JUDGEMENT :

1. Challenge in this petition is thrown to Order No. DMB/PSA/14 of 2019 dated 20.03.2019, passed by District Magistrate, Budgam – respondent no.2 herein (for short “detaining authority”), placing under preventive detention Shri Dr. Hameed Ganai @ Hameed Fayaz S/o Mohammad Yaseen Ganai R/o Wazir Bagh, Zabarwan Colony House No. 119, Budgam (for brevity the “detenu”) with a view to preventing him from acting in any manner prejudicial to the maintenance of security of State and has been lodged in District Jail, Kathua, J&K, Jammu.

2. The case set up by petitioner in the instant petition is that he has been arrested on 22.02.2019 at 4:00 A.M. from his residence and sent to the Police Station Humhama, where he remained for two days and thereafter sent to Central Jail, Srinagar. On 09.03.2019 upon production before Tehsildar, Budgam, the detenue was admitted to bail but re-arrested suddenly and escorted to Police Station, Humhama, wherefrom shifted to District Jail, Kathua on 24.03.2019 under the provisions of the Jammu and Kashmir Public Safety Act in connection with case FIR No. 42/2019 and subsequently placed under preventive detention in terms of impugned detention order.

3. The respondents have filed the counter affidavit, vehemently resisting and opposing the petition on hand.

4. Heard learned counsel for the parties and considered the matter. I have gone through the detention record produced by the learned counsel for the respondents.

5. Before giving heed to the case in hand, it would be apt to say that the right of the personal liberty is most precious right, guaranteed under the Constitution. It has been held to be inspirational, absolute 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 are to save 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 a 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.

6. The essential concept of preventive detention is that 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 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 Haradhan Saha v. State of W.B. (1975) 3 SCC 198, points out that a criminal conviction, on the other hand, is for