IMPORTANT POINT
Preventive detention – In a democracy governed by rule of law, drastic power to detain a person without trial for security of State and/or maintenance of public order, must be strictly construed.

JUDGMENT

M.A. Chowdhary, J.—Respondent No.2 namely District Magistrate, Jammu, in exercise of powers conferred on him under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (for short, ‘Act of 1978’), has passed the detention Order No. 07 of 2020 dated 07.07.2020 (for short impugned order), in terms whereof the detenue namely Abdul Majid alias Bhallu has been detained.

2. The impugned detention order has been challenged through the medium of the instant petition, being in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13 of the J&K Public Safety Act, 1978.

3. It is being pleaded in the petition that the detaining authority-respondent No.2 has not attributed any specific allegation against the detenue. Furthermore, it is stated that the detenue has been incapacitated in filing a representation as the grounds of detention are not in a language which could be understood by the detenue. It is being also stated that the detenue is not an English literate person and understands only Urdu language but the order of detention is in English and it is not possible for him to understand such a hyper technical language. It is also the submission of learned counsel for the detenue that the order of detention and the connected documents annexed with the petition clearly show violation of right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.

4. Respondents in their counter affidavit have stated that the detenue was ordered to be detained for maintenance of ‘public order’ and if he would be let free there will be every likelihood of his re-indulging in scaring and terrorizing the people of the area as he is a hardcore criminal. It is further stated that detention of the petitioner under preventive law is only to keep the petitioner at bay, as a precautionary measure and not as a punishment.

5. Heard learned counsel for both the sides at length and considered the record.

6. Learned counsel for the detenue while being heard makes reference to the grounds of the detention and states that on a cursory look on the same it is manifest that same are vague. It is also submitted that respondent No.2 on the basis of dossier submitted by Senior Superintendent of Police, Jammu, without application of mind and without evaluating the allegations alleged against the detenue in the said dossier, which was not provided to the family of the detenue, proceeded to pass impugned detention order whereby the detenue has been detained and directed to be lodged at Central Jail Jammu. In addition, learned counsel submitted that the allegations levelled against the detenue are totally vague as nothing specific has been stated in the grounds of detention.

7. In rebuttal, learned AAG submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention.

8. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the indiv