rightly observed by the Ld. Single Judge, the purpose of invoking law of preventive detention to detain a person is not to punish for any alleged illegal act but to prevent him from engaging in any act prejudicial to the security of the State or public order or such act contemplated under the J & K Public Safety Act, 1978. If such subjective satisfaction is based on the past conduct and relevant materials, detention of such person will be permissible.

It cannot be glossed over that the Division Bench then observes in para 20 that, As regards the submission that since the appellant was under arrest in connection with FIR No. 29/2020 under Sections 7/25 of Arms Act and 23 UA(P) Act, he could not have engaged in acts prejudicial to the security of the State, is misconceived as it is on record that he was arrested in connections with two FIR cases earlier but was released on bail. It is seen from the records that after he was released on bail in connection with the first FIR Case No. 125/2019U/Ss 302. 307-RPC, 7/27 A Act and 4/5 Expl. Sub. Act, he continued to engage in subversive acts prejudicial to the security of the State and accordingly, was arrested in connection with FIR No. 54/2019U/Ss 121 IPC, 18,20 & 39 UA(P) Act, P/S Rajpora, in which case he was granted bail. It was during this period after he was again granted bail that the detention order was issued on 12.07.2021. It is a different aspect that he might have been also found involved in another FIR also, i.e., FIR No. 29/2020 under Sections 7/25 of Arms Act and 23 UA(P) Act when he was detained under the preventive detention. Thus, from the conduct of his recent past, it can be reasonably inferred that he would continue to engage in prejudicial act once he is released on bail, warranting his preventive detention under the Act.

While citing the relevant case law, the Division Bench then hastens to add in para 21 stating that:
The Ld. Single Judge in paragraph no. 19 of the impugned judgment has also dealt with this issue by observing that the satisfaction of the detaining authority that the detenu is already in custody and he is likely to be released on bail, and on being released, he is likely to indulge in the same prejudicial activities is the subjective satisfaction of the detaining authority and referred to the decision of the Supreme Court in the case of Senthamilseli v. State of T.N. and another, 2006 (5) SCC 676,in which it was held that satisfaction of detaining authority, coming to conclusion that there is likelihood of detenu being released on bail is subjective satisfaction, based on materials and such subjective satisfaction is not to be interfered with normally. Thus, we have observed that the Ld. Single Judge had taken due notice of this submission and considered the same.

Most forthrightly, the Division Bench then mandates in para 22 holding that:
As regards the contention of the appellant that it was nowhere mentioned in the detention order that the detenue could make a representation to the authority, which is the requirement of law, on perusal of the records, as also observed by the Ld. Single Judge in paragraph no. 10 of the impugned judgment wherein it was observed that the record so produced by the State reveals that in terms of Order dated 12th July, 2021, a notice was issued under Section 13 of the J&K Public Safety Act whereby the detenu was informed to make a representation to the detaining authority as also to the Government against his detention order if the detenu so desires. In view of the aforesaid finding by the Ld. Single Judge based on records, we do not find any merit in this contention.

Adding more to it, the Division Bench then holds in para 22 that:
As regards the contention that the allegations made in the detention order are concocted and not based on records, we are not able to accept the same for the reason that the records do indicate involvement of the appellant in serious offences as mentioned in the FIRs referred to above and we are not called upon to examine the correctness of the allegations made in the aforesaid FIRs, not being within the scope of our scrutiny under the law of preventive detention.

Finally, the Division Bench concludes by holding in para 23 that:
For the forgoing reasons, we do not find any irregularity in the observations and conclusion arrived by the Ld. Single Judge which would warrant our interference and accordingly, dismiss this appeal.

In sum, we thus see that the Jammu and Kashmir and Ladakh High Court at Srinagar has made it crystal clear that preventive detention is not an arrest. It was also clarified by the Court that no 24-hour Magistrate appearance required. Of course, we see quite distinctly that the Court has also very well summed up as to why the appeal of the petitioner must be dismissed and was accordingly dismissed also! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh