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Judgment
1) Hilal Ahmad Ganie son of Mohammad Abdullah Ganie resident of Larkipora Awantipora Pulwama, through his brother, Sajad Ahmad Ganie, seeks quashment of detention order No.39/DMA/PSA/DET/2018 dated 23.07.2018, purported to have been issued passed by respondent No.2-District Magistrate, Anantnag, on the grounds enumerated in the petition.
2) On issuance of notice, respondents caused appearance and filed counter affidavit and resisted the petition.
3) Heard learned counsel for the parties and also perused the records.
4) Learned counsel for the petitioner submitted that the detenu was required to be supplied the material relied upon by the detaining authority while passing the detention order so as to enable him to file an effective representation against his detention and the failure to supply the relevant material amounts to violation of rights guaranteed under Article 22(5) of the Constitution.
5) The ground projected, on perusal of the detention records appears forceful. The detention records contain Execution Report dated 28.07.2018 which shows that copy of detention warrant and copy of grounds of detention (04 leaves) have been provided to the detenue. Furnishing the copy of grounds of detention and warrant of detention would not absolve the detaining authority from furnishing the material forming base of the grounds of detention as it is the material which would enable the detenue to make an effective representation against the detention. Non-supply of the material would amount to violation of Article 22(5) of the Constitution of India, so deprivation of a valuable right.
6) Learned counsel for the petitioners next contended that the detenue was arrested in connection with FIR No.115/2018 for commission of offences punishable under Section 7/25 Arms Act and ¾ Exp. Sub. Act, therefore, there was no requirement for detaining the detenue under the provisions of Public Safety Act.
7) Perusal of the grounds of detention reveals that the detaining authority has not recorded any satisfaction as to how in the face of registration of criminal case for having allegedly committed substantive offence, there was requirement of ordering detention of the detenue under Public Safety Act. The order of detention, therefore, suffers from non-application of mind.
8) It is settled that a person in custody in connection with criminal cases can be detained under the provisions of preventive laws provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection, it is quite apt to quote following para from the judgment "T. P. Moideen Koya vs. Government of Kerala and ors." reported in 2004 (8) SCC 106:
"......in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the deteue was likely to be released on bail"
9) The right to personal liberty is a guaranteed fundamental right and a person can be deprived of same only in accordance with procedure established by law. The preventive detention laws are of extreme nature, recourse to which has to be taken in extreme situation. Detaining authority, on entering satisfaction in respect of activities of a person, orders detention. State authorities, however, are duty bound to follow mandate of Article 22 of the Constitution of India and more particularly sub-clause 5 of the said Constitutional provision. The inbuilt safeguards have been made in the Article 22 of the Constitution to provide constitutional safeguards to a person and in pursuance thereof statutory safeguards have also been provided to a detenu under the provisions of J&K Public Safety Act, 1978. Article 22(5) of the Constitution and provisions of Act of 1978 are to be strictly adhered to. Any infraction thereof would invalidate the detention order. The procedural requirements are the only safeguards available to a detenu. As laid down by the Apex Court in "Abdul latief Abdul Wahab Sheikh v. B. K. Jha and anr." (1987) 2 SCC 22, the procedural requirements are to be strictly complied with, if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard.
10) Individual liberty is a cherished right, that is one of the most valuable fundamental rights guaranteed by our Constitution. In the scheme of Constitution, utmost importance has been given to life and personal liberty of the individual. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established. In the matter of preventive detention, there is deprivation of liberty, therefore, safeguards provided by Article 22 of the Constitution of India, have to be scrupulously adhered to. Procedural reasonableness, which is invoked, cannot have any abstract standard or general pattern of reasonableness. The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions.
11) For the facts and the reasons discussed hereinabove, petition is allowed. Detention order No. 39/DMA/PSA/DET/2018 dated 23.07.2018, passed by respondent No.2 is quashed. Respondents are directed to set free the detenue from the preventive custody forthwith, unless, of course, not required in connection with any other case.
12) Detention records be returned to the learned counsel for the respondents.