The main legal point established in the judgment is that a detention order must be based on compelling reasons justifying the detention of a person already in custody, and the detaining authority must provide the necessary material on which the detention order is based.

1. The District Magistrate Srinagar passed the following detention order under Section 8 of Public Safety, Act vide his No. DMS/PSA/18 Dated 24.4.2002:

Whereas, I, Abdul Hamid, IAS District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar that with a view to prevent Shri Mohd. Rafiq Rather S/o Gh. Nabi Rather R/o Laloo Shishgari Bagh District Budgam from acting in any manner prejudicial for the maintenance of the security of the state it is necessary to do so.

Now therefore in exercise of the powers conferred by the Section 8 of the J&K Public Safety Act of 1978, I, District Magistrate Srinagar hereby direct that the said Shri Mohd Rafiq Rather @ Thaba S/o Gh.Nabi R/o Lalo Shishgari Bagh Distrtict Budgam be detained and lodged in Kot-bhalwal Jail Jammu."

2. The detenu was already in the custody as had been arrested on 1st of March 2002 alongwith his associates and arms and ammunition were recovered from him, in connection with which FIR 21/2000 was registered with the police station Sherigari. The detention order aforesaid was approved by the Government on 3rd of May 2002 and detenu was taken into preventive custody on 29th of April 2002. The detention order and the detention of the detenu is the subject-matter of challenge in this Habeas Corpus petition. LC for the petitioner Mr. Shaheen has challenged the detention order on various grounds which are being dealt with here under.

3. LC for the petitioner firstly contends that the detenu was already in the custody of the police under FIR 21/2002 for commission of offences under Section 3/4 and Section 20 of POTA . Going with the nature of the offences with which the detenu stood charged there was no likelihood of his being released on bail. Therefore, the detaining authority did not possess jurisdiction to pass the order for the preventive detention of the detenu. The detaining authority was bound to take into consideration the fact of the detention of the detenu before passing the detention order but according to him the detention has been passed in a most mechanical manner without examining the question, as to whether there was any likelihood of release of the detenu on bail. The detention order therefore, is illegal and cannot be sustained under law. On the other hand the contention of LC for the respondent/State is that merely because the detenu happened to be in the custody of the police. The detaining authority was not debarred under law to pass a detention order under Section 8 of the PSA. The fact of detenu being in custody of the police was very well taken into consideration and thereafter being satisfied that detenu in the event of his release on bail was likely to engage in the activities prejudicial to the security of the state, the detention order was passed. In AIR 1995 SCW 1841 it has been held:

The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody, has been engaging the attention of this court since it first came up for consideration before a Constitution bench in Rameshwar Shah v. District Magistrate, Budgam, (1964) 4 SCR 921. To aschew proximity we refrain from detaining all those cases except that of Dharamandra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 where in a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (Supra) answered the question in the following words:

The decision 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 it is necessary that the grounds of detention must show that (i) that the detaining authority was aware of the fact that the detenu is 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 contest of making an order for