IRSHAD AHMAD WAGAY Vs. STATE OF J&K

JUDGEMENT

(1.) By medium of instant petition, quashment of order of detention bearing No.16/DMK/PSA/2018 dated 12.09.2018 is sought on the grounds detailed out therein.

(2.) Preventive orders, so as to deter a person from acting in any way which shall be threatening the security of the State of public order, have to be passed. However, the power in issuing preventive orders has to be exercised in such a manner which would show that all the safeguards as against the orders of detention have been taken into consideration and respected. Liberty is precious, curtailment thereof can be by way of exception but it must have some reasonable basis. In absence of any solid basis, tampering with the right of liberty is not permissible. Any person who, in any way, threatens security of the State or public order has to be dealt with iron hands but constitutional guarantees under such guise cannot be permitted to be defeated.

(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 order of preventing a person from acting in any manner which shall be prejudicial, in the instant case, to the maintenance of public 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 Vs. State of Tamil Nadu and anr", reported in (2011. 5 SCC 244: