JUDGMENT : 1. Detenu – Abdul Samad Malla son of Abdul Rehman Malla resident of Ganastan Tehsil Sonawari District Bandipora, through his brother seeks quashment of detention order No.29/DMB/PSA of 2018-19 dated 03.01.2019, passed by District Magistrate, Bandipora (for brevity “Detaining Authority”). In terms of the said order, Detaining Authority has directed preventive detention of the detenu. 2. The petitioner’s case, as set out in the petition, is that initially the detenue was taken into preventive custody in terms of order No.13/DMB/PSA/17 dated 25.07.2017, which was challenged before this Court in HCP No.353/2017. Same was allowed in terms of judgment dated 08.02.2018 and the said detention order was quashed and the detenue was directed to be released from preventive custody. The detenu was not released and instead was booked in case FIR No.50/2018. An application for grant of bail was filed before the Court of Chief Judicial Magistrate, Bandipora, which was granted in terms of order dated 23.10.2018 and the detenue was released. However, acting on the communication dated 22.10.2018 of respondent No.3, the respondent No.2 after a period of about three months, in terms of impugned order dated 03.01.2019, has ordered preventive detention of the detenu. It is also projected in the petition that the allegations/grounds of detention are stated to be vague and mere assertions. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded. Respondents despite ample opportunities have not chosen to file counter affidavit. However, the detention record has been made available. 3. Heard learned counsel for the parties and also perused the record. 4. It is projected that the detenue has been shown involved in various criminal cases which include FIR No.50/2018, 2016, reference of which is found in the grounds of detention. In FIR No.50/2018, detenu has already been admitted to bail, but this fact has not been made mention of in the grounds of detention, which shows non-application of mind on the part of Detaining Authority. 5. The ground projected, on perusal of the records appears to be forceful. In FIR No.50/2018, detenu has already been admitted to bail, but this fact has not been made mention of in the grounds of detention, which shows non-application of mind on the part of Detaining Authority. 5. The ground projected, on perusal of the records appears to be forceful. Though reference to FIR No.50/2018 has been made in the grounds of detention but the fact regard grant of bail to the detenu in the said FIR has not been made mention of. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon’ble Apex Court in the case of “Anant Sakharam Raut v. State of Maharashtra and another” reported in AIR 1987 SC 137 : - “We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith……” 6. It is further submitted that the grounds of detention being in hyper technical language, the detenu is not in a position to understand the same and thus has been disabled from making an effective representation against his detention as the translated copies of the grounds of detention were not supplied to him and the grounds of detention have not been read over to him in the language which he understands. 7. The detention record carries a copy of “receipt of grounds of detention”, perusal of which shows that ASI Ghulam Rasool has read over contents of grounds of detention but no affidavit in support thereof has been filed which was required to be sworn by the said officer. 7. The detention record carries a copy of “receipt of grounds of detention”, perusal of which shows that ASI Ghulam Rasool has read over contents of grounds of detention but no affidavit in support thereof has been filed which was required to be sworn by the said officer. Looking at the said ground from yet another angle, what can be said is that to eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions. Resort can, in this behalf, be had to the law laid down by the Apex Court of the country in the case of “State Legal Aid Committee, J&K Vs. State of J&K & others”, reported in AIR 2005 SC 1270 , wherein it has been held as under: "Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of Section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/ communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement LPA (HC) 107/2017 10 of 16 to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of Section 13 of the Act." 8. Para 5 of the judgment rendered in the case of “Mohammad Shaban Chopan Vs. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of Section 13 of the Act." 8. Para 5 of the judgment rendered in the case of “Mohammad Shaban Chopan Vs. State and another” reported in 2003(II) 455 shall be advantageous to be quoted here-under:- “5. Thus the stand taken by the detaining authority is that ASI Gh. Ahmad explained the grounds of detention to the detenue in Urdu and Kashmiri. However, affidavit of said ASI has not been filed. I have perused the record made available by Learned Counsel for the respondents. In the record there is a photocopy of C/Certificate of said ASI to that effect when the Learned Counsel was asked to produce the original, he expressed his inability to do so. The un-authenticated photocopy does not deserve to be noticed. Therefore, neither there is affidavit of said ASI nor any reliable document available on record to substantiate the fact that ASI Ghulam Ahmad had actually explained the grounds of detention to the detenue in his own language. Bare statement of the detaining authority in this behalf is of no consequence as has been held by the Hon’ble Supreme Court in the above quoted authority. The detention order thus cannot be sustained being violative of mandate of law on the aforesaid ground alone.” 9. Para 20 of judgment rendered in the case of “Lallubhai Jogibhai Patel vs Union Of India & Ors” reported in 1981 AIR 728 is also quite apt to be quoted: “20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan v. State of Maharashtra: and Haribandhu Dass. v. District Magistrate ( AIR 1969 SC 43 ) (ibid).” 10. Preventive laws have the effect of depriving a person of his liberty which is precious, however, deprivation thereof at times becomes indispensable. For justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to threaten maintenance of public order has to be dealt with iron hand but the Constitutional safeguards as are available are also to be followed. The Article 21 of the constitution of India has protected the life and personal liberty of people by providing that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The word established is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. If a person is to be deprived of his life or liberty, the authority concerned is under a constitutional mandate to follow the procedure established by law, the procedure prescribed for depriving a person of his life or liberty has to be reasonable, fair and just. The protection contained in the article does not extend to only citizens but to all persons. The law providing for preventive detention has to be strictly construed keeping in view the delicate balance between social security and citizen freedom. The protection contained in the article does not extend to only citizens but to all persons. The law providing for preventive detention has to be strictly construed keeping in view the delicate balance between social security and citizen freedom. Thus if the preventive detention has not been ordered in strict conformity with law authorizing detention, the detenue is entitled to be released. 11. Preventive detention, in effect, is an invasion to personal liberty which infringe the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, shall not be on the ipse dixit of the detaining authority. Preventive detention wherever permissible shall adhere to the procedural safeguards. Infraction of safeguards renders the order of detention unsustainable. The Hon’ble Supreme Court in catena of judgments has made it clear as to what is the value of the ‘constitutional safeguard’ and as to what is the value of right to liberty guaranteed under Article 21 of the Constitution of India. 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 : “37. As observed in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha vide SCC para 5:(SCC p.27) “5....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.” As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee v. McGrath:(US p. 179) “...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law”. 38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law”. 38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society’s assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience”. 12. Preventive detention as held in “A.K.Gopalan v. State of Madras” [ 1950 SCR 88 ] and reiterated in “Rekha v. State of Tamil Nadu” [ AIR 2011 SCW 2262 ] is by its very nature repugnant to democratic ideals and an anathema to the rule of law. The Supreme Court in Rekha’s case (supra), while emphasizing that Article 22(3)(b), Constitution of India, is to be read as an exception to Article 21, Constitution of India and not allowed to nullify the right to personal liberty guaranteed under the later, observed : “Since, however, Article 22 (3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal, but we must confine the power of preventive detention to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of India, which was won after long ardous, historic struggle. It follows therefore that if law of land (Indian Panel Code and other penal statues) can deal with the situation, recourse to the preventive detention law will be illegal.” 13. The Court further observed: “It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as jurisdiction of suspicion. The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.” 14. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.” 14. In “Kamleshwar Ishwar Prasad Patel Vs Union of India and Others” [(1995) 2 SCC 51] the Supreme court observed: “The history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue.” 15. Law on the subject was succinctly laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh Vs B. K. Jha and another [ (1987) 2 SCC 22 ] in following words: “The procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the Detaining Authority. The procedural requirements are, therefore to be strictly complied with if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard.” 16. The baseline, that emerges from the above overview of case law on the subject of preventive detention is that whenever preventive detention is called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteed under Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to. 17. Keeping in view the hallmark of the cherished right to liberty in keeping with the object of Article 21 of the Constitution of India, while exercising power to order preventive detention, various procedural and other safeguards available have to be respected and adhered to. It is the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing. 18. The cumulative effect of the aforesaid discussion leads to the only conclusion i.e. the order of detention impugned bearing No. 29/DMB/PSA of 2018-19 dated 03.01.2019, passed by District Magistrate, Bandipora, is not valid, as such, quashed. If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing. 18. The cumulative effect of the aforesaid discussion leads to the only conclusion i.e. the order of detention impugned bearing No. 29/DMB/PSA of 2018-19 dated 03.01.2019, passed by District Magistrate, Bandipora, is not valid, as such, quashed. The detenue is directed to be released from the preventive custody forthwith, unless, of course, not required in connection with any other case. 19. Registry to return the detention record to the learned counsel for the respondents.