ORDER : 1. This Letters Patent Appeal, has been filed by the appellant/detenu who is aggrieved by the order dated 27.07.2023, passed by the learned Single Judge in WP (Crl) No. 297/2022 whereby, the habeas corpus petition filed by the appellant, challenging the order of detention dated 07.04.2022 passed by the District Magistrate, Budgam (Respondent No. 2), by which the appellant was taken into preventive detention under the provisions of Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as “the act”) was dismissed. FACTS 2. The brief facts of the case are as follows. The detenu is in preventive detention under the provisions of Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as the ‘PSA’) inter-alia that he is a threat to security of the state. The order of detention follows the registration of an FIR against him, being FIR No. 219/2021 of Police Station, Budgam, which include offences under several provisions of the UAPA. Allegations in the FIR reflect that upon receiving information about the activities of the appellant/detenu with anti-national elements, the Rashtriya Rifles, along with the police, raided the village where the appellant was living and during search of his premises, a Chinese pistol and eight rounds (cartridge) were recovered. Besides, there was also reference to certain statements made by co-accused persons in their disclosure memorandum, implicating the appellant as a terrorist sympathizer and as an over ground worker of the terrorist outfit LeT. 3. Inter-alia, ground taken by the appellant in the writ petition challenging the order of detention was the non-application of mind by the detaining authority. To buttress his arguments, learned counsel for the appellant has drawn the attention of this Court to the police dossier of the appellant prepared by the SSP Budgam and sent to the detaining authority, which in its last lines spelt out to necessity to detain the appellant/detenu under the relevant provisions of the PSA. Thereafter, the Ld. Counsel for the appellant has also drawn the attention of this Court to the corresponding paragraph which, according to him, is an identical reproduction of the police dossier pertaining to the appellant which reflects that there was no independent application of mind on the part of the District Magistrate and, therefore, the order is violative of the Articles 14 and 21 of the Constitution. He further says that the order of detention is nothing more than a copy of the police report and that the detaining authority has signed the same without even reading it. 4. The learned counsel for the appellant took us through the order passed by the learned Single Judge which reveals that though the learned Single Judge has taken cognizance of the fact that there was non-application of mind on the part of the detaining authority and that the order of detention was merely a reproduction of the opinion of the SSP Budgam (as was stated in the pleadings), the learned Single Judge did not did not give a finding on the said ground taken in the writ petition by the appellant. 5. Learned counsel for the respondents on the other hand has argued that though the ground of non-application of mind by the detaining authority was taken in the petition and that the same was referred to by the Ld. Single Judge in the order, there is nothing to suggest in the order that oral argument/submission on the point were ever made by either of the parties before the Ld. Single Judge. We reject the said argument put forth by the Ld. Counsel for the Respondents as once a ground is taken in the petition and the same has been referred to by the Court, then an opinion on the same was expected. It is also relevant to mention here that according to the learned counsel for the appellant that the appellant was granted default bail in the FIR case by the Ld. Trial Court on 18.01.2022, which was taken into account by the detaining authority as one of the factors that necessitated the detention of the appellant by the order of detention dated 11.04.2022 but, the order of detention does not spell out the necessity of taking the appellant into custody under the PSA after he was granted default bail in the FIR case. 6. Learned counsel for the Respondents submits that this Court cannot go into the material against the detenu, and the subjective satisfaction of the detaining authority cannot be scrutinized by this Court. He has further submitted that the Court can only see two parameters under the provisions of the PSA, i.e. public order and security of the state and the reason on account of which the detention order is passed. He has further submitted that the Court can only see two parameters under the provisions of the PSA, i.e. public order and security of the state and the reason on account of which the detention order is passed. According to him the “subjective satisfaction” of the detaining authority cannot be supplanted by the subjective satisfaction of the Court. In support of his contention, he has relied on a judgment of this Court by a coordinate bench in Mian Abdul Qayoom vs. U.T. of Jammu and Kashmir, 2020 (4) JKJ 127 , State of Bombay vs. Atma Ram Shridhar Vaidya, AIR 1951 SC 157 (referred to by the Ld. Single Judge), with specific reference to paragraph-5. The third judgment that has been referred to by the Ld. Counsel for the UT is Haradhan Saha vs. State of West Bengal and Others, 1973 (3) SCC 198 (with specific reference to paragraph 32 and 33). The Ld. Counsel for the appellant has referred to the judgment of the Supreme Court in Pooja Batra vs. Union of India, (2009) 5 SCC 296 . We shall also examine elsewhere in this judgment whether the test of reasonableness can be applied to the “subjective satisfaction” of the detaining authority. FINDINGS 7. Heard the Ld. Counsels for the parties and perused the records of the case. As regards judgment of the co-ordinate bench in M.A Qayoom’s case, it is necessary to briefly refer to the facts of that case. The appellant in that case was detained in 2019 under the provisions of the PSA. Out of the four criminal cases which were taken into consideration by the authority, one case was of the year 2018, two cases of 2010 and one of 2020. Apparently, the case of 2020 was registered after the appellant was taken into detention in the year 2019. In paragraph 25 of the judgment, the Ld. Co-ordinate bench has held that most of the grounds of detention were “somewhat clumsy” but thereafter held that the detaining authority has assumed his subjective satisfaction on several grounds, one of which were the criminal cases registered against the Mr. M.A. Qayoom. In paragraph 25 of the judgment, the Ld. Co-ordinate bench has held that most of the grounds of detention were “somewhat clumsy” but thereafter held that the detaining authority has assumed his subjective satisfaction on several grounds, one of which were the criminal cases registered against the Mr. M.A. Qayoom. The State relied upon the judgment of the Supreme Court in Gautam Jain vs. Union of India, (2017) 3 SCC 133 which laid down that the detention of the detenu could be sustained on a solitary ground if the material mentioned therein is supplied to the detenu. Connecting it with the facts of the case, the State submitted in that case, that the grounds of detention also referred to the various FIRs against the detenu and that the copies of the same were supplied to the detenu. This was accepted by the Ld. Co-ordinate bench in paragraph 27 of the judgment where it held that the grounds of detention being severable, the order of detention would sustain on the solitary ground of the various cases having been filed against the detenu which constituted the subjective satisfaction of the detaining authority. 8. In the course of arguments in M.A Qayoom’s case, Mr. Z.A. Shah, Ld. Senior Counsel appearing on behalf of the appellant in that case, had put forth a legal proposition that the ideology of the detenu (which was a consideration in detaining the detenu) must have an ‘outer manifestation’ by way of a ‘practical conduct’ which results in the contravention of some law. Disagreeing with the Ld. Sr. Counsel, the co-ordinate bench was of the opinion that the ideology of a detenu could be considered, without any accompanying action as the purpose of detention was to prevent him from giving effect to his ideology and not to punish him for an illegal act and held in paragraph 40 in the following words, “So is the case with an ideology; one may not have violated any law in the immediate past, but if the detaining authority has suspicion that the person holding such an ideology has the potential to do so, he can take the measures permissible within the law to prevent him from doing so.” 9. The second judgment relied upon by the Ld. Counsel for the UT is a six judge Constitution Bench opinion of the Supreme Court in State of Bombay vs. Atma Ram Shridhar Vaidya. The second judgment relied upon by the Ld. Counsel for the UT is a six judge Constitution Bench opinion of the Supreme Court in State of Bombay vs. Atma Ram Shridhar Vaidya. The Supreme Court was examining the scope of judicial review of detentions under the erstwhile Preventive Detention Act, 1950. The majority view was that where the subjective satisfaction arrived at by the detaining authority was that of a reasonable man (paragraph 5), the scope of interference by the Courts was limited to setting it aside only if the order was malicious. 10. Justice S.R. Das, who gave a separate opinion has dwelt into the mind of the detaining authority and has opined, that subjective satisfaction “will depend upon the training and temperament and the habitual mental approach of the person who is the authority to make the detention order.” The Ld. Judge then examines the case from the point of view of a person who does not derive the requisite satisfaction except on very precise and full information amounting to almost legal proof while another person may be satisfied with ‘meagre information’ which may appear to be vague or even nebulous. Learned judge further observed that if the authority is a person of the first mentioned type, then the grounds on which he will make the order will be more precise and complete in particulars than the grounds on which an order may be made by the authority who was a person of the second type, which may be vague (paragraph 35). This observation of the Ld. Judge is relevant for all times as he has dealt with the approach that may be adopted by the detaining authority based on human nature. 11. In Hardhan Saha’s judgment, the Supreme Court was examining the constitutionality of the provisions of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as “MISA”). The five judge Constitution bench of the Supreme Court held that preventive detention does not have to take into reckoning whether a parallel proceeding of a criminal trial was also in progress against the detenu. It held that Article 14 was inapplicable as preventive detention and criminal prosecution are different as the purpose of a criminal trial and a proceeding for preventive detention are different as are the authorities. 12. It held that Article 14 was inapplicable as preventive detention and criminal prosecution are different as the purpose of a criminal trial and a proceeding for preventive detention are different as are the authorities. 12. Whether it be the power of the police to arrest or the power of the executive magistrate to detain, both result in the infraction of liberty and to that extent, there is no difference between the two. As regards the power of the police, it would be beneficial to quote from the judgment of a State Supreme Court of the United States of America passed a hundred and nine years ago which, while explaining the concept of reasonableness in the exercise of police power, held “Without it the purpose of civil government could not be attained. It has more to do with the wellbeing of society than any other power. Properly exercised it is a crowning beneficence. Improperly exercised it would make of sovereign will a destructive despot superseding and rendering innocuous some of the most cherished principles of constitutional freedom.” [Mehlos V. City of Milwaukee - Supreme Court of Wisconsin (23.03.1915) - Extracted from the article “The Doctrine of Reasonableness in the Police Power” by Samuel M. Soref, published in “The Marquette Law Review” Volume XV, December 1930]. These words ring true even today. 13. As regards the judgment of Pooja Batra referred to by the Ld. Counsel for the appellant, the Supreme Court held in paragraph 30 that the court does not sit as an appellate court over the order of detention passed by the authority. However, as the order results in the infringement of the fundamental right of the citizen, no absolute immunity of scrutiny of the order can be claimed by the authority. The court is expected to see if there is due application of mind on the part of the detaining authority and whether all the material germane to the order of detention has been considered. ARTICLE 22 - THE FOUNTAINHEAD AND ENGINE THAT POWERS PREVENTIVE DETENTION LAWS 14. Article 22 of the Constitution can be summarised as follows: (1) A person arrested or detained in custody must be informed of as soon as may be, the ground of arrest and his right to a lawyer [Art. 22(1)]. (2) To be produced before Magistrate within twenty-four hours, excluding journey time [Art. 22(2)]. Article 22 of the Constitution can be summarised as follows: (1) A person arrested or detained in custody must be informed of as soon as may be, the ground of arrest and his right to a lawyer [Art. 22(1)]. (2) To be produced before Magistrate within twenty-four hours, excluding journey time [Art. 22(2)]. (3) Protection of 22(1) and (2) not available to an enemy alien [Art. 22(3)(a)]. Protection of 22(1) and (2) not available to one under preventive detention [Art. 22(3)(b)]. (4) Preventive detention beyond three months only if Advisory Board deems fit [Art. 22(4)(a)]. (5) Art. 22(4)(a) shall not authorise detention beyond the maximum period prescribed by a law made by Parliament under sub-clause (b) or (c) of clause 7 [Proviso to Art. 22(4)(a)]. (6) Detention only under law made by Parliament under Art. 22(7) (a) and (b) [Art. 22 (4) (b)]. (7) Detenu to be communicated grounds of detention to enable representation against detention order [Art. 22 (5)]. (8) Detaining authority need not disclose facts against public interest [Art. 22 (6)]. (9) Parliament by law may prescribe detention beyond three months without the order of the Advisory Board [Art. 22 (7)(a)]. (10) Parliament by law may prescribe the maximum period of detention [Art. 22 (7) (b)] and (11) Parliament by law may prescribe the procedure to be followed by an Advisory Board in enquiry under Art. 22 (4) (a) [Art. 22 (7) (c)]. 15. Article 22 (7) (b) gives unfettered power to the Parliament to fix the maximum period of detention of a citizen, without the constitution itself providing a maximum limit beyond which the Parliament cannot legislate to hold a person under preventive detention. In other words, a handful of elected representatives in a country of over 1.4 billion people, are given the unbridled power of legislating a preventive detention law, in which the maximum period of detention may be what they think is appropriate, five years, ten years or whatever they may deem fit as Art. 22 (7) (b) does not restrict the parliament, that under no case, can the maximum period of prevention detention exceed a specified period of time. The omission to have a maximum limit to the period of detention in Art. (22) (7) (b) and leaving it to the discretion of the elected representatives, is giving them draconian powers which the citizens can only hope, would be exercised with caution and responsibility. The omission to have a maximum limit to the period of detention in Art. (22) (7) (b) and leaving it to the discretion of the elected representatives, is giving them draconian powers which the citizens can only hope, would be exercised with caution and responsibility. 16. The genesis of preventive detention laws appears to be from the Defence of India Act, 1915. It was promulgated after the outbreak of World War I by the erstwhile colonial occupiers of India in order to give themselves the power of detention without trial and appeal of such revolutionaries who questioned the occupation and subjugation of India by the British. The British, by the Rowlatt Act of 1919, sought to extended indefinitely, the powers of preventive detention under the Defence of India Act, 1915, even after the armistice was signed between the warring nations in 1918 bringing World War I to an end. It was a protest against the said Act that led to the massacre at Jallianwala Bagh on 13.04.1919. Post-independence, the framers of the Constitution in their wisdom retained the power to promulgate laws of preventive detention by Article 22(3) of the Constitution. 17. The Supreme Court while examining the vires of the Preventive Detention Act, 1950 in A.K. Gopalan vs. State of Madras, AIR 1950 SC 27 held that Article 22 is supplemental to Article 21 in the following words “The learned Attorney-General contended that the subject of preventive detention does not fall under Article 21 at all and is covered wholly by Article 22. According to him, Article 22 is a complete code. I am unable to accept that contention. It is obvious that in respect of arrest and detention Article 22(1) and (2) provide safeguards. These safeguards are excluded in the case of preventive detention by Article 22(3), but safeguards in connection with such detention are provided by clauses (4) to (7) of the same article. It is therefore clear that Article 21 has to be read as supplemented by Article 22. Reading in that way the proper mode of construction will be that to the extent the procedure is prescribed by Article 22 the same is to be observed; otherwise Article 21 will apply.” [A.K. Gopalan vs. State of Madras, AIR 1050 SC 27 (Paragraph 26) Opinion of Hon'ble Mr. Justice H.L. Kania, then CJI]. 18. Reading in that way the proper mode of construction will be that to the extent the procedure is prescribed by Article 22 the same is to be observed; otherwise Article 21 will apply.” [A.K. Gopalan vs. State of Madras, AIR 1050 SC 27 (Paragraph 26) Opinion of Hon'ble Mr. Justice H.L. Kania, then CJI]. 18. Another learned Judge had expressed his surprise in the manner in which the provision relating to Preventive Detention found its way into the Indian Constitution, a provision which was missing from the laws and Constitutions of US and Britain, except in times of war. The Ld. Judge observed “Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world. It was stated at the Bar that no such law was in force in the United States of America. In England for the first time during the first world war certain regulations framed under the Defence of the Realm Act provided for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities. The same thing happened during the second world war. Similar regulations were introduced during the period of the war in India under the Defence of India Act. The Government of India Act, 1935, conferred authority on the Central and Provincial Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country. Curiously enough, this subject has found place in the Constitution in the chapter on Fundamental Rights. Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule mention the scope of legislative power of Parliament in respect of this topic. The jurisdiction, however, to enact these laws is subject to the provisions of Part III of the Constitution.” [Paragraph 149 - Opinion of M.C. Mahajan J.] 19. Another Ld. Judge, in the same judgment, has disapprovingly observed the manner in which the provision of Preventive Detention made its way into our Constitution and opined “Detention in such form is unknown in America. Another Ld. Judge, in the same judgment, has disapprovingly observed the manner in which the provision of Preventive Detention made its way into our Constitution and opined “Detention in such form is unknown in America. It was resorted to in England only during war time but no country in the world that I am aware of has made this an integral part of their Constitution as has been done in India. This is undoubtedly unfortunate, but it is not our business to speculate on questions of policy or to attempt to explore the reasons which led the representatives of our people to make such a drastic provision in the Constitution itself, which cannot but be regarded as a most unwholesome encroachment upon the liberties of the people.” [Paragraph 188 - Opinion of B.C. Mukherji J.] 20. The above view was reiterated in Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244 (Paragraph 13) where the Supreme Court held “In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial.......Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.” Thus, a conjoint reading of the opinions of the Ld. Judges in A.K. Gopalan’s case and Rekha’s case lead to the inference that protecting the life and liberty of the individual as enshrined in Article 21 is the main provision and Article 22(3) which provides for its curtailment by way of Preventive Detention, is a supplemental provision and therefore of subordinate importance to Article 21. 21. Recently, the subject was scrutinised yet again by the Supreme Court in Ameena Begum vs. State of Telangana, (2023) 9 SCC 587 . While the judgment held as per incuriam, the observations in paragraph 29 and 30 of the judgment passed by the Supreme Court itself Rekha Vs. 21. Recently, the subject was scrutinised yet again by the Supreme Court in Ameena Begum vs. State of Telangana, (2023) 9 SCC 587 . While the judgment held as per incuriam, the observations in paragraph 29 and 30 of the judgment passed by the Supreme Court itself Rekha Vs. State of T.N supra that the laws of preventive detention were inapplicable where the ordinary law of the land was capable of dealing with the situation, on the ground that the same conflicted with the opinion of a larger bench of the Supreme Court in Hardhan Saha vs. State of West Bengal (supra), which held that the scope of the ordinary law and arrest for a criminal offence was different from an order of preventive detention, as the former was to try the accused for an offence already committed by him while an order of preventive detention is passed on a reasonable apprehension that the detenu would commit a breach of public order if not taken into preventive detention. 22. Can an order of detention be tested on the anvil of reasonableness? Would the absence of reasonableness render an order of detention, arbitrary? An order of detention is an exercise of executive discretion resulting in the loss of liberty and every act of executive discretion must pass the test of reasonableness if challenged under Article 226. Where the court arrives at the finding that the order of detention is not supported by the material placed before the detaining authority, there would be non-application of mind rendering the order of detention violative of Article 14, and thus arbitrary. The result of an arbitrary order in cases of preventive detention, also results in the violation of Article 21. Where a constitution court quashes administrative orders on the grounds of arbitrariness in service matters, it cannot be held that the same constitution court has limited powers while examining the validity of a detention order which violates the right under Article 21 of the constitution, the queen of all fundamental rights. The expansive stretch of the arms of the High Court under Article 226 is limitless where the primary guiding light is ex debito justitiae. However, greater the powers, greater must be the circumspection with which it is exercised. The expansive stretch of the arms of the High Court under Article 226 is limitless where the primary guiding light is ex debito justitiae. However, greater the powers, greater must be the circumspection with which it is exercised. The court must not act as a knight errant, and neither must it suffer from judicial paralysis and between the two extremes, its order must be justifiable in the specific facts and circumstances of the case before it. A coordinate bench of this court has already considered aspects related to the reasonableness of an arrest under the UAPA in the case of Peerzada, Fahad Shah vs. Union Territory of Jammu and Kashmir and Another, 2023 SCC Online J&K 954 and as already stated by us hereinabove, preventive detention and arrest in a criminal case are same to the extent that both entail the curtailment of liberty. In this regard, the observation of the Supreme Court in Rekha’s case is relevant, where it held “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.” [Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244 - Paragraph 21] 23. This aspect of reasonableness of the order of detention has been dealt by the Supreme Court in Ameena Begum’s case supra where it held “It requires no serious debate that preventive detention, conceived as an extraordinary measure by the Framers of our Constitution, has been rendered ordinary with its reckless invocation over the years as if it were available for use even in the ordinary course of proceedings. To unchain the shackles of preventive detention, it is important that the safeguards enshrined in our Constitution, particularly under the “golden triangle” formed by Articles 14, 19 and 21, are diligently enforced.” [Ameena Begum vs. State of Telangana, (2023) 9 SCC 587 - Paragraph 66]. Thereafter, the Supreme Court in the judgment held at paragraph 73 that “Discretion, it has been held by this Court in Bangalore Medical Trust vs. B.S. Muddappa, is an effective tool in administration providing an option to the authority concerned to adopt one or the other alternative. Thereafter, the Supreme Court in the judgment held at paragraph 73 that “Discretion, it has been held by this Court in Bangalore Medical Trust vs. B.S. Muddappa, is an effective tool in administration providing an option to the authority concerned to adopt one or the other alternative. When a statute provides guidance, or rule or regulation is framed, for exercise of discretion, then the action should be in accordance with it. Where, however, statutes are silent and only power is conferred to act in one or the other manner, the authority cannot act whimsically or arbitrarily; it should be guided by reasonableness and fairness. A legislature does not intend abuse of the law or its unfair use.” Thus, the winds of change have ensured a departure from the past and the law as it exists today, travels beyond mere procedural safeguards with limited scrutiny. After Ameena Begum’s case, a detention order can be examined on the anvil of “reasonableness and fairness.” The Constitution court is not the bench clerk of the executive nor its hatchet man to timidly approve a detention order only because the procedure established by law has been adhered to. It would also be required to examine if the detention order passes the test of reasonableness and fairness. 24. Every law passes through the prism of the Constitution though, its refracted colours maybe of different hues. However, the law of preventive detention cannot be analysed de hors criminal law. The preventive detention of a person has constitutional implications and has to be seen in the backdrop of Article 22. However, excluding the law of crimes by holding that the detention of a person under the PSA or other such law is to prevent him from committing a substantive offence and thus different from an arrest of a person who is an undertrial for an alleged offence already committed by him, would be trivialising personal liberty. Whether it be an arrest in a criminal case or preventive detention, both result in the impairment of liberty, which is prohibited under Article 21, if not legally justifiable. The power to detain, like the power to arrest must be exercised as the last option rather than the first. The authority so vested with the power to detain, or arrest must be satisfied, for discernible and justifiable reasons, that not doing so would result in a greater evil which is irreversible. The power to detain, like the power to arrest must be exercised as the last option rather than the first. The authority so vested with the power to detain, or arrest must be satisfied, for discernible and justifiable reasons, that not doing so would result in a greater evil which is irreversible. Therefore, to say that the absence of proximate actions of an individual to be detained is of limited value where the security of the state is concerned and that, his actions, howsoever remote and stale or his ideology (a purely mental construct, concealed inside the human mind and totally inscrutable unless manifested through an act) which, to the subjective satisfaction of the detaining authority, is sufficient to place the person under detention, is undesirable. 25. Such a view falls foul on two grounds. The first and foremost precept of criminal law is that no man is guilty of a crime unless he intended to cause the effect of his act as borne in the maxim “actus reus non facit reum nisi men sit rea.” The second precept, concerns itself with the proximity of cause which fixes the degree of liability on the individual for his act as a Principal in the First Degree (where actus reus and mens rea are directly attributable to the accused as the principal offender), as a Principal in the Second Degree (where the accused is at the scene of crime, not being the principal offender, but a collaborator), as a Principal in the Third Degree (where the offender is an instigator/conspirator before the fact) and lastly as a Principal in the Fourth Degree (revealing involvement of the offender after the fact). The more remote an offender is in the chain of causation, the law, while still holding him liable for his participation, may burden him with lesser punishment for a lesser offence. This is based on the principle that the law is more concerned with the proximate cause, rather than remote cause as enshrined in the maxim “causa proxima non remota jura spectator.” 26. Therefore, even for infringing the liberty of a person under the preventive detention laws, it is necessary for the process to consider the proximate cause/actions of the person sought to be detained, to arrive at the subjective satisfaction that his detention is necessary for the security of the state to prevent the speculated larger evil. Therefore, even for infringing the liberty of a person under the preventive detention laws, it is necessary for the process to consider the proximate cause/actions of the person sought to be detained, to arrive at the subjective satisfaction that his detention is necessary for the security of the state to prevent the speculated larger evil. To say that a man’s liberty maybe put to sword because of his anti-state ideology alone, which is nothing more than a thought, would make such a detenu a prisoner of conscience. It is necessary that the person so sought to be detained has transcended his ideology by acting in a manner which raises a reasonable apprehension in the mind of the detaining authority that the detenu’s act is the first step in the chain of causation, which, though not an offence yet, would in all probability than not, result in one affecting public order or the security of the state. To that limited extent, we are in respectful disagreement with the observation of the Ld. co-ordinate bench in M.A. Qayoom’s case wherein paragraph 40 (reproduced in paragraph 8 supra), the Ld. co-ordinate bench has held in effect, that the ideology of the prospective detenu would be sufficient to constitute subjective satisfaction of the detaining authority. 27. The subjective satisfaction is onerous, and it must so be if the right under article 21 is to remain meaningful. The threat to national security by an individual sought to be detained must be real and proximate not speculative and remote, else the use of preventive detention can result in the wanton infringement of the right to life and right to freedom of speech and expression, by hiding behind the chimera of national security. The propensity of the laws of detention to be oppressive cannot be underscored enough. The words of the French writer, activist and thinker Voltaire are reminiscent when he says “Beware of the words ‘internal security’ for they are the eternal cry of the oppressor.” For long it has been said that the security of the state and society must be given leverage over the liberty of an individual, but what must not be lost sight of is that a society is an agglomeration of individuals. Every individual in that agglomeration is equally a prospective victim of a whimsical and unsubstantiated ‘subjective satisfaction’. Every individual in that agglomeration is equally a prospective victim of a whimsical and unsubstantiated ‘subjective satisfaction’. Constitutional safeguards, with specific reference to Part III of the Constitution, would only be rhetoric, if Constitution Courts abdicate their role as sentinels on the qui vive, while examining the reasonableness and fairness of a detention order. ON MERITS 28. The dossier prepared by the SSP Budgam, pertaining to the appellant, is extremely relevant. In the said dossier it is recorded “in view of the aforementioned facts it can be safely gathered that the subject is a potential threat to the security of the state. Though normal law of the land has been invoked against the subject, however, the same won’t be sufficient to prevent the subject from carrying out antinational activities. Therefore, it is requested that the subject may be detained under the provisions of the PSA for a maximum period.” Thereafter we find that the order of detention is nothing but a facsimile reproduction of the SSP’s report and it reads as “in view of the aforementioned facts it can be safely gathered that you are a potential threat to the security of the state. Though normal law of the land has been invoked against you, however, the same won’t be sufficient to prevent you from carrying out antinational and subversive activities. Therefore, it is requested that you may be detained under the provisions of the PSA for a maximum period.” 29. The two paragraphs which have been reproduced, first by the SSP Budgam and thereafter, the same paragraph has been reproduced in the last paragraph of the grounds of detention by the detaining authority. The only difference that word “subject” used in the dossier prepared by the SSP, is substituted by the word “You” in the grounds of detention. But for that, everything remains identical. The only difference that word “subject” used in the dossier prepared by the SSP, is substituted by the word “You” in the grounds of detention. But for that, everything remains identical. The most striking part of the grounds of detention is that the last three lines of the grounds are “therefore, it is requested that you may be detained under the provisions of PSA for a maximum period.” Thus, it is crystal clear that the detaining authority has affixed his signature on the order of detention along with the grounds of detention without even reading the grounds of detention for, had it done so, the error which has crept in the last paragraph of the grounds of detention would have been seen by the detaining authority and the same would have been corrected. 30. Besides the aforementioned error, another grounds of detention with regard to the appellant that he is a “staunch supporter of terrorists and has been for quiet long acting to further the activities of the terrorist organization to bring secession of J&K state from union of India and to its consequent merger with Pakistan”, is without any specific material that could point a finger in support of the aforementioned allegations, raising a grave suspicion that the allegations against the appellant in all probability than not, is correct. 31. Similarly, the second ground of detention alleged against the appellant that he is an over ground worker of LeT terrorist outfit and is providing shelter, logistic support to the active terrorists of LeT outfit in the area in order to promote the militancy and thus remained in touch with the active militants of LeT outfit, again are not substantiated by any material either in the dossier or in the form of witness statements or the material that may have been seized from the appellant himself which even remotely suggests his involvement as alleged. 32. The third ground is the registration of an FIR which undisputedly is registered against the appellant in the police station Budgam, inter-alia under the provision of UAPA Act, reflects the main allegation against the appellant are for offence under Section 7/25 Arms Act, whereby a Chinese pistol and eight live rounds were alleged to have been recovered from his possession. As already mentioned hereinabove, the appellant has been enlarged on default bail on 18.01.2022, in the case under the Arms Act. As already mentioned hereinabove, the appellant has been enlarged on default bail on 18.01.2022, in the case under the Arms Act. There is no allegation or any material to suggest how the appellant, after his release on default bail, was a threat to state security. 33. This Court is conscious of the fact that the material relied upon by the detaining authority for arriving at subjective satisfaction for detaining a person under the provisions of PSA need not be of such legal value that it stands test of the Evidence Act. The Court can examine the material on the basis of which the order of detention was passed. In this case, the order of detention passed by the Magistrate under the provisions of the PSA is an act of executive discretion. In the absence of material which could justify the detention of an individual under PSA then the order of detention would be arbitrary and thus violative of the Article 14 of the Constitution, besides being violative of the Article 21. 34. As mentioned hereinabove, the legal and factual arguments put forth by the learned counsel for the UT of J&K and considered by us hereinabove, reveal the non-application of mind on the part of the detaining authority who has signed the order of detention and the ground thereto in a casual manner. 35. Under these circumstances, we allow the appeal as we are of the opinion that the order of detention passed by the executive magistrate is arbitrary and we quash the same. The appellant/detenue is directed to be released forthwith, if he is not required in any other case. Accordingly, the LPA stands disposed of along with the connected C.M.