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Judgment
Initially in terms of order of detention bearing No.99/DMS/PSA/2017 dated 20.04.2017, Mohammad Nadeem Malik (hereinafter referred to as the
detenue), was taken into preventive custody. The said order was challenged before this Court in HCP No.151/2017 which was allowed vide judgment
dated 27.12.2017 and the detenue was directed to be set at liberty. Instead of releasing the detenue, he has again been ordered to be re-detained in
terms of order No.118/DMS/PSA/2018 dated 06.03.2018 and lodged in Central Jail, Srinagar.
Learned counsel for the petitioner contended that there is nonapplication of mind on the part of detaining authority while passing the impugned
detention order as the detaining authority has not scanned the relevant material and has not formulated the grounds of detention itself.
One of the requirements for deriving subjective satisfaction is to formulate the grounds of detention which shall form basis for passing the order of
detention. In the order impugned as passed by District Magistrate, it is recorded; “Whereas on the basis of dossier placed before me by the Sr.
Superintendent of Police, Shopian, vide his No.CS/D-1/18/1143 dated 13.02.2018, I am satisfied…â€Â which shows that Detaining Authority has not
sifted the material for preparation of the grounds of detention. The nonapplication of mind is clear, therefore, an invasion to personal liberty which is
not permissible under law occupying the field.
Personal liberty protected underArticle 21of the Constitution of India is so sacrosanct and so high in the scale of constitutional values that it is the
obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Right to liberty
as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution, which is an exception to Article 21
of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority
concerned is required to be alive to the personal liberty of a person. Such power has to be exercised in a manner, which may not have the trappings
of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural
safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his
liberty has been curtailed de horse the law. In this regard, support can be had from the judgment rendered by a Bench of three Hon’ble Judges of
the Hon’ble Apex Court in case captioned Rekha Vs. State of Tamil Nadu and anr, reported in (2011) 5 SCC 244.
In view of the facts of the present case and the law laid down by the Hon’ble Apex Court as quoted hereinabove, the order of detention
impugned No.118/DMS/PSA/2018 dated 06.03.2018, is unsustainable, as such, quashed. In the grounds of detention, various criminal cases are shown
to have been registered against the detenue, therefore, further custody of the detenue shall be governed in accordance with the orders as shall be
passed by the concerned court in the criminal cases referred above.
The detention records, as produced, be returned to the learned counsel for the respondents.Â