FAROOQ AHMAD SHAH Vs. STATE

JUDGEMENT

(1.) In pursuance to order No. DMS/PSA/15/2013 dated 10.09.2013, detenue, Farooq Ahmad Shah, has been taken into preventive custody by invoking powers under Section 8(a) of the J & K Public Safety Act as his activities were found to be prejudicial to the "maintenance of public order" so has been lodged in District Jail, Baramulla. Order of detention has been confirmed by the Government and period of detention has been fixed as three months as is clear from Govt. order No. Home/PB-V/1321/2013 dated 09.10.2013, which period is to expire on 09.12.2013. By the medium of instant petitions, quashment of the detention order is sought. Learned counsel for the petitioner would contend that the material forming base for the grounds of detention, such as dossier and other connecting documents as reflected in the order of detention, have not been supplied to the detenue, therefore, has been deprived of making an effective representation against the order of detention. The right guaranteed under Article 22(5) of the Constitution of India, as such, is infringed.

(2.) Past history and activities of the detenue have been narrated in the grounds of detention, it was imperative for the detaining authority to furnish copies of the documents so referred in the grounds of detention to the detenue. Infringement of right to represent against the order of detention as guaranteed under Article 22(5) of the Constitution would render the order of detention as illegal.

(3.) Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3)(b) of the Constitution, which is an exception to Article 21 of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person and such power shall be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order but while doing so procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this connection it shall be quite relevant to quote paras. 37 and 38 of the judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned Rekha v. State of Tamil Nadu and Anr., 2011 5 SCC 244: