Detenu Ghulam Nabi Shah Son of Abdul Jabar Shah R/o Sogam, Kupwara through his wife seeks to quash the detention order No. 8.DMK/PSA of 2003 dated 12.9.2002 passed by District Magistrate, Kupwara in exercise of powers under Section 8 of the J&K Public safety Act 1978 (for short" the Act") directing preventive detention of the detenu.

2. The detention order has been challenged on the ground that the detenu being already in the custody of the respondents has been taken in preventive custody without application of mind. The detaining authority has not drawn subjective satisfaction in terms of Sec.8 of the Act and also failed to explain as to why the detenu could not be put to trial.

3. Respondents have filed the counter affidavit controverting the averments of the petition. It is stated therein that the detenu was arrested in FIR NO. 85/2002 of Police Station Sogam for commission of alleged offence. The detention order has been approved in terms of Section 8 of the Act by the Government on 22.9.2003. The detenu has been explained the grounds of detention in Urdu and Kashmiri which he understood. The detention order has also been confirmed by the Government under section 17 of the Act.

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the petitioner has submitted that this Court has settled the proposition of law that a citizen can be detained by the detaining authority on the grounds mentioned in Sec.8 of the Act. The detention of the detenu has been directed on the ground that ordinary law of the land is not enough as a corrective measure. According to the learned counsel form the petitioner this ground does not fall within section 8 of the Act for arriving of subjective satisfaction by the detaining authority. Relying upon the judgment of this Court delivered in Ghulam Nabi Dar v. State of J&K and Ors., reported in 2002 KLJ 637. Learned has submitted that the detention order deserves to be quashed. Dealing with the argument of the learned counsel therein that ordinary law of land is no ground for directing preventive detention, the Court observed as under :

"The compelling reasons spelled out by the detaining authority are, that ordinary criminal law is not enough to prevent detenu from such subversive activities. Similar proposition of law was also in HCP No. 97/2000 titled Bilal Ahmad Bhat v. State and Ors. wherein while dealing with it, satisfaction and the reasons disclosed by the detaining authority while directing the preventive detention of the detenu is that the ordinary law of the land is not sufficient to deter the detenu from his activities. This cannot be accepted either as a ground of detention. While dealing with a similar proposition on facts and law, the Supreme Court in "Surya Prakash Sharma v. State of U.P.reported in 1994 SCC (Cri) 169 in para 5 has held that: "The question as to whether and in what circumstances and order for preventing detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came for consideration before a Constitution Bench in "Rameshwar Shaw v. District Magistrate, Burdan." To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat v. Union of India wherein three Judge Bench, after considering all the earlier relevant directions including Rameshwar Shaw answered the question in the following words:

"The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose must show that:

(i) the detaining authority was aware of the fact that the detenu was already in detention and

(ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before t

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