Point of Law: Preventive detention - Illegal activities - Preventive detention is a deviation from concept of liberty which is sacrosanct to a human life and power of preventive detention is to be exercised with caution and restraint. Detention order is outcome of non-application of mind, nature of offences alleged against petitioner in order by themselves cannot sustain detention order in eyes of law.

JUDGMENT :

PUNEET GUPTA, J.

1. The petitioner has challenged detention order No. 01 of 2021 dated 23.01.2021 passed by the respondent No. 2 under provisions of J&K Public Safety Act (hereinafter called Act) on the ground that the order was served upon the petitioner when he was already in police custody under substantive offences; that the order impugned does not reflect the factual aspects of the case as the petitioner had either been acquitted or granted bail in some of the FIR mentioned in the order; that the petitioner was not supplied the relevant material nor was he made to understand the documents in the language he understands; that the execution of the detention order was also delayed though the petitioner was in custody of the Police; that the petitioner was deprived of making an effective representation before the Government and Advisory Board in respect of the detention order passed against him. The prayer is for quashment of order impugned in the writ petition.

2. The counter affidavit has been filed separately on behalf of the respondent Nos. 2 and 3. The grounds raised for seeking quashment of detention order is denied by the respondents in the affidavits. It is submitted that the petitioner has indulged in criminal cases from time to time and has not mended his ways and earned bail or acquittal by winning over the witnesses or tempering with the evidence. The petitioner has been supplied all the material by the respondents and has been explained the documents in the Dogri language which he understands. The order has been passed after due application of mind by the respondent No. 2. The respondents seek dismissal of the writ petition on the ground that the detention order has been passed as per law.

3. The detention order, in the first instance, has been approved by the Government vide Order No. PB-V/197 of 2021 dated 09.03.2021.

4. Mr. Rohit Mattu, advocate appearing on behalf of the petitioner and Mr. Aseem Sawhney, learned Additional Advocate General have argued the matter as per the submissions made in their respective pleadings. The arguments shall be detailed while analyzing various aspects of the matter.

5. The order of preventive detention is passed with a view to prevent the person from committing such illegal activities in future on the past conduct which may be prejudicial and disturb the public order. The preventive detention is a deviation from the concept of liberty which is sacrosanct to a human life and the power of preventive detention is to be exercised with caution and restraint. The concept of the preventive detention is summed up by the Apex Court in Haradhan Shah vs. State of West Bengal, 1975 (3) SCC 198 as under:-

“32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.”

6. The court would like to address the procedural aspects of the matter in the first instance which are stated to have not been adhered to by the auth