Umar Ahmad Dar @APPELLANT@Hash State of J&K and anr

Pursuant to order No.19/DMB/PSA/2018 dated 07.05.2018, passed by respondent No.2, Umar Ahmad Dar (hereinafter referred to as the

detenue) has been taken into preventive custody by invoking powers under Section 8(a) of the J&K Public Safety Act and lodged in District Jail,

Kathua. By the instant petition quashment of the said order is sought.

Firstly, learned counsel for the petitioner would contend that the order of detention has been passed on the basis of the material produced by SSP,

Baramulla before the District Magistrate, such as “dossier†and “other connecting documents†as reflected in the order of detention. Neither

copy of the letter dated 02.05.2018, as addressed by Sr. Superintendent of Police, Baramulla, to the District Magistrate nor the material/documents

accompanying such letter has been supplied to the detenue, therefore, detenue has been deprived of making an effective representation against the

order of detention. The right guaranteed under Article 22(5) of the Constitution of India, as such, is infringed.

In opposition learned counsel for the respondents would contend that the material/documents, based on which detaining authority has derived

satisfaction for passing the order of detention, have been supplied to the detenue. In support thereof, has produced the detention record which

contains the receipt of grounds of detention by the detenue, perusal of which would reveal that the detenue has received the grounds of detention

consisting of four leaves. So, admittedly, the material/documents considered by the detaining authority for deriving subjective satisfaction has not been

supplied to the detenue. It was imperative for the detaining authority to furnish copies of the documents so referred in the grounds of detention to the

detenue which has not been done thereby disabling the detenue to submit an effective representation to the Government. Infringement of such right

guaranteed under Article 22(5) of the Constitution would render the order of detention as illegal.

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 authorises 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 and such power shall 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 order of

preventing a person from acting in any manner which shall be prejudicial, in the instant case, to the maintenance of public order but while doing so

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 connection it shall be quite relevant to quote paras 37 and 38 of 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:

“37. As observed in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha vide SCC para 5:(SCC p.27)

“5....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective

satisfaction of the detaining authority. 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.â€​

As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee v. McGrath:(US p. 179)

“...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural

safeguards are the main assurances that there will be equal justice under lawâ€​.

Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide

technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society’s assurances that the

authorities will behave properly within rules distilled from long centuries of concrete experienceâ€​.

Viewed thus, the order of detention impugned bearing order No. 19/DMB/PSA/2018 dated 07.05.2018, is unsustainable, as such, quashed. The

detenue has been shown involved in case FIR No.61/2018 P/S Baramulla for commission of offences punishable under Section 13 and 19 UL(P) Act,

therefore, his further custody shall be regulated by the orders as shall be passed by the concerned court of competent jurisdiction in the case

registered against him.Â

Detention record, as produced, be returned to the learned counsel for the respondents.Â