Zahoor Ahmad Dar vs State of J&K & ors.

In pursuance to order No.23/DMB/PSA of 2016 dated 29.08.2016, passed by District Magistrate, Bandipora, Zahoor Ahmad Dar

(hereinafter referred to as the detenue), has been taken into preventive custody while invoking powers under Section 8(a) of the J&K Public

Safety Act as his activities were found to be prejudicial to the ""maintenance of public order"" so has been lodged in Kote Balwal Jail, Jammu. By

the medium of the instant petition, quashment of the same is sought.

Learned counsel for the petitioner highlighted various grounds while seeking quashment of the order impugned, the 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.

The submission has prevailing force as there is nothing on record which would suggest that the said material has been supplied to the detenue,

therefore, has been deprived of making an effective representation against the order of detention, which in turn negates the right guaranteed under

Article 22(5) of the Constitution of India, as such, is infringed.

The Hon''ble Apex Court in the judgment rendered in the case of ""Sophia Gulam Mohd. Bham v. State of Maharashtra & ors"" (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.

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. In Smt.

Ichhu Devi Choraria v. Union of India & ors (AIR 1980 SC 1983), this judicial commitment was highlighted in the following words:

The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention,

regardless of the social cost involved in the release of a possible renegade

This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirement of the law and even

where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of

detention"".

1) Personal liberty protected under Article 21 of 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 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:

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.

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 law"".

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 experience"".

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 is unsustainable, as such, quashed. Detenue is directed to be released from the preventive detention forthwith provided he is not required

in connection with any other case.

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