ORDER : 1. The petitioner herein has thrown challenge to order of detention No. Home/PB-V/1183 of 2023 dated 31.05.2023 (for short “the impugned order”) passed by the respondent 2 herein under and in terms of the provisions of the J&K Public Safety Act, 1978 (for short “the Act of 1978”). 2. The grounds urged in the petition against the impugned order being relevant and significant herein are extracted and reproduced hereunder:- i. For, the power of preventive detention available with the respondents is extraordinary in nature being an exception to the constitutional guarantees of freedom and liberty available to the Citizens, and therefore, can only be exercised within the strict confines of law as drawn by the legislature. It is trite in law, the detenu in this case, in view of the article 22(5) of the Constitution of India, is required to be furnished with particulars of grounds of his detention as also mandated in section 13(1) of the Public Safety Act. This requirement is not an empty formality that can be brushed aside but is a Constitutional requirement/obligation that must be followed in letter and spirit. The purpose behind this requirement is that the person being detained must be clearly and sufficiently, in the language understood by him (in present case it being Urdu) be informed of the reason for his preventive detention. The orders weren’t even explained to the Petitioner. As is evident, from the annexed impugned orders, it is cannot be claimed by the respondents that merely by handing over an order in a language not understood by the detenu, who is an illiterate person, the respondents have communicated grounds of detention to him. The respondents seem to have paid only a lip service to the constitutional safeguards as well as statutory requirements under Public Safety Act. Hence, the petitioner’s detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21. On this ground alone, the detention of the petitioner is illegal and the impugned order is therefore liable to be quashed and consequently, Petitioner must be released. ii. Hence, the petitioner’s detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21. On this ground alone, the detention of the petitioner is illegal and the impugned order is therefore liable to be quashed and consequently, Petitioner must be released. ii. For, furnishing the material in English and not the language of the detenue; and not informing detenue of his right to make representation before the Detaining Authority or the Government, all reflect that the Detaining Authority has not applied its mind to draw the subjective satisfaction to detain the petitioner and detenue has also been deprived of his fundamental right to make effective and meaningful representation against the detention order to the Detaining Authority and the government. iii. For, the detenu has to be informed about his right to make a representation to the Government against an order of his Detention. This safeguard against arbitrary exercise of power contained in the Public Safety Act is in adherence to the larger Constitutional Safeguard of Article 22(5). As is evident from the impugned order No. Home/PB-V/1183 of 2023 dated 31.05.2023, the impugned detention Order No. 01/DM/DODA/PSA/2023 dated 03.05.2023 was approved by the Respondent no. 1 in less than twenty four hours and sent to the Advisory Board, thereby stealing/denying any opportunity to the detune to make a representation against the same, further, no information regarding any stage of proceedings was ever given to the detenu. This very act of Respondents in unusually accelerating the entire exercise of detention and approval cannot be said to be without conscious intention of undermining the constitutional safeguard of Article 22(5) as well as statutory requirement under section 13 of the Public Safety Act. This subverting of Constitutional requirement may not be condoned by this Hon'ble Court. On this ground alone the impugned orders mush be quashed by this Hon'ble Court. iv. For, both the section 15 and 16 of the PSA define the boundaries and regulate the proceedings of the Advisory Board. A perusal of the same would show that the proceeding before the Advisory Board cannot be opaque i.e. the detenu cannot be kept oblivious to the entire proceeding before the board. iv. For, both the section 15 and 16 of the PSA define the boundaries and regulate the proceedings of the Advisory Board. A perusal of the same would show that the proceeding before the Advisory Board cannot be opaque i.e. the detenu cannot be kept oblivious to the entire proceeding before the board. The Advisory Board must in the view of the Constitutional safeguard of Article 22(5) hear the Detenu more so, in a case like the present one where the detenu has not been allowed to make a representation against his detention to the Government. Since, the detenu was not heard at all in any manner therefore, the entire proceedings under the PSA have been vitiated for violation of both constitutional as well as Statutory requirements, hence the impugned orders are liable to be quashed and the detenu may be directed to be release from illegal detention forthwith. v. For, the detention seems to be based on grounds that are completely vague if not absurd. A perusal of the grounds would show that there is at best of one old FIR lodged against the detenu, which is itself fabricated and actuated by ulterior motives. As stated above, the detenu has sufficient proof both audio and video in his possession to show that for the better part of the past 1-2 years or so, time and again had been Informing the Forest Department Officials regarding illegal felling in and around zone 'A' Neeru Range and had been pressing them for action. The registering of fresh FIR in 2023, it seems is only a blowback the detenu has faced for his actions of highlighting the illegal cutting and felling of trees. Nonetheless, the ground as contained in the impugned order by no stretch of imagination or even by liberal interpretation can be said to contain any convincing grounds justifying the preventive detention of the detenu. vi. For, a comparison of the grounds contained in the impugned order no. 01/DM/DODA/PSA/2023 dated 03.05.2023 of the ‘Detaining Authority’ i.e. Respondent no. 2 is a lose paraphrasing of the dossier submitted by the Divisional Forest Officer, Bhaderwah and do not in the least reflect any semblance of application of any mind or any justification of having reached any subjective satisfaction' . 01/DM/DODA/PSA/2023 dated 03.05.2023 of the ‘Detaining Authority’ i.e. Respondent no. 2 is a lose paraphrasing of the dossier submitted by the Divisional Forest Officer, Bhaderwah and do not in the least reflect any semblance of application of any mind or any justification of having reached any subjective satisfaction' . In fact, it seems that, the entire 'dossier' supplied to the Respondent no.2 has been created in urgency, post the period when the detenu had been constantly pressuring the Concerned forest officials of the 'Neeru Range' to act against the illegal felling of the trees and had been sending them videos of the same, hence, the same could not have inspired any credibility for detention under PSA. A perusal of the 'dossier' would show that the same is based only on presumptions, surmises and hearsay and cannot be relied upon to denying the detenu his Constitutionally guaranteed rights and freedom. On this ground as well the impugned orders are liable to be quashed. vii. For, the actions of the respondents have resulted in violating the precious right of detenu guaranteed under Art. 22(5) of the Constitution thus, rendering his detention illegal and bad in law. viii. For, the confirmation of detention for the maximum permissible period of One Year by the Respondents is excessive and totally unjustified. No reasons justifying the maximum period has been provided nor any record of proceeding before the Advisory Board has been provided to the detenu. 3. Reply to the petition has been filed by the respondent 2 wherein it is being stated that in pursuance to the dossier and other connected documents submitted by Divisional Forest Officer, Forest Division Bhaderwah dated 19.04.2023, the impugned order came to be passed in terms of Section 8 Sub Section (1) (clause a-1) of the Act of 1978. It is further stated that the petitioner came to be informed vide notice dated 03.05.2023 about the order of detention as also the grounds of detention and as well as came to be apprised that he can be heard in person by the Advisory Board, if he wishes to. It is further stated that detention order came to be approved by the Government vide order dated 04.05.2023. It is being further stated that the detention of the petitioner is not punishment but only to prevent the petitioner from acting against the larger interest of Pubic and Society. It is further stated that detention order came to be approved by the Government vide order dated 04.05.2023. It is being further stated that the detention of the petitioner is not punishment but only to prevent the petitioner from acting against the larger interest of Pubic and Society. It is next stated that the petitioner had indulged in illegal timber smuggling trade on regular basis besides cutting green trees and came to be found involved in case FIR No. 46/2023 for commission of offences under Section 26 of the Indian Forest Act read with 379, 447-A, 34, 434 & 353 IPC besides being involved in various forest related offences. It is being further stated that the petitioner came to be served with the grounds of detention and order of detention consisting of 42 leaves received by the petitioner against a proper receipt through Executing Officer–Sub Inspector (PSI) Bhupinder Sharma and that the contents of warrant and grounds of detention has been read over and explained to the petitioner in Urdu which he fully understood. Heard learned counsel for the parties and perused the record. 4. Before proceeding to advert to the grounds urged in the petition, it would be appropriate to refer the following judgments of the Apex Court pertaining to the preventive detentions: In case tiled as “Rekha Vs State of Tamil Nadu” reported in 2011 (5) SCC 244 it has been held at paras 29, 33 and 35 as follows:- “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, historic struggles. 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, 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 Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal. 30. No doubt it has been held in the Constitution Bench decision in Haradhan Saha 's case (supra) that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Articles 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him opportunity of placing his defence through his lawyer. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (Indian Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to. 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, (supra) - para 63). 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.” In case titled as “Vijay Narian Singh Vs State of Bihar and Ors.” reported in 1984 (3) SC 14 the Apex Court has been observed and noticed as follows: “It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that tee liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” In the latest judgment passed the Hon’ble Apex Court in case titled as “The State of Manipur & Ors. Vs Buyamayum Abdul Hanan” reported in 2022 SSC Online SC 1445 at para 24 following has been held: “24. In other words, the right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled him in making effective representation in assailing the order of detention in view of the protection provided under Article 22(5) of the Constitution, the same renders the order of detention illegal and we find no error being committed by the High Court in setting aside the order of preventive detention under the impugned judgment.” What emerges from the aforesaid judgments of the Apex Court is that the law enjoins upon the Detaining Authority to be alive to all the facts and circumstances of the case and to draw subjective satisfaction that the detention of the detenue has become imperative as the criminal case he is facing have been found not able to deal with the detenue. Therefore, the Detaining Authority is required to record compelling reasons necessitating such detention of the detenue. 5. Therefore, the Detaining Authority is required to record compelling reasons necessitating such detention of the detenue. 5. Perusal of the record produced by the counsel for the respondents inasmuch as response filed by the respondents to the petition manifestly reveal that the Detaining Authority has failed to record compelling reasons necessitating the detention of the detenue, in that, law is equally settled that recourse to preventive detention cannot be taken to as a substitute of criminal activities of a person. 6. Having regard to the aforesaid facts and circumstances inasmuch as the position of law referred and noticed in the preceding paras, the impugned order is not legally sustainable. 7. Viewed thus, the petition succeeds and as a consequence whereof, the impugned detention order No. Home/PB-V/1183 of 2023 dated 31.05.2023 is quashed with the direction to the respondents including Jail Authority to release the detenue from the detention forthwith unless required in any other case. 8. The record produced by the counsel for the respondents returned back in open Court.