The court emphasized the need for the Detaining Authority to record compelling reasons necessitating the detention of the detenue and highlighted the constitutional safeguards under Article 22(5).

ORDER :

1. The petitioner herein has thrown challenge to order of detention No. Home/PB-V/1183 of 2023 dated 31.05.2023 (for short “the impugned order”) passed by the respondent 2 herein under and in terms of the provisions of the J&K Public Safety Act, 1978 (for short “the Act of 1978”).

2. The grounds urged in the petition against the impugned order being relevant and significant herein are extracted and reproduced hereunder:-

i. For, the power of preventive detention available with the respondents is extraordinary in nature being an exception to the constitutional guarantees of freedom and liberty available to the Citizens, and therefore, can only be exercised within the strict confines of law as drawn by the legislature. It is trite in law, the detenu in this case, in view of the article 22(5) of the Constitution of India, is required to be furnished with particulars of grounds of his detention as also mandated in section 13(1) of the Public Safety Act. This requirement is not an empty formality that can be brushed aside but is a Constitutional requirement/obligation that must be followed in letter and spirit. The purpose behind this requirement is that the person being detained must be clearly and sufficiently, in the language understood by him (in present case it being Urdu) be informed of the reason for his preventive detention. The orders weren’t even explained to the Petitioner. As is evident, from the annexed impugned orders, it is cannot be claimed by the respondents that merely by handing over an order in a language not understood by the detenu, who is an illiterate person, the respondents have communicated grounds of detention to him. The respondents seem to have paid only a lip service to the constitutional safeguards as well as statutory requirements under Public Safety Act. Hence, the petitioner’s detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21. On this ground alone, the detention of the petitioner is illegal and the impugned order is therefore liable to be quashed and consequently, Petitioner must be released.

ii. For, furnishing the material in English and not the language of the detenue; and not informing detenue of his right to make representation before the Detaining Authority or the Government, all reflect that the Detaining Authority has not applied its mind to draw the subjective satisfaction to detain the petitioner and detenue has also been deprived of his fundamental right to make effective and meaningful representation against the detention order to the Detaining Authority and the government.

iii. For, the detenu has to be informed about his right to make a representation to the Government against an order of his Detention. This safeguard against arbitrary exercise of power contained in the Public Safety Act is in adherence to the larger Constitutional Safeguard of Article 22(5). As is evident from the impugned order No. Home/PB-V/1183 of 2023 dated 31.05.2023, the impugned detention Order No. 01/DM/DODA/PSA/2023 dated 03.05.2023 was approved by the Respondent no. 1 in less than twenty four hours and sent to the Advisory Board, thereby stealing/denying any opportunity to the detune to make a representation against the same, further, no information regarding any stage of proceedings was ever given to the detenu. This very act of Respondents in unusually accelerating the entire exercise of detention and approval cannot be said to be without conscious intention of undermining the constitutional safeguard of Article 22(5) as well as statutory requirement under section 13 of the Public Safety Act. This subverting of Constitutional requirement may not be condoned by this Hon'ble Court. On this ground alone the impugned orders mush be quashed by this Hon'ble Court.

iv. For, both the section 15 and 16 of the PSA define the boundaries and regulate the proceedings of the Advisory Board. A perusal of the same would show that the proceeding befo