Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 345 (JK)

Qadir Khan v. UT of J&K

2023-08-04

RAHUL BHARTI

body2023
JUDGMENT : 1. Personal liberty of a person known and recognized as a fundamental right is self-inhering right the enjoyment of which a person is guaranteed and guarded by none other than the Constitution of India. Thus, something which the Constitution of India itself guarantees and guards cannot be allowed to be fiddled with by an entity i.e. the State and its authorities which function under the aegis of the Constitution of India, except by following the strict regime of law under which such a fundamental right of a person can be impinged, curtailed or restricted. Preventive detention jurisdiction is one of such laws. 2. Preventive detention jurisdiction is, thus, a subject to be handled with care and caution envisaging and expecting legal maturity of the trustees entrusted with the authority to exercise the jurisdiction which is eventually meant to end in depriving a citizen of his personal liberty by reference to his potentiality rather than actuality for acts endangering the society and the State. Stakes of far reaching effects are envisaged and involved in each and every case of preventive detention both from the point of view of the State and the society and also the person facing/suffering preventive detention. 3. The preventive detention of a person is a safety serving for the State and the society but to carry out a preventive detention there are non-negotiable procedural checkmates and check-points which if ignored, by design or default, by a public authority/officials acting on behalf of the State to detain a person under preventive detention jurisdiction, then there is no scope for expecting a judicial diplomacy from a Constitutional Court to provide a let off to the wrong attending preventive detention of a person. Lost personal liberty of such a person to be restored even if the subjective satisfaction to tender a person in itself may be justifiable. The present case is one where the check-points have been punctured in effecting the preventive detention of the petitioner who has come asking to restore the snatched personal liberty. 4. Lost personal liberty of such a person to be restored even if the subjective satisfaction to tender a person in itself may be justifiable. The present case is one where the check-points have been punctured in effecting the preventive detention of the petitioner who has come asking to restore the snatched personal liberty. 4. The Senior Superintendent of Police (SSP), Udhampur (in short “SSP, Udhampur”), upon the basis of fact that the petitioner was found involved on two occasions at different points of time in his alleged commission of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act, 1985”), had considered the petitioner to be a fit case to suffer deprivation of his personal liberty in order to check his further indulgences in activities as may amount to offences under the NDPS Act, 1985. 5. The SSP, Udhampur compiled a dossier with respect to the petitioner bearing alleged facts upon the basis of which the case for preventive detention of the petitioner curtailing his personal liberty under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short “PIT NDPS Act, 1988”) was allegedly made out to be presented before the authority vested with the power to order preventive detention. It is this act of the SSP, Udhampur which resulted in preventive detention of the petitioner who has now come forward to impugn his preventive detention order terming it to be illegal and unconstitutional. 6. The chronology of the case relates back to booking of the petitioner in FIR no. 63/2021 dated 30.06.2021 with the Police Station Majalta that being the first of two FIRs for alleged acts of commission of offences under the NDPS Act, 1985 on the part of the petitioner and the second being FIR no. 412/2021 dated 29.10.2021 with the Police Station Udhampur under the NDPS Act, 1985. 7. The SSP, Udhampur came to compile and submit a Dossier no.Conf./Dossier/445-48 dated 20.12.2022 to the respondent no. 2 -Divisional Commissioner, Jammu urging thereby that the petitioner is a notorious criminal/drug peddler who is involved in number of criminal acts and transportation of drug consignments in district Udhampur for which there is no other way to prevent him from indulging in such activities and to curb the circulation of drug menace in the society other than getting the petitioner under preventive detention. The dossier so submitted by the SSP, Udhampur to the respondent no. 2 – the Divisional Commissioner, Jammu was comprised of 30 leaves as mentioned in the dossier forwarding communication no.Conf./Dossier/445-48 dated 20.12.2022. 8. A perusal of the dossier so submitted would reveal that in the name of factual content, the SSP, Udhampur cited two FIRs involving the petitioner with respect to alleged commission of offences under the NDPS Act of 1985 and rest is opinion filled amounting to characterization of the petitioner in bad description. 9. First FIR no. 63/2021 dated 30.06.2021 cited against the petitioner is under section 8/21/22 of the NDPS Act 1985 registered with the Police Station Majalta on 30.06.2021 in which case the petitioner, while he was walking towards Majalta from Satrari road upon his personal search was found possessing alleged contraband in the form of Diacetyl Morphine (Heroine). In this FIR, a final Police Report no. 65/2021 dated 16.07.2021 under section 173 of the Criminal Procedure Code, 1973 is said to have been presented by the Police Station concerned before a competent court of law. In this case, the petitioner is said to have been granted bail by the Principal Sessions Judge, Udhampur. 10. Second FIR referred by the SSP, Udhampur in his dossier is FIR no. 412/2021 dated 29.10.2021 under section 8/21/22 of the NDPS Act 1985 registered with the Police Station Udhampur in which the petitioner along with one Sushil Sharma came to be implicated while they were riding a Mahindra Bolero and upon being stopped by the Police at the Nakka Point Jakhani at about 1130 hours, alleged recovery of contraband was effected from them. In this regard, final Police Report (Challan) no. 02/2022 dated 04.01.2022 is said to have been presented and now under trial before a competent criminal court of law against the petitioner. The contraband allegedly recovered is Diacetyl Morphine (Heroine) which is not of a commercial quantity and the two accused are said to be on bail from the stage of investigation itself. 11. In addition to these two FIRs, the petitioner has been named in four Daily Diaries no. 12 dated 02.11.2022, no. 14 dated 15.11.2022, no. 6 dated 22.11.2022 and no. 13 dated 09.12.2022 by the Police Station Majalta on account of the suspicious movement alleged against the petitioner with regard to sale and purchase of illegal drugs. 11. In addition to these two FIRs, the petitioner has been named in four Daily Diaries no. 12 dated 02.11.2022, no. 14 dated 15.11.2022, no. 6 dated 22.11.2022 and no. 13 dated 09.12.2022 by the Police Station Majalta on account of the suspicious movement alleged against the petitioner with regard to sale and purchase of illegal drugs. Details of these Daily Diaries against the petitioner have not been spelled out in the Dossier by the SSP, Udhampur, though copies enclosed with the Dossier. 12. It is upon the basis of the aforesaid two FIRs and four Daily Dairies, the SSP, Udhampur came to characterize the petitioner as a notorious/hardcore habitual criminal, desperate character and a drug peddler who being a habitual offender is involved in many criminal offences and blatantly violating the rule of law include drug addiction and thereby horrifying the innocent citizens. The petitioner is branded to be a history sheeter whose activities were highly prejudicial to the maintenance of public order as well as to the security of the society/public peace and tranquility. 13. The respondent no. 2 – Divisional Commissioner, Jammu upon getting seized of the dossier so submitted by the SSP, Udhampur came to pass a detention order no. PITNDPS 42 of 2022 dated 21.12.2022 upon purported satisfaction that the petitioner is engaged in repeated illicit traffic in narcotic drugs and psychotropic substances which poses a serious threat to the health and welfare of the people and with a view to prevent him from committing any of the acts amounting to offences and to save the younger generation from use and occupation of drugs the case of the petitioner’s preventive detention was made out. 14. In terms of this detention order, the respondent no. 2 – Divisional Commissioner, Jammu came to order preventive detention of the petitioner for a period to be specified by the Government. The order of detention so passed by the respondent no. 2 – Divisional Commissioner, Jammu is based upon the grounds of detention accompanying the said order of detention and is a verbatim repeat of the SSP, Jammu submitted dossier bearing ritual sake reference of satisfaction of the respondent no. 2- Divisional Commissioner, Jammu. 15. The respondent no. 2 – Divisional Commissioner, Jammu came to address a communication no. 601/RA/Detention/23 (7091318) dated 21.12.2022 to the petitioner thereby informing him about the passing of the detention order no. 2- Divisional Commissioner, Jammu. 15. The respondent no. 2 – Divisional Commissioner, Jammu came to address a communication no. 601/RA/Detention/23 (7091318) dated 21.12.2022 to the petitioner thereby informing him about the passing of the detention order no. PITNDPS 42 of 2022 dated 21.12.2022 against him further informing the petitioner about the grounds of detention accompanying the detention order and also about the right of the petitioner to make a representation to the Government against the detention order. 16. This aforementioned communication of the respondent no. 2 – Divisional Commissioner, Jammu is comprised of four leaves, that being two page detention order and two page grounds of detention. This fact is clearly reflected in the communication no. 601/RA/Detention/23(7091318) dated 21.12.2022 of the respondent no. 2 – Divisional Commissioner, Jammu. 17. The respondent no. 2 – Divisional Commissioner, Jammu came to submit vide communication no. 601/RA/Detention/ 23(7091318) dated 21.12.2022, the detention case of the petitioner to the Financial Commissioner (Additional Chief Secretary), Home Department, J&K for seeking approval of the Government to the detention order and for determination of the period of detention. 18. The detention order against the petitioner came to be executed by PSI Jaipal Singh, PID no. EXJ-196633 of the Police Station Majalta, the fact about which the Superintendent District Jail Amphalla, Jammu came to notify the Deputy Secretary to Govt. Home Department, UT of J&K, Jammu vide communication no. DJJ/DET/22/8139-48 dated 22.12.2022 by referring to the petitioner as a PSA detenue. 19. Upon the basis of the execution of the said detention warrant, the petitioner came to be lodged in the District Jail Amphalla, Jammu against execution of a PSA warrant relating to the petitioner and his handing over the District Jail Amphalla, Jammu. There is an Execution Report bearing the signatures of the petitioner as well as the detention order executing officer PSI Jaipal Singh, and also of the Assistant Superintendent District Jail Amphalla, Jammu, but which bears the signatures of Assistant Superintendent District Jail Amphalla, Jammu to be of 22.12.2022 but without any number wherein the fact of PSI Jaipal Singh taking the custody of the petitioner on 21.12.2022 in village Satrari in execution of the detention warrant and the execution of the warrant at village Satrari on 21.12.2022 stands registered. 20. 20. This Execution Report further states that notice of the detention order was given to the petitioner by reading over and explained to him in Urdu/Hindi/Dogri language understood fully by the petitioner, in acknowledgement of which the petitioner’s signatures came to be obtained on the execution report as mark A. 21. Interestingly, it is in the Receipt of Grounds of Detention a fact is mentioned that the petitioner came to be handed over detention warrant (02 leaves), grounds of detention (02 leaves), copy of dossier (04 leaves), DDR no. 12 dated 02.11.2022 of P/S Majalta (01 leaf), DDR no. 14 dated 15.11.2022 of P/S Majalta (01 leaf), DDR no. 06 dated 22.11.2022 of P/S Majalta (01 leaf), DDR no. 13 dated 09.12.2022 P/S Majalta (01 leaf), copy of FIR no. 63/2021 P/S Majalta (04 leaves), Final Report of case FIR no. 63/2021 (06 leaves), Seizure memo of case FIR no. 63/2021 (01 leaf), FSL report of case FIR no. 63/2021 (01 leaf), copy of case FIR no. 412/2021 of P/S Udhampur (03 leaves), Final report of case FIR no. 412/2021 P/S Udhampur (05 leaves), Seizure memo of case FIR no. 412/2021 of P/S Udhampur (02 leaves) and FSL report of case FIR no. 412/2021 of P/S Udhampur (02 leaves) in the District Jail Amphalla, Jammu on an unmentioned date against proper receipt and that the petitioner was informed that he could make a representation to the Government as well as to the Detaining Authority against the detention order, if he so desired. 22. The detention case so submitted by the respondent no. 2 – Divisional Commissioner, Jammu along with the purported representation of the petitioner came to be referred by the Govt. of UT of Jammu & Kashmir acting through its Home Department vide its communication no.Home/PB-V/1008/2022/7092371 dated 18.01.2023 to the Advisory Board for its opinion which came to be tendered in terms of report dated 23.01.2023 with the remarks about sufficiency of the cause for detention of the petitioner. 23. This opinion enabled the Govt. of UT of Jammu & Kashmir, acting through the Home Department, to exercise its power under section 9(f) read with section 11 of the PIT NDPS Act, 1988 thereby confirming the detention order of the petitioner no. PITNDPS 42 of 2022 dated 21.12.2022 passed by the respondent no. 23. This opinion enabled the Govt. of UT of Jammu & Kashmir, acting through the Home Department, to exercise its power under section 9(f) read with section 11 of the PIT NDPS Act, 1988 thereby confirming the detention order of the petitioner no. PITNDPS 42 of 2022 dated 21.12.2022 passed by the respondent no. 2 – Divisional Commissioner, Jammu and thereby directing the detention of the petitioner for a period of one year with the place of lodgement being District Jail Amphalla, Jammu. This confirmation came to be effected vide Govt. Order no. Home/PB-V/256 of 2023 dated 07.02.2023 issued by the Financial Commissioner (Additional Chief Secretary), Home Department, UT of J&K. 24. It is in the backdrop of the aforesaid facts and circumstances of the case, the petitioner has sought quashment of his preventive detention by filing the writ petition inter alia on the grounds that his detention order was misconceived and that he was not supplied with all the requisite documents on the basis of which the respondent no. 2-the Divisional Commissioner, Jammu had proceeded to pass the detention order against the petitioner on account of which the petitioner has been prejudiced in defending his position against the said preventive detention. The petitioner has averred that the routine procedure of law is in action against him with respect to the accusation against him as framed with respect to two FIRS and as such resort to preventive detention was only to serve as beforehand punishment to the petitioner without a before judgment from the criminal court of law seized of the cases. 25. This Court has heard the submissions of the learned counsel for the petitioner as well as the learned counsel for the respondents. This Court has perused the record of detention produced from the end of the respondent no. 2- the Divisional Commissioner, Jammu. 26. The detention record produced from the end of the respondent no. 2- the Divisional Commissioner, Jammu bears a puzzling point as to when the respondent no. 2- the Divisional Commissioner, Jammu in addressing his communication no. This Court has perused the record of detention produced from the end of the respondent no. 2- the Divisional Commissioner, Jammu. 26. The detention record produced from the end of the respondent no. 2- the Divisional Commissioner, Jammu bears a puzzling point as to when the respondent no. 2- the Divisional Commissioner, Jammu in addressing his communication no. 601/RA/Detention/23 (7091318) dated 21.12.2022 addressed to the petitioner meaning to apprise the petitioner about the fact of his preventive detention, has himself recorded that his said communication has only four (04) leaves as accompaniment which comprised of two (02) leaves of the detention order and two (02) leaves of the grounds of detention, then how come at the time of execution of detention order so passed by the respondent no. 2- the Divisional Commissioner, Jammu, the executing office PSI Jaipal Singh came to have at his disposal the entire set of dossier of 30 leaves available with him so as to be delivered along with the respondent no. 2- the Divisional Commissioner, Jammu’s two leaves detention order no. PITNDPS 42 of 2022 dated 21.12.2022 read with two leaves grounds of detention to the petitioner. It is a matter of wild guess to be avoided by this Court particularly when the respondents have not explained it at their own. This Court has no basis and reason to accept that it is the respondent no. 2- the Divisional Commissioner, Jammu who had actually forwarded the complete set of documents accompanying the communication no.Conf./Dossier/445-48 dated 20.12.2022 addressed to the petitioner whereby the petitioner was informed about his detention order and the grounds of detention therewith as with this communication of the respondent no. 2- the Divisional Commissioner, Jammu, the petitioner was meant to be served only with four leaves of enclosures accompanying the said communication. 27. This glaring gap between what the respondent no. 2- the Divisional Commissioner, Jammu was meaning to do and direct and what PSI Jaipal Singh came to carry out is a matter not to be ignored by a Constitutional Court by taking it as a casual coincidence or slip of application of mind on the part of the respondent no. 2- the Divisional Commissioner, Jammu only getting rectified by PSI Jaipal Singh while executing the detention order. 28. 2- the Divisional Commissioner, Jammu only getting rectified by PSI Jaipal Singh while executing the detention order. 28. It is very obvious that there was an extra legal exercise which was at play which resulted in purportedly handing over the complete set of 30 leaves dossier to PSI Jaipal Singh to be delivered along with the communication no. 601/RA/Detention/23 (7091318) dated 21.12.2022 of the respondent no. 2- the Divisional Commissioner, Jammu bearing the order of detention along with the grounds of detention which was meant to be delivered to the petitioner. 29. It was incumbent upon the respondent no. 2- the Divisional Commissioner, Jammu to have explained in his counter affidavit to the writ petition as to how come the petitioner came to be delivered with a complete set of dossier by PSI Jaipal Singh when the respondent no. 2- the Divisional Commissioner, Jammu had not forwarded the same along with his communication no. 601/RA/Detention/23 (7091318) dated 21.12.2022. This misstep at end of the respondent no. 2- the Divisional Commissioner, Jammu invites and casts a serious doubt about the genuineness of the rest of the proceedings purportedly carried out by PSI Jaipal Singh in the context of arresting the petitioner by taking the person of the petitioner under custody, the place of execution of the detention order and the manner of informing/apprising the petitioner about the order of detention so passed by the respondent no. 2- the Divisional Commissioner, Jammu and the reading and explaining of the grounds of detention to the petitioner by PSI Jaipal Singh. All seems to be word play at the end of PSI Jaipal Singh for the sake of paper work in which the petitioner was left clueless about what was being intended by the respondent no. 2- the Divisional Commissioner, Jammu and what was actually done by PSI Jaipal Singh at his own. 30. The very fact that there was an extra legal exercise in play in carrying out the detention of the petitioner is exhibited from the fact that in his communication no. 601/RA/Detention/23 (7091318) dated 21.12.2022 the respondent no. 2- the Divisional Commissioner, Jammu and what was actually done by PSI Jaipal Singh at his own. 30. The very fact that there was an extra legal exercise in play in carrying out the detention of the petitioner is exhibited from the fact that in his communication no. 601/RA/Detention/23 (7091318) dated 21.12.2022 the respondent no. 2- the Divisional Commissioner, Jammu is meaning to apprise/inform the petitioner about his right to make a representation to the Government but when it comes to the matter of execution of the order of detention, PSI Jaipal Singh in the execution report endorses a fact that the petitioner has been apprised of his right to make representation against his detention not only to the Government but even to the detaining authority. 31. Thus, what was not being afforded by the respondent no. 2- the Divisional Commissioner, Jammu as being the detaining authority to the petitioner was being extended by PSI Jaipal Singh in the context of making of a representation by the petitioner against his detention to the detaining authority. All this exposes the very shamness of the exercise with respect to the detention of the petitioner. 32. The detention record perused by this Court while confirming the fact that the petitioner came to be detained on 22.11.2022 but the Home Department of UT of Jammu & Kashmir in its communication no. Home/PB-V/1008/2022 (7092371) dated 23.12.2022 addressed to the Additional Secretary, IAS-II Division, Ministry of Home Affairs, New Delhi and the Under Secretary to the Govt. of India, Ministry of Finance was stating a position that the detention warrant with respect to the petitioner had not been executed yet i.e. by 23.12.2022 whereas the fact is that the detention order had come to be executed as per the record on 22.12.2022. 33. Thus, the Home Department, Govt. of UT of Jammu & Kashmir was found acting in ignorance of the actual state of affairs pertaining to the very date of detention of the petitioner and is a reflective of the fact that the detention of a person is taken with all callousness at the end of the officials/authorities who are supposed to act to the best of their application of mind in the matter of handling the preventive detention of a person. 34. 34. Lapse in procedure on the part of the public authority/official in dealing with the preventive detention of a person is not excusable because the person suffering detention supposed to have acquiesced to any such lapse on the part of the public authority/official. 35. Preventive detention jurisprudence is served in letter and spirit only by reference to the procedural safeguard and fairness which if compromised, even by an iota, at the end of the detaining authority or the sponsoring authority in all consequences results in erosion of the very exercise of preventive detention jurisdiction against a detenu. 36. This Court needs to be take notice of the seriousness of preventive detention jurisdiction as discerned by the Hon’ble Supreme Court of India in its judgements delivered from time to time without any repose. 37. In the case of “Pramod Singla Vs Union of India and others,” reported in 2023 SCC Online SC 374, the Hon’ble Supreme Court has observed in para 21 as under:- “21. Before we deal with the issues framed, we find it important to note that preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the Courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue.” 38. In the case of “Rekha Vs State of Tamil Nadu through Secretary to Government and another,” reported in (2011) 5 SCC 244 , the Hon’ble Supreme Court has stated the position as under:- 21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? 29. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? 29. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). 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 within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. 35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', (Vide State of Maharashtra Vs. Bhaurao Punjabrao Gawande. 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 detenu 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. 36. It has been held that the history of liberty is the history of procedural safeguards. (See: Kamleshkumar Ishwardas Patel Vs. Union of India and others). 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 the alleged activities of the detenu. As observed in Rattan Singh Vs. (See: Kamleshkumar Ishwardas Patel Vs. Union of India and others). 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 the alleged activities of the detenu. As observed in Rattan Singh Vs. State of Punjab, (1981) 4 SCC 1981 :- "4 … May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus." 39. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale's case, (1881) 6 QBD 376 : "Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue." 39. In the case of “Francis Coralie Mullin Vs Administrator, Union Territory of Delhi and others,” reported in (1981) SCC 608:- “4. Now it is necessary to bear in mind the distinction between 'preventive detention' and punitive detention', when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. There is a vital distinction between these two kinds of detention. 'Punitive detention' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Art. 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Art. 22, there is also Art. 21 which lays down restrictions on the power of preventive detention. Until the decision of this Court in Maneka Gandhi. v. Union of India, a very narrow and constricted meaning was given to the guarantee embodied in Art. 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Art. 21. But in Maneka Gandhi's case (supra), this Court for the first time opened-up a new dimension of Art. 21 and laid down that Art. 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. But in Maneka Gandhi's case (supra), this Court for the first time opened-up a new dimension of Art. 21 and laid down that Art. 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Art. 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Art. 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Maneka Gandhi's case became the starting point-the-spring-board-for a most spectacular evolution the law culminating in the decisions in M.H. Hoscot v. State of Maharashtra, Hussainara Khatoon's case, the first Sunil Batra's case and the second Sunil Batra's case. The position now is that Art. 21 as interpreted in Maneka Gandhi's case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Art. 22, but also of Art. 21 and if the constitutional validity of any such law is challenged, the Court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal." 40. In the case of “Nand Lal Bajaj Vs State of Punjab and another,” reported in (1981) 4 SCC 327 , the Hon’ble Supreme Court has stated the position as under:- “9. Among the concurring opinions, Krishna Iyer, J., although he generally agreed with Bhagwati, J., goes a step forward by observing: Procedural safeguards are the indispensable essence of liberty. In fact, the history of procedural safeguards and the right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights: observance of fundamental rights is not regarded as good politics and their transgression as bad politics. In short, the history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is, therefore, of prime importance to the body politic.” 41. In short, the history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is, therefore, of prime importance to the body politic.” 41. In the backdrop of the facts and circumstances of the case and bearing in mind the sacrosanct declarations of the Hon’ble Supreme Court of India as reproduced herein before by reference to the judgments cited, this Court is led to an inviting conclusion that the procedural aspect attending the preventive detention of the petitioner was seriously compromised on account of acts of commission and omission at the end of the Detaining Authority that being the respondent no. 2- the Divisional Commissioner, Jammu followed by the Govt. of UT of Jammu & Kashmir and, therefore, the preventive detention of the petitioner cannot be allowed to sustain. Thus, the detention order no. PITNDPS 42 of 2022 dated 21.12.2022 read with Govt. Order no. Home/PB-V/256 of 2023 dated 07.02.2023 passed by the Home Department, UT of J&K are hereby quashed and the petitioner is directed to be restored to his personal liberty. The respondent no. 2- the Divisional Commissioner, Jammu to ensure the release of the petitioner from the confines of District Jail Amphalla, Jammu. Writ petition is, accordingly, disposed of. 42. Record produced by Mr. Sumeet Bhatia, learned GA be returned back.