Danish Ahmad Bhat @APPELLANT@Hash State of J&K and others

Challenge in this petition is to order No.6/DMP/PSA/18 dated 15.05.2017, passed by District Magistrate, Pulwama-respondent No.2 herein,

whereby Danish Ahmad Bhat (hereinafter referred to as the detenue), has been taken into preventive custody and lodged in District Jail, Kathua.

The petitioner’s case, as set out in the petition, is that the respondents while passing the impugned detention order ignored to provide material

relied upon and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-

existent and unfounded.

The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly

prejudicial to the maintenance of public order. It is pleaded that the detention order and grounds of detention were handed over to the detenue and

same were read over and explained to him.

The grounds of detention make reference to case FIR Nos.17/2018, 19/2018, 22/2018 and 27/2018 under Section 348, 336, 353, 149 RPC 07, 148,

149, 336, 353, 427 RPC to have been registered against the detenue. Involvement of the detenue in aforementioned case appears to have heavily

weighed with the detaining authority while passing detention order.

Learned counsel for the petitioner further highlighted various grounds while seeking quashment of the order impugned, star ground is that the

detenue has been disabled from making an effective representation by not supplying the material forming base for the grounds of detention and the

consequent order of detention.

Submission has a prevailing force as nothing has been brought on record to suggest that the material forming basis of the grounds of detention has

been supplied to the detenue, therefore, infringement of right guaranteed under Article 22(5) of the Constitution. The Hon’ble Apex Court in the

judgment rendered in the case of “Sophia GulamMohd. Bham v. State of Maharashtra &orsâ€​ (AIR 1999 SC 3051),has held as under:

“The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the

grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made

and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on

which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.â€​

The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States' security, public order, disruption

of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. 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 bearing No. No.6/DMP/PSA/18 dated 15.05.2017 is unsustainable, as such, quashed. Further custody of the detenue shall be governed by

the orders as shall be passed by the court of competent jurisdiction relatable to the cases registered against him.

Disposed of as above.