The main legal point established in the judgment is the necessity of the government's satisfaction for preventive detention, the objective of preventive detention to protect society, and the non-punitive nature of preventive detention.

JUDGMENT :

1. By virtue of Detention Order No. 14/DMB/PSA/2021 dated 18.10.2021 (for short ‘impugned order’) passed by District Magistrate, Baramulla - respondent No.2 the detenue namely Fayaz Ahmad Kumar S/O Ghulam Qadir Kumar R/O Khanpora Tehsil & District Baramulla, was ordered to be detained under preventive custody with a view to prevent him from acting in any manner in the activities which are prejudicial to the security of State, to warrant immediate measures to be taken against him to stop him from indulging in such activities, in terms of Clause (a) of Section-8 of J&K Public Safety Act, 1978 (for short ‘the Act’).

2. Aggrieved of the said detention order, detenue, through his brother, has filed the present petition seeking quashment of the same on the grounds taken in the petition on hand. That the detenue, in terms of the impugned order, has been detained under the Act on false and flimsy grounds without any justification; that the grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective and meaningful representation against these allegations. Further plea of the detenue is that he has not been provided the material/documents relied upon by the detaining authority so as to make an effective representation before the detaining authority; that he was not informed that he can make a representation before the District Magistrate, therefore, a valuable right of the detenue stands defeated; that the Detaining authority, while passing the impugned order, has relied upon the stale grounds, therefore, the same is not sustainable. It was prayed to quash the impugned order for the afore-stated grounds.

3. Reply affidavit has been filed by respondent No. 2 vehemently resisting the petition. It is contended that detaining a person under the provisions of Public Safety Act is always preventive in nature and its sole aim is to prevent a person from pursuing anti-national/anti-social activities, which are prejudicial to the maintenance of public order etc. In the instant case there is enough material against the detenue which is highly suggestive of the fact that the normal law of the land is not sufficient to prevent him from continuing with his anti-national activities and, it is evident that the detenue is highly motivated and is not likely to desist from anti-national and unlawful activities.

4. Heard learned counsel for the parties, perused the detention record produced by learned counsel for the respondents and considered.

5. The detention record, on its perusal, would indicate that as many as fifty- two (52) FIRs, from the year 2008 till 2020, have been registered against the detenue for his involvement in anti-national activities, which is suggestive of the fact that the detaining authority, in order to curb the criminal/anti-national activities of the detenue, has detained him under the provisions of Public Safety Act.

6. It would be apt to say that right of personal liberty is most precious right, guaranteed under 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 the case ‘Maneka Gandhi vs. 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 defense.

7. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a pers