Important Point—A person is not to be deprived of his personal liberty except in accordance with procedures established under law.

1. Impugned in this petition is Order No.DMS/PSA/33/2016 dated 10th September 2016, of District Magistrate, Srinagar - respondent No.2 herein, whereby one Bilal Ahmad Dar son of Ghulam Nabi Dar resident of Wussan Kahaie Pattan, District Baramulla (for brevity “detenu”) has been placed under preventive detention to prevent detenu from acting In any manner prejudicial to the maintenance of security of the State.

2. The case set up in the petition is that respondent No.2, while slapping preventive detention on the detenu, has not adhered to Constitutional and Statutory safeguards available to detenu under the Constitution of India and J&K Public Safety Act, 1978.

3. I have heard learned counsel for parties. I have gone through the pleadings as also record made available by learned Additional Advocate General. I have considered the matter.

4. Right of personal liberty is most precious right guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, (1978 AIR SC 597), is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) Constitution of India therefore leaves scope for enactment of preventive detention law.

5. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Hardhan Saha v. State of W.B. (7975) 3 SCC 798, points out that a criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in the Act, to prevent.

6. It is long back that an eminent thinker and author, Sophocles, had to say: “Law can never be enforced unless fear supports them.” This statement was made centuries back, but it has its relevance, i