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Judgment
Challenge in this petition is to the order No.02/DMP/PSA/18 dated 17.04.2018, passed by District Magistrate, Pulwama-respondent No.2 herein,
whereby Gh. Nabi Shah (hereinafter referred to as the detenue), has been taken into preventive custody and lodged in District Jail, Kathua.
Host of grounds have been projected while seeking quashment of impugned order but the star ground is that the detaining authority-respondent
No.2, did not inform the detenue that, independent of his right to file representation against his detention to the Government, he has also a right to
submit representation to the detaining authority, thus violated constitutional and statutory rights of the detenue guaranteed under Article 22(5) of the
Constitution of India.Â
It is expected from the detaining authority while serving an order of detention, as a rule, to inform the detenue that he has a right to make a
representation against the order of detention to the detaining authority itself. The law insists upon the literal performance of a procedural requirement.
The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty, is of prima importance. It is, therefore,
imperative that the detaining authority must apprise a detenue of his constitutional right under Article 22(5) to make a representation against the order
of detention.Â
In the judgment rendered by the Hon’ble Apex Court in “State of Maharashtra and others v. Santosh Shankar Acharya†(AIR 2000 SC
2504), it has been held that “detenue will have a right to make a representation to the Detaining Authority so long as the order of detention has not
been approved by the State Government and consequently noncommunication of the fact to the detenue that he has a right to make representation to
the Detaining Authority, would constitute an infraction of the valuable Constitutional right guaranteed to the detenue under Article 22(5) of the
Constitution and such failure would make the order of detention invalid.â€
Preventive laws have the effect of depriving a person of his liberty which is precious, however, deprivation thereof at times becomes indispensable.
For justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to threaten maintenance
of public order has to be dealt with iron hand but the Constitutional safeguards as are available are also to be followed. The Article 21 of the
constitution of India has protected the life and personal liberty of people by providing that no person shall be deprived of his life or personal liberty
except according to the procedure established by law. The word established is used in Article 21 in order to denote and ensure that the procedure
prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the
precise extent of such deprivation. If a person is to be deprived of his life or liberty, the authority concerned is under a constitutional mandate to
follow the procedure established by law, the procedure prescribed for depriving a person of his life or liberty has to be reasonable, fair and just. The
protection contained in the article does not extend to only citizens but to all persons. The law providing for preventive detention has to be strictly
construed keeping in view the delicate balance between social security and citizen freedom. Thus if the preventive detention has not been ordered in
strict conformity with law authorizing detention, the detenue is entitled to be released.  Â
Viewed thus, the petition is allowed and order No. 02/DMP/PSA/18 dated 17.04.2018, is quashed. Detenue is directed to be released from the
preventive custody forthwith provided he is not required in connection with any other case(s).
Detention record, as produced, be returned to the learned counsel for the respondents.Â