JKUT (Srinagar), June-04-2021-( JNF):- Justice Vinod Chatterji Koul of Jammu & Kashmir High Court Srinagar Wing while upholding the detention of Muhammad Aslam Beigh an overground worker of Jesh-e-Muhammad (JeM) outfit, observed that law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority.
The petitioner challenged the Order no. 21/DMK/PSA of 2020 dated 26.07.2020, passed by District Magistrate, Kupwara, placing one, Muhammad Aslam Beigh S/o Nazir Ahmad Beigh R/o Maidanpora, Lolab District Kupwara (for short “detenu”) under preventive detention so as to prevent him from acting in any manner prejudicial to the security of the State and directing his lodgement in Central Jail, Jammu (Kot-bhalwal).
Respondents have filed Reply Affidavit, insisting therein that detenu is involved terrorist activities carried out by terrorists of Jash-e-Mohammad (JeM) outfit in and around Kupwara area, besides he is abetting terrorist acts of JeM outfit and harbours terrorists at different locations and provides aid and assistance to the said outfit on the dictates of terrorists, which is used for carrying attacks on security personnel in the valley, thus causing loss of life and property, creating terror and fear in the hearts of general public and in this way aids as well as abets the menace of militancy in the State more particularly in North Kashmir and thus helps those terrorists to flourish and carry out their nefarious activities in the valley.
Justice Vinod Chatterji Koul while dismissing the peititon observed that before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section 8 thus clearly shows that it is the satisfaction of the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that 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. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Government and try to determine if it would have come to the same conclusion as the Government. As has been generally observed, this is a matter for subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for subjective decision of the Government. JNF