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2023 DIGILAW 353 (JK)

Anoop Sharma through Bimla Devi 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 by 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 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. To carry out a preventive detention of a person, 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, in detaining 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/omission/error attending preventive detention of a person. Lost personal liberty of such a person is to be restored even if the subjective satisfaction to detain 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 is to be restored even if the subjective satisfaction to detain 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), Jammu (in short “SSP, Jammu”), upon the basis of fact that the petitioner was found involved on five occasions at different points of time in the 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 Jammu 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 Jammu 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. 225/2017 with the Police Station Satwari, Jammu that being the first FIR for alleged acts of commission of offences under the NDPS Act, 1985 on the part of the petitioner and the last being FIR no. 79/2022 with the Police Station Satwari, Jammu under the NDPS Act, 1985. 7. The SSP, Jammu came to compile and submit a Dossier no.CRB/Dossier/2022/13/DPOJ dated 22.09.2022 to the respondent no. 2- Divisional Commissioner, Jammu urging thereby that the petitioner is a part of vicious network of drug traffickers and dealers who is involved in various drug trafficking cases 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, Jammu to the respondent no. The dossier so submitted by the SSP, Jammu to the respondent no. 2 – the Divisional Commissioner, Jammu was comprised of 98 leaves. 8. A perusal of the dossier so submitted would reveal that in the name of factual content, the SSP, Jammu cited five (5) FIRs involving the petitioner with respect to alleged commission of offences under the Act of 1985 and rest is opinion filled amounting to characterization of the petitioner in bad description. 9. First FIR no. 225/2017 cited against the petitioner is under section 8/21/22 of the NDPS Act 1985 registered with the Police Station, Satwari on 13.11.2017 in which case the petitioner, while he was walking towards upper Gadigarh road, upon his personal search was found possessing alleged contraband in the form of Diacetylmorphine (Heroine). In this FIR, a final Police Report under section 173 of the Jammu & Kashmir Criminal Procedure Code, Svt. 1989 is said to have been presented by the Police Station concerned before a competent court of law. 10. Second FIR referred by the SSP, Jammu in his dossier is FIR no. 66/2018 under section 8/21/22 of the NDPS Act 1985 registered again with the Police Station Satwari in which the petitioner along with one Mohinder Singh came to be implicated while they were riding a motorcycle coming from Bhour Camp towards Peer Baba and upon being stopped by the Police at the Nakka point, alleged recovery of contraband was effected from them. In this regard, final Police Report (Challan) no. 139/2019 dated 27.11.2019 is said to have been presented and now under trial before a competent court of law against the petitioner. The contraband allegedly recovered is Diacetylmorphine (Heroine). 11. 3rd FIR in the Dossier is FIR no. 0192/2019 dated 12.09.2019 under section 8/21/22 of the NDPS Act 1985. This FIR is also registered with the Police Station Satwari which has led to the filing of the Police Report no. 123/2019 dated 25.10.2019 for alleged possession of contraband Diacetylmorphine (Heroine) by the petitioner. 12. Fourth one is FIR no. 157/2021 dated 06.06.2021 registered with the Police Station Satwari for alleged commission of offence under section 8/21/22 of the NDPS Act 1985 in which final Police Report no. 01 of 2021 is said to have been filed and presented before the competent criminal court of law. In this FIR also the alleged contraband is Diacetylmorphine (Heroine). 13. 157/2021 dated 06.06.2021 registered with the Police Station Satwari for alleged commission of offence under section 8/21/22 of the NDPS Act 1985 in which final Police Report no. 01 of 2021 is said to have been filed and presented before the competent criminal court of law. In this FIR also the alleged contraband is Diacetylmorphine (Heroine). 13. Last FIR referred against the petitioner in the dossier is FIR no. 79/2022 of 2022 dated 22.07.2022 registered with the Police Station Miran Sahib. In this FIR, the Police Investigation is said to be under currency and the alleged contraband recovered is Diacetylmorphine (Heroine). 14. It is upon the basis of the aforesaid five FIRs, the SSP, Jammu 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 using illegal fire arms for carrying out his criminal activities/drug peddler activities and thereby terrorizing the innocent citizens. The petitioner is branded to be a chronic criminal whose activities were highly prejudicial to the maintenance of public order as well as to the security of the society/public peace and tranquility. 15. The SSP, Jammu compiled dossier carried an interrogation report/profile of the petitioner in which the petitioner has been referred to be a drug addict. Except with respect to grant of bail in relation to FIR no. 0225/2017, the dossier did not contain any reference document pertaining to grant/denial of bail to the petitioner in all other four cases. 16. The SSP, Jammu, after submission of dossier to the respondent no. 2 – Divisional Commissioner, Jammu, came forward with a communication no.CRB/Dossier/2022/13/DPOJ dated 22.09.2022 thereby carrying out some rectification to the dossier no. CRB/2022/13/DPOJ dated 15.09.2022. It is not gatherable as to in what context and what is the rectification carried out by the SSP, Jammu to the dossier submitted against the petitioner to the respondent no. 2 – Divisional Commissioner, Jammu. 17. After the purported rectification so effected to the dossier against the petitioner, the SSP, Jammu again come forward with a communication no. CRB/2022/13/DPOJ dated 27.09.2022 addressed to the respondent no. 2 – Divisional Commissioner, Jammu in reference to a telephonic communication of him with the respondent no. 2 – Divisional Commissioner, Jammu. 2 – Divisional Commissioner, Jammu. 17. After the purported rectification so effected to the dossier against the petitioner, the SSP, Jammu again come forward with a communication no. CRB/2022/13/DPOJ dated 27.09.2022 addressed to the respondent no. 2 – Divisional Commissioner, Jammu in reference to a telephonic communication of him with the respondent no. 2 – Divisional Commissioner, Jammu. In this communication, the SSP, Jammu came to identify the quantity of the contraband allegedly recovered from the petitioner with respect to the five FIRs referred in the dossier. In this communication, the SSP, Jammu mentioned the following particulars:- Sr. No. FIR No. Offence & P/S Recovery 1 255/2017 U/S 8/21/22/25 NDPS Act of P/S Satwari 5.5 grams Heroine 2 66/2018 U/s 8/21/22/27 NDPS Act of P/S Satwari 4.5 grams Heroine 3 192/2019 U/S 8/21/22 NDPS Act of P/S Satwari 23.74 grams Heroine 4 157/2021 U/S 8/21/22 NDPS Act of P/S Satwari 3 grams Heroine 5 79/2022 U/S 8/21/22/60 NDPS Act P/S Miran Sahib 42.74 grams Heroine 18. The respondent no. 2 – Divisional Commissioner, Jammu upon getting seized of the dossier so submitted by the SSP, Jammu came to pass a detention order no. PITNDPS 22 of 2022 dated 27.09.2022 upon purported satisfaction that the petitioner is engaged in repeated manner in 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. 19. In terms of this detention order, the respondent no. 2 – Divisional Commissioner, Jammu came to order preventive detention of the petitioner for a period 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 repeat of the SSP, Jammu submitted dossier. 20. The respondent no. 2 – Divisional Commissioner, Jammu came to address a communication no. 601/RA/Detention/4226-27 dated 27.09.2022 against him to the petitioner thereby informing him about the passing of the detention order no. 20. The respondent no. 2 – Divisional Commissioner, Jammu came to address a communication no. 601/RA/Detention/4226-27 dated 27.09.2022 against him to the petitioner thereby informing him about the passing of the detention order no. PITNDPS 22 of 2022 dated 27.09.2022 and thereby 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. 21. This aforementioned communication of the respondent no. 2 – Divisional Commissioner, Jammu is comprised of five leaves that being the detention order and the grounds of detention. This fact is clearly reflected in the communication no. 601/RA/Detention/4226-27 dated 27.09.2022 of the respondent no. 2 – Divisional Commissioner, Jammu. 22. The respondent no. 2 – Divisional Commissioner, Jammu came to submit 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. 23. The detention order against the petitioner came to be executed by PSI Mohd. Altaf, PID no. EXJ-196287 of the Police Station Miran Sahib, Jammu, a fact about which the SSP, Jammu came to notify the Principal Secretary to Govt. Home Department, UT of J&K, Jammu vide communication no. CRB/Execution Report/22/DPOJ dated 04.11.2022. 24. Upon the basis of the execution of the said detention warrant, the petitioner came to be lodged in the Central Jail, Kot Bhalwal, Jammu against furnishing of a receipt relating to lodgment of the petitioner in the Central Jail, Kot Bhalwal, Jammu. The detention order executing officer PSI Mohd. Altaf of Police Station Miran Sahib, Jammu came to tender a written statement from his end saying therein that he had briefed the petitioner about the grounds of detention in the language as understood fully by the petitioner. However, said officer did not state in his said written statement that he had briefed the petitioner about his right to make a representation against his detention order to the Government. 25. On the contrary, there is an Execution Report bearing the signatures of the petitioner as well as the detention order executing officer PSI Mohd. However, said officer did not state in his said written statement that he had briefed the petitioner about his right to make a representation against his detention order to the Government. 25. On the contrary, there is an Execution Report bearing the signatures of the petitioner as well as the detention order executing officer PSI Mohd. Altaf, and also of the Superintendent Jail, Central Jail, Kot Bhalwal, Jammu, but which bears no date and number, wherein the fact of PSI Mohd Altaf taking the custody of the petitioner on 10.10.2022 in execution of the detention warrant and the execution of the warrant at Central Jail, Kot Bhalwal, Jammu on 10.10.2022 stands registered. 26. This Execution Report further states that notice of the detention was given to the petitioner along with the contents of the detention warrant and the grounds of detention having been read over to the petitioner in english language and explained in hindi/dogri language as understood by the petitioner, in acknowledgement of which the petitioner’s signatures came to be obtained on the execution report as mark A. Interestingly, it is in this Execution Report a fact is mentioned that the petitioner came to be handed over detention order (02 leaves), Notice of detention (01 leaf), grounds of detention (03 leaves), Dossier of detention (06 leaves), Copies of FIR, Statements of witnesses and other related relevant documents (94 leaves) (total 106 leaves) in the Central Jail, Kot Bhalwal, Jammu on 10.10.2022 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. 27. In addition, there is a receipt of grounds of detention and other relevant record bearing in-box signatures of the petitioner along with the signatures of PSI Mohd. Altaf. This receipt is also un-numbered and un-dated. 28. The detention order so submitted by the respondent no. 2 – Divisional Commissioner, Jammu came to be referred by the Govt. of UT of Jammu & Kashmir, acting through its Home Department, to the Advisory Board for its opinion which came to be tendered in terms of communication dated 17.02.2022 with the remarks about sufficiency of the cause for detention of the petitioner. 29. This opinion enabled the Govt. 2 – Divisional Commissioner, Jammu came to be referred by the Govt. of UT of Jammu & Kashmir, acting through its Home Department, to the Advisory Board for its opinion which came to be tendered in terms of communication dated 17.02.2022 with the remarks about sufficiency of the cause for detention of the petitioner. 29. 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 PITNDPS Act, 1988 thereby confirming the detention order no. PITNDPS 22 of 2022 dated 27.09.2022 passed by the respondent no. 2 – Divisional Commissioner, Jammu and thereby directing the detention of the petitioner for a period of one year and the place of lodgement being Central Jail, Kot Bhalwal, Jammu. This confirmation came to be effected vide Govt. Order no. Home/PB-V/2764 of 2022 dated 03.11.2022 issued by the Financial Commissioner (Additional Chief Secretary), Home Department, UT of J&K. 30. 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 the petitioner has an aged mother and wife who were least aware about the detention of the petitioner leading them to desperate inquiries to know about the whereabouts of the petitioner only to be apprised that the petitioner has been lodged in the Central Jail, Kot Bhalwal, Jammu. 31. It is pleaded in the writ petition that it is the mother of the petitioner who came to procure the detention order and other relevant documents pertaining to the petitioner. In throwing challenge to the detention, the petitioner has referred that it is the SHO of the Police Station concerned who was after the petitioner on account of personal ill-will as a result whereof the petitioner came to be framed in baseless FIRs and that at the time of being taken under detention the petitioner was provided only with a copy of the forwarding letter dated 27.09.2022, which was accompanied with detention order and the grounds of detention and nothing else and that the petitioner was not explained about the reasons of his detention. The petitioner’s challenge also proceeds on the allegation that no material supporting the purported preventive detention of the petitioner was provided to him much less the FIRs so referred in the order of detention. 32. 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. 33. 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/4226-27 dated 27.09.2022 addressed to the petitioner meaning to apprise the petitioner about the fact of his preventive detention, himself recorded that his communication has only five leaves as accompaniment, which comprised of two leaves of the detention order and three 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 Mohd. Altaf came to have at his disposal the entire set of dossier of 98 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 22 of 2022 dated 27.09.2022 read with three 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. 601/RA/Detention/4226-27 dated 27.09.2022 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 05 leaves of enclosures accompanying the said communication. 34. This glaring gap between what the respondent no. 2- the Divisional Commissioner, Jammu was meaning to do and direct and what PSI Mohd. 2- the Divisional Commissioner, Jammu, the petitioner was meant to be served only with 05 leaves of enclosures accompanying the said communication. 34. This glaring gap between what the respondent no. 2- the Divisional Commissioner, Jammu was meaning to do and direct and what PSI Mohd. Altaf 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 Mohd. Altaf while executing the detention order. 35. 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 dossier to PSI Mohd. Altaf to be delivered along with the communication no.601/RA/Detention/4226-27 dated 27.09.2022 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. 36. 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 Mohd. Altaf when the respondent no. 2- the Divisional Commissioner, Jammu had not forwarded the same along with his communication no. no. 601/RA/Detention/4226-27 dated 27.09.2022. 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 Mohd. Altaf 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 Mohd. Altaf. All seems to be word play at the end of PSI Mohd. Altaf 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 Mohd. Altaf at his own. 37. Altaf. All seems to be word play at the end of PSI Mohd. Altaf 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 Mohd. Altaf at his own. 37. 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/4226-27 dated 27.09.2022 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 Mohd. Altaf 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. 38. 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 Mohd. Altaf 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. 39. 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. 40. 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. 41. 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. 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.” 42. 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. 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. 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. 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. 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." 43. 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. 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. 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. 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. 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. 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." 44. 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.” 45. 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 22 of 2022 dated 27.09.2022 read with Govt. Order no.Home/PB-V/2764 of 2022 dated 03.11.2022 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 Central Jail, Kot Bhalwal, Jammu. Writ petition is, accordingly, disposed of. 46. Order no.Home/PB-V/2764 of 2022 dated 03.11.2022 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 Central Jail, Kot Bhalwal, Jammu. Writ petition is, accordingly, disposed of. 46. Record produced by Mr. Pawan Dev Singh, learned Dy. AG be returned back.