Jammu & Kashmir High Court

Qadir Khan vs Ut Of J&K And Others on 4 August, 2023

   HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT JAMMU

                                           Reserved on :-     10.07.2023.

                                           Pronounced on :- 04.08.2023.


                                           WP(Crl) No. 5/2023

Qadir Khan                                                    .....Petitioner(s)


                       Through: Mr. Gagan Oswal, Advocate

               Vs


UT of J&K and others                                        ..... Respondent(s)

                       Through: Mr. Sumeet Bhatia, GA


Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
                                JUDGMENT

01. Personal liberty of a person known and recognized as a

fundamental right is self-inhering right the enjoyment of which a

person is guaranteed and guarded by none other than the

Constitution of India. Thus, something which the Constitution of

India itself guarantees and guards cannot be allowed to be fiddled

with by an entity i.e. the State and its authorities which function

under the aegis of the Constitution of India, except by following the

strict regime of law under which such a fundamental right of a

person can be impinged, curtailed or restricted. Preventive detention

jurisdiction is one of such laws.

02. Preventive detention jurisdiction is, thus, a subject to be

handled with care and caution envisaging and expecting legal

maturity of the trustees entrusted with the authority to exercise the

jurisdiction which is eventually meant to end in depriving a citizen

of his personal liberty by reference to his potentiality rather than

actuality for acts endangering the society and the State. Stakes of

far reaching effects are envisaged and involved in each and every

case of preventive detention both from the point of view of the State

and the society and also the person facing/suffering preventive

detention.

03. The preventive detention of a person is a safety serving for

the State and the society but to carry out a preventive detention

there are non-negotiable procedural checkmates and check-points

which if ignored, by design or default, by a public authority/officials

acting on behalf of the State to detain a person under preventive

detention jurisdiction, then there is no scope for expecting a judicial

diplomacy from a Constitutional Court to provide a let off to the

wrong attending preventive detention of a person. Lost personal

liberty of such a person to be restored even if the subjective

satisfaction to tender a person in itself may be justifiable. The

present case is one where the check-points have been punctured in

effecting the preventive detention of the petitioner who has come

asking to restore the snatched personal liberty.

04. The Senior Superintendent of Police (SSP), Udhampur (in

short "SSP, Udhampur"), upon the basis of fact that the petitioner

was found involved on two occasions at different points of time in

his alleged commission of offences under the Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short "NDPS Act, 1985"),

had considered the petitioner to be a fit case to suffer deprivation of

his personal liberty in order to check his further indulgences in

activities as may amount to offences under the NDPS Act, 1985.

05. The SSP, Udhampur compiled a dossier with respect to the

petitioner bearing alleged facts upon the basis of which the case for

preventive detention of the petitioner curtailing his personal liberty

under the Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 (in short "PIT NDPS Act,

1988") was allegedly made out to be presented before the authority

vested with the power to order preventive detention. It is this act of

the SSP, Udhampur which resulted in preventive detention of the

petitioner who has now come forward to impugn his preventive

detention order terming it to be illegal and unconstitutional.

06. The chronology of the case relates back to booking of the

petitioner in FIR no. 63/2021 dated 30.06.2021 with the Police

Station Majalta that being the first of two FIRs for alleged acts of

commission of offences under the NDPS Act, 1985 on the part of the

petitioner and the second being FIR no. 412/2021 dated 29.10.2021

with the Police Station Udhampur under the NDPS Act, 1985.

07. The SSP, Udhampur came to compile and submit a Dossier

no.Conf./Dossier/445-48 dated 20.12.2022 to the respondent no. 2

-Divisional Commissioner, Jammu urging thereby that the

petitioner is a notorious criminal/drug peddler who is involved in

number of criminal acts and transportation of drug consignments in

district Udhampur for which there is no other way to prevent him

from indulging in such activities and to curb the circulation of drug

menace in the society other than getting the petitioner under

preventive detention. The dossier so submitted by the SSP,

Udhampur to the respondent no. 2 - the Divisional Commissioner,

Jammu was comprised of 30 leaves as mentioned in the dossier

forwarding communication no.Conf./Dossier/445-48 dated

20.12.2022.

08. A perusal of the dossier so submitted would reveal that in

the name of factual content, the SSP, Udhampur cited two FIRs

involving the petitioner with respect to alleged commission of

offences under the NDPS Act of 1985 and rest is opinion filled

amounting to characterization of the petitioner in bad description.

09. First FIR no. 63/2021 dated 30.06.2021 cited against the

petitioner is under section 8/21/22 of the NDPS Act 1985 registered

with the Police Station Majalta on 30.06.2021 in which case the

petitioner, while he was walking towards Majalta from Satrari road

upon his personal search was found possessing alleged contraband

in the form of Diacetyl Morphine (Heroine). In this FIR, a final Police

Report no. 65/2021 dated 16.07.2021 under section 173 of the

Criminal Procedure Code, 1973 is said to have been presented by

the Police Station concerned before a competent court of law. In this

case, the petitioner is said to have been granted bail by the Principal

Sessions Judge, Udhampur.

10. Second FIR referred by the SSP, Udhampur in his dossier

is FIR no. 412/2021 dated 29.10.2021 under section 8/21/22 of

the NDPS Act 1985 registered with the Police Station Udhampur in

which the petitioner along with one Sushil Sharma came to be

implicated while they were riding a Mahindra Bolero and upon being

stopped by the Police at the Nakka Point Jakhani at about 1130

hours, alleged recovery of contraband was effected from them. In

this regard, final Police Report (Challan) no. 02/2022 dated

04.01.2022 is said to have been presented and now under trial

before a competent criminal court of law against the petitioner. The

contraband allegedly recovered is Diacetyl Morphine (Heroine) which

is not of a commercial quantity and the two accused are said to be

on bail from the stage of investigation itself.

11. In addition to these two FIRs, the petitioner has been

named in four Daily Diaries no. 12 dated 02.11.2022, no. 14 dated

15.11.2022, no. 6 dated 22.11.2022 and no. 13 dated 09.12.2022

by the Police Station Majalta on account of the suspicious

movement alleged against the petitioner with regard to sale and

purchase of illegal drugs. Details of these Daily Diaries against the

petitioner have not been spelled out in the Dossier by the SSP,

Udhampur, though copies enclosed with the Dossier.

12. It is upon the basis of the aforesaid two FIRs and four Daily

Dairies, the SSP, Udhampur came to characterize the petitioner as a

notorious/hardcore habitual criminal, desperate character and a

drug peddler who being a habitual offender is involved in many

criminal offences and blatantly violating the rule of law include drug

addiction and thereby horrifying the innocent citizens. The

petitioner is branded to be a history sheeter whose activities were

highly prejudicial to the maintenance of public order as well as to

the security of the society/public peace and tranquility.

13. The respondent no. 2 - Divisional Commissioner, Jammu

upon getting seized of the dossier so submitted by the SSP,

Udhampur came to pass a detention order no. PITNDPS 42 of 2022

dated 21.12.2022 upon purported satisfaction that the petitioner is

engaged in repeated illicit traffic in narcotic drugs and psychotropic

substances which poses a serious threat to the health and welfare of

the people and with a view to prevent him from committing any of

the acts amounting to offences and to save the younger generation

from use and occupation of drugs the case of the petitioner's

preventive detention was made out.

14. In terms of this detention order, the respondent no. 2 -

Divisional Commissioner, Jammu came to order preventive

detention of the petitioner for a period to be specified by the

Government. The order of detention so passed by the respondent no.

2 - Divisional Commissioner, Jammu is based upon the grounds of

detention accompanying the said order of detention and is a

verbatim repeat of the SSP, Jammu submitted dossier bearing ritual

sake reference of satisfaction of the respondent no. 2- Divisional

Commissioner, Jammu.

15. The respondent no. 2 - Divisional Commissioner, Jammu

came to address a communication no. 601/RA/Detention/23

(7091318) dated 21.12.2022 to the petitioner thereby informing him

about the passing of the detention order no. PITNDPS 42 of 2022

dated 21.12.2022 against him further informing the petitioner about

the grounds of detention accompanying the detention order and also

about the right of the petitioner to make a representation to the

Government against the detention order.

16. This aforementioned communication of the respondent no.

2 - Divisional Commissioner, Jammu is comprised of four leaves,

that being two page detention order and two page grounds of

detention. This fact is clearly reflected in the communication no.

601/RA/Detention/23(7091318) dated 21.12.2022 of the

respondent no. 2 - Divisional Commissioner, Jammu.

17. The respondent no. 2 - Divisional Commissioner, Jammu

came to submit vide communication no. 601/RA/Detention/

23(7091318) dated 21.12.2022, the detention case of the petitioner

to the Financial Commissioner (Additional Chief Secretary), Home

Department, J&K for seeking approval of the Government to the

detention order and for determination of the period of detention.

18. The detention order against the petitioner came to be

executed by PSI Jaipal Singh, PID no. EXJ-196633 of the Police

Station Majalta, the fact about which the Superintendent District

Jail Amphalla, Jammu came to notify the Deputy Secretary to Govt.

Home Department, UT of J&K, Jammu vide communication no.

DJJ/DET/22/8139-48 dated 22.12.2022 by referring to the

petitioner as a PSA detenue.

19. Upon the basis of the execution of the said detention

warrant, the petitioner came to be lodged in the District Jail

Amphalla, Jammu against execution of a PSA warrant relating to

the petitioner and his handing over the District Jail Amphalla,

Jammu. There is an Execution Report bearing the signatures of the

petitioner as well as the detention order executing officer PSI Jaipal

Singh, and also of the Assistant Superintendent District Jail

Amphalla, Jammu, but which bears the signatures of Assistant

Superintendent District Jail Amphalla, Jammu to be of 22.12.2022

but without any number wherein the fact of PSI Jaipal Singh taking

the custody of the petitioner on 21.12.2022 in village Satrari in

execution of the detention warrant and the execution of the warrant

at village Satrari on 21.12.2022 stands registered.

20. This Execution Report further states that notice of the

detention order was given to the petitioner by reading over and

explained to him in Urdu/Hindi/Dogri language understood fully by

the petitioner, in acknowledgement of which the petitioner's

signatures came to be obtained on the execution report as mark A.

21. Interestingly, it is in the Receipt of Grounds of Detention a

fact is mentioned that the petitioner came to be handed over

detention warrant (02 leaves), grounds of detention (02 leaves), copy

of dossier (04 leaves), DDR no. 12 dated 02.11.2022 of P/S Majalta

(01 leaf), DDR no. 14 dated 15.11.2022 of P/S Majalta (01 leaf),

DDR no. 06 dated 22.11.2022 of P/S Majalta (01 leaf), DDR no. 13

dated 09.12.2022 P/S Majalta (01 leaf), copy of FIR no. 63/2021

P/S Majalta (04 leaves), Final Report of case FIR no. 63/2021 (06

leaves), Seizure memo of case FIR no. 63/2021 (01 leaf), FSL report

of case FIR no. 63/2021 (01 leaf), copy of case FIR no. 412/2021 of

P/S Udhampur (03 leaves), Final report of case FIR no. 412/2021

P/S Udhampur (05 leaves), Seizure memo of case FIR no. 412/2021

of P/S Udhampur (02 leaves) and FSL report of case FIR no.

412/2021 of P/S Udhampur (02 leaves) in the District Jail

Amphalla, Jammu on an unmentioned date against proper receipt

and that the petitioner was informed that he could make a

representation to the Government as well as to the Detaining

Authority against the detention order, if he so desired.

22. The detention case so submitted by the respondent no. 2 -

Divisional Commissioner, Jammu along with the purported

representation of the petitioner came to be referred by the Govt. of

UT of Jammu & Kashmir acting through its Home Department vide

its communication no.Home/PB-V/1008/2022/7092371 dated

18.01.2023 to the Advisory Board for its opinion which came to be

tendered in terms of report dated 23.01.2023 with the remarks

about sufficiency of the cause for detention of the petitioner.

23. This opinion enabled the Govt. of UT of Jammu & Kashmir,

acting through the Home Department, to exercise its power under

section 9(f) read with section 11 of the PIT NDPS Act, 1988 thereby

confirming the detention order of the petitioner no. PITNDPS 42 of

2022 dated 21.12.2022 passed by the respondent no. 2 - Divisional

Commissioner, Jammu and thereby directing the detention of the

petitioner for a period of one year with the place of lodgement being

District Jail Amphalla, Jammu. This confirmation came to be

effected vide Govt. Order no. Home/PB-V/256 of 2023 dated

07.02.2023 issued by the Financial Commissioner (Additional Chief

Secretary), Home Department, UT of J&K.

24. It is in the backdrop of the aforesaid facts and

circumstances of the case, the petitioner has sought quashment of

his preventive detention by filing the writ petition inter alia on the

grounds that his detention order was misconceived and that he was

not supplied with all the requisite documents on the basis of which

the respondent no. 2-the Divisional Commissioner, Jammu had

proceeded to pass the detention order against the petitioner on

account of which the petitioner has been prejudiced in defending his

position against the said preventive detention. The petitioner has

averred that the routine procedure of law is in action against him

with respect to the accusation against him as framed with respect to

two FIRS and as such resort to preventive detention was only to

serve as beforehand punishment to the petitioner without a before

judgement from the criminal court of law seized of the cases.

25. This Court has heard the submissions of the learned

counsel for the petitioner as well as the learned counsel for the

respondents. This Court has perused the record of detention

produced from the end of the respondent no. 2- the Divisional

Commissioner, Jammu.

26. The detention record produced from the end of the

respondent no. 2- the Divisional Commissioner, Jammu bears a

puzzling point as to when the respondent no. 2- the Divisional

Commissioner, Jammu in addressing his communication no.

601/RA/Detention/23 (7091318) dated 21.12.2022 addressed to

the petitioner meaning to apprise the petitioner about the fact of his

preventive detention, has himself recorded that his said

communication has only four (04) leaves as accompaniment which

comprised of two (02) leaves of the detention order and two (02)

leaves of the grounds of detention, then how come at the time of

execution of detention order so passed by the respondent no. 2- the

Divisional Commissioner, Jammu, the executing office PSI Jaipal

Singh came to have at his disposal the entire set of dossier of 30

leaves available with him so as to be delivered along with the

respondent no. 2- the Divisional Commissioner, Jammu's two leaves

detention order no. PITNDPS 42 of 2022 dated 21.12.2022 read with

two leaves grounds of detention to the petitioner. It is a matter of

wild guess to be avoided by this Court particularly when the

respondents have not explained it at their own. This Court has no

basis and reason to accept that it is the respondent no. 2- the

Divisional Commissioner, Jammu who had actually forwarded the

complete set of documents accompanying the communication

no.Conf./Dossier/445-48 dated 20.12.2022 addressed to the

petitioner whereby the petitioner was informed about his detention

order and the grounds of detention therewith as with this

communication of the respondent no. 2- the Divisional

Commissioner, Jammu, the petitioner was meant to be served only

with four leaves of enclosures accompanying the said

communication.

27. This glaring gap between what the respondent no. 2- the

Divisional Commissioner, Jammu was meaning to do and direct and

what PSI Jaipal Singh came to carry out is a matter not to be

ignored by a Constitutional Court by taking it as a casual

coincidence or slip of application of mind on the part of the

respondent no. 2- the Divisional Commissioner, Jammu only getting

rectified by PSI Jaipal Singh while executing the detention order.

28. It is very obvious that there was an extra legal exercise

which was at play which resulted in purportedly handing over the

complete set of 30 leaves dossier to PSI Jaipal Singh to be delivered

along with the communication no. 601/RA/Detention/23 (7091318)

dated 21.12.2022 of the respondent no. 2- the Divisional

Commissioner, Jammu bearing the order of detention along with the

grounds of detention which was meant to be delivered to the

petitioner.

29. It was incumbent upon the respondent no. 2- the

Divisional Commissioner, Jammu to have explained in his counter

affidavit to the writ petition as to how come the petitioner came to

be delivered with a complete set of dossier by PSI Jaipal Singh when

the respondent no. 2- the Divisional Commissioner, Jammu had not

forwarded the same along with his communication no.

601/RA/Detention/23 (7091318) dated 21.12.2022. This misstep at

end of the respondent no. 2- the Divisional Commissioner, Jammu

invites and casts a serious doubt about the genuineness of the rest

of the proceedings purportedly carried out by PSI Jaipal Singh in

the context of arresting the petitioner by taking the person of the

petitioner under custody, the place of execution of the detention

order and the manner of informing/apprising the petitioner about

the order of detention so passed by the respondent no. 2- the

Divisional Commissioner, Jammu and the reading and explaining of

the grounds of detention to the petitioner by PSI Jaipal Singh. All

seems to be word play at the end of PSI Jaipal Singh for the sake of

paper work in which the petitioner was left clueless about what was

being intended by the respondent no. 2- the Divisional

Commissioner, Jammu and what was actually done by PSI Jaipal

Singh at his own.

30. The very fact that there was an extra legal exercise in play

in carrying out the detention of the petitioner is exhibited from the

fact that in his communication no. 601/RA/Detention/23

(7091318) dated 21.12.2022 the respondent no. 2- the Divisional

Commissioner, Jammu is meaning to apprise/inform the petitioner

about his right to make a representation to the Government but

when it comes to the matter of execution of the order of detention,

PSI Jaipal Singh in the execution report endorses a fact that the

petitioner has been apprised of his right to make representation

against his detention not only to the Government but even to the

detaining authority.

31. Thus, what was not being afforded by the respondent no.

2- the Divisional Commissioner, Jammu as being the detaining

authority to the petitioner was being extended by PSI Jaipal Singh

in the context of making of a representation by the petitioner

against his detention to the detaining authority. All this exposes the

very shamness of the exercise with respect to the detention of the

petitioner.

32. The detention record perused by this Court while

confirming the fact that the petitioner came to be detained on

22.11.2022 but the Home Department of UT of Jammu & Kashmir

in its communication no. Home/PB-V/1008/2022 (7092371) dated

23.12.2022 addressed to the Additional Secretary, IAS-II Division,

Ministry of Home Affairs, New Delhi and the Under Secretary to the

Govt. of India, Ministry of Finance was stating a position that the

detention warrant with respect to the petitioner had not been

executed yet i.e. by 23.12.2022 whereas the fact is that the

detention order had come to be executed as per the record on

22.12.2022.

33. Thus, the Home Department, Govt. of UT of Jammu &

Kashmir was found acting in ignorance of the actual state of affairs

pertaining to the very date of detention of the petitioner and is a

reflective of the fact that the detention of a person is taken with all

callousness at the end of the officials/authorities who are supposed

to act to the best of their application of mind in the matter of

handling the preventive detention of a person.

34. Lapse in procedure on the part of the public

authority/official in dealing with the preventive detention of a

person is not excusable because the person suffering detention

supposed to have acquiesced to any such lapse on the part of the

public authority/official.

35. Preventive detention jurisprudence is served in letter and

spirit only by reference to the procedural safeguard and fairness

which if compromised, even by an iota, at the end of the detaining

authority or the sponsoring authority in all consequences results in

erosion of the very exercise of preventive detention jurisdiction

against a detenu.

36. This Court needs to be take notice of the seriousness of

preventive detention jurisdiction as discerned by the Hon'ble

Supreme Court of India in its judgements delivered from time to

time without any repose.

37. In the case of "Pramod Singla Vs Union of India and

others," reported in 2023 SCC Online SC 374, the Hon'ble

Supreme Court has observed in para 21 as under:-

"21. Before we deal with the issues framed, we find it important to note that preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the Courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue."

38. In the case of "Rekha Vs State of Tamil Nadu through

Secretary to Government and another," reported in (2011) 5 SCC

244, the Hon'ble Supreme Court has stated the position as under:-

21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive?

29. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, 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 and historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.

35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', (Vide State of Maharashtra Vs. Bhaurao Punjabrao Gawande. The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article

22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. 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.

36. It has been held that the history of liberty is the history of procedural safeguards. (See:Kamleshkumar Ishwardas Patel Vs. Union of India and others). These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh Vs. State of Punjab, (1981) 4 SCC 1981 :-

"4 ... May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. 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 detenus."

39. Personal liberty protected under Article 21 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. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale's case, (1881) 6 QBD 376 :

"Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue."

39. In the case of "Francis Coralie Mullin Vs Administrator,

Union Territory of Delhi and others," reported in (1981) SCC

608:-

"4. Now it is necessary to bear in mind the distinction between 'preventive detention' and punitive detention', when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Art. 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Art. 22, there is also Art. 21 which lays down restrictions on the power of preventive detention. Until the decision of this Court in Maneka Gandhi. v. Union of India, a very narrow and constricted meaning was given to the guarantee embodied in Art. 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Art. 21. But in Maneka Gandhi's case (supra), this Court for the first time opened-up a new dimension of Art. 21 and laid down that Art. 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Art. 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Art. 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Maneka Gandhi's case became the starting point-the-spring-

board-for a most spectacular evolution the law culminating in the decisions in M. H. Hoscot v. State of Maharashtra,, Hussainara Khatoon's case, the first Sunil Batra's case and the second Sunil Batra's case. The position now is that Art. 21 as interpreted in Maneka Gandhi's case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Art. 22, but also of Art. 21 and if the constitutional validity of any such law is challenged, the Court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."

40. In the case of "Nand Lal Bajaj Vs State of Punjab and

another," reported in (1981) 4 SCC 327, the Hon'ble Supreme

Court has stated the position as under:-

"9. Among the concurring opinions, Krishna Iyer, J., although he generally agreed with Bhagwati, J., goes a step forward by observing:

Procedural safeguards are the indispensable essence of liberty. In fact, the history of procedural safeguards and the right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights: observance of fundamental rights is not regarded as good politics and their transgression as bad politics.

In short, the history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is, therefore, of prime importance to the body politic."

41. In the backdrop of the facts and circumstances of the case

and bearing in mind the sacrosanct declarations of the Hon'ble

Supreme Court of India as reproduced herein before by reference to

the judgements cited, this Court is led to an inviting conclusion that

the procedural aspect attending the preventive detention of the

petitioner was seriously compromised on account of acts of

commission and omission at the end of the Detaining Authority that

being the respondent no. 2- the Divisional Commissioner, Jammu

followed by the Govt. of UT of Jammu & Kashmir and, therefore, the

preventive detention of the petitioner cannot be allowed to sustain.

Thus, the detention order no. PITNDPS 42 of 2022 dated

21.12.2022 read with Govt. Order no. Home/PB-V/256 of 2023