1. Order of detention bearing No.38/DMB/PSA/09 dated 11.12.2009, pursuant to which detenue has been detained, is contended to be arbitrary exercise of power and violative of rights guaranteed.

2. Detenue in connection with case FIR No.266/2009 is shown to have been arrested on 27.11.2009 for commission of offence punishable under Section 379 RPC, then pursuant to order impugned has been detained on 11.12.2009.

3. In the grounds of detention it is nowhere mentioned as to whether the detenue had applied for bail or there was any likelihood of want of bail. Simply it is stated that normal laws are not sufficient to deter the detenue from committing anti-national activities. In the year 2009 he has been arrested in connection with the case of theft of a vehicle. How theft of a vehicle can be termed to be prejudicial to the security of the State is not forthcoming. No doubt earlier in the year 2001 and 2006, the cases had been registered against the petitioner vis-a-vis recovery of arms and ammunition but no such allegation or imputation is alleged against the detenue in the grounds of detention from the year 2006 till the date of impugned order issued on 11.12.2009. A solitary instance of theft of vehicle in November, 2009 has been made base for passing the order of detention, which by itself shows as to how the detaining authority has failed to apply its mind.

4. It is nowhere mention that the material forming base for the grounds of detention has been furnished to the detenue which is a serious violation of a right guaranteed under Article 22(5) of the Constitution of India.

5. The object of passing the preventive detention is to deter a person from acting in any manner prejudicial to the security of the State or to prevent him from disturbing the public order. Theft of a vehicle can neither be termed to be an activity prejudicial to the security of the State nor can be termed to be an activity aimed at disturbing the public order. The other wholesale allegations are also unsupported by any material, more particularly with effect from 2007 till December, 2009, no instance has been mentioned or supported by placing on record any such document to show that the detenue in any case had acted in a manner prejudicial to the security of the State.

6. The District Magistrate while issuing the order impugned has himself fixed the period of detention as 24 months winch is absolutely impermissible because the period of detention has to be fixed by the Government on confirming the action of the District Magistrate. It also shows the non application of mind on the part of District Magistrate.

7. Resort to preventive laws may be unavoidable but while exercising such power, the safeguards available to the detenue have to be respected. The detention order can never be punitive in its operation but when such order is passed without am base and is vague and suffers from lack of application of mind, it has an effect of being penal in nature.

8. The order of detention on the face of it is totally arbitrary and unsustainable, so is quashed. Detenue, namely, Jahangir Ahmad Khan S/O Gh. Mohammad Khan R/O Noor Bagh Tehsil & District Baramulla shall be released forthwith provided he is not required in connection with any other case.

Disposed of as above.

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