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Judgment
The detenue - Mysar Majid Malik, was detained vide order No. 160/DMB/PSA/2018 dated 12-01-2018, passed by the respondent No.2 - District
Magistrate, Baramulla, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for
short Act of 1978) and he was lodged in Central Jail Kotbhalwal, Jammu. The detenue continues to be there at the moment. Â The grounds of
detention, along with the allied documents, are said to have been served on the detenue and the contents thereof, as contended, are said to have been
read over and explained to him in the language which he understood fully well.
02/ The order of detention has been challenged on the grounds, inter alia, that  the detenue could not have been detained under the provisions of
PSA when he was already in the custody of the respondents in connection with  F.I.R No. 05/2018 for the offences punishable u/s 7/25 Arms Act.
It is also stated that the detenue has been deprived of the right to file an effective representation against the order of his detention, as the relevant
material, relied upon by the Detaining Authority while passing the impugned order of detention, in the form of the dossier, copy of  the FIR, the
statement u/s 161 Cr.PC etc., have not been furnished to him.Â
03/ In the counter affidavit, the respondents have pleaded that the order of detention has been passed after taking into consideration the relevant
provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is
conversant and these have been read over and explained to him. Therefore, the order of detention does not suffer from any vice. It has been passed
with due diligence and it will sustain in the eyes of the law.Â
04/ Heard and considered. The detention record has also been perused.
05/ As already stated, the impugned order of detention has been challenged chiefly, on the ground that the detenue could not have been detained under
the provisions of PSA when he was already booked in substantive offences in connection with F.I.R No. 05/2018 for the offences punishable u/s 7/25
Arms Act, registered in Police Station Pattan. The detenue was arrested on 03-01-2018 by the Security Forces and kept in illegal custody in Police
Station, Pattan, till the time the impugned order of detention came to be passed.
06/ Preventivedetention, as has been held in the cases of A.K.Gopalan  v. State of Madras (1950) SCR 88  andRekha  vs.  State of Tamil
Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha’s
case (supra) emphasized that article 22 (3) (b) of the  Constitution of India is to be read as an exception to article 21 of the Constitution of India and
not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the
Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow
limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long,
arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal
with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of
preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often
described as “jurisdiction of suspicion.†To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly
construed and meticulous  compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme
Court, after putting  reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49)
observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and
enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court
quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the
constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, Â but the laws of preventive detention
afford only a modicum of safeguards to persons detained under them, and if  freedom and liberty are to have any meaning in our democratic set up,
it is essential that at least those safeguards are not denied to the detenues.
07/ The procedural requirements are the only safeguards available to  a  detenue  since  the  Court  is not expected to go behind the
subjective  satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr.
(1987) 2 SCC 22,the procedural requirements are, therefore, 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.
08/Looking at the instant case from the above perspective, the detenue was already booked in substantive offences in  connection with F.I.R No.
05/2018 for the offences punishable u/s 7/25 Arms Act, registered in Police Station, Pattan. He was in the custody of the respondents at the time of
the passing of the impugned order of detention. The said F.I.R forms the baseline of the  order of the detention of the detenue. The question, which
arises for consideration, therefore is, can an order of detention be passed on the face of what has been detailed above. The answer to this question
can be a big “No†taking into consideration the law laid down by the Apex Court of the Country at para 24 sub para (6) of the judgment delivered
in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:-
“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the
detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the
apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the
higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention
under the National Security Act should not ordinarily be passed.â€
 09/ The same view has been repeated and reiterated by the Hon’ble Supreme Court in paragraph 13 of the judgment delivered in the case of
V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, which reads as follows: Â
“13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers
and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to
prevent the detenue from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that
there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil
deeds. The rhetorical incantation of the words “goonda†or “prejudicial to maintenance of public order†cannot be sufficient justification to
invoke the draconian powers of preventive detention. To classify the detenue as a “goonda†affecting public order, because of inadequate yield
from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The
grounds of detention are ex facie extraneous to the Act.â€
10/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the
provision of PSA, when he was involved in the commission of substantive offences  and was in the custody of the respondents. So much so, he
 had not applied for bail. The proper course would have been to challenge the order of bail, if granted to him. He could not have been detained
preventatively. This single infraction  renders the order of detention liable to be set aside.
11/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing
No. 160/DMB/PSA/2018 dated 12-01-2018 passed by the respondent No.2 â€" District Magistrate, Baramulla, is quashed with a further direction to
the respondents to release the person of Mysar Majid Malik, S/O Abdul Majid Malik R/O Mohalla Dhoni, Seriwarpora, Pattan, District Baramulla,
Kashmir, forthwith from the preventive custody, unless required in any other case.
12/Â The petition is, accordingly, disposed of along with connected IAs.The record shall be returned to the learned counsel for the respondents.