1. By the instant petition, petitioner has sought quashment of the order of detention bearing No.15/DMK/PSA/2018 dated 12.09.2018, passed by District Magistrate, Kulgam-respondent No.2 herein, by invoking powers under clause (a) of Section 8 of the J&K Public Safety Act. In terms of said order, the person of Assadullah Sheikh (hereinafter referred to as the detenue), has been taken into preventive detention.

2. The detention order has been challenged, mainly, on the grounds that the detaining authority has failed to apply its mind to the fact whether the preventive detention of the detenue was imperative notwithstanding the fact that he was already in custody. To this, it has been added that the respondent No.2 has passed the order of detention on the dictates of the sponsoring agency i.e. the officer who has prepared the police dossier and no attempt has been made by respondent No.2 to scan and evaluate it before passing the order of detention.

3. Counter has filed by the respondents wherein it is stated that the grounds of detention have been furnished to the detenue. The detaining authority has complied with the requirements of law. The detenue has failed to avail the remedy prescribed under the Act. He has not filed the representation against the orders of detention. The detenue is involved in number of criminal cases. Order of detention has been passed on justifiable grounds.

4. Heard learned counsel for the parties and also perused the records.

5. The main plank of argument of the learned counsel for the petitioner is that the since the detenue was in custody of the police authorities besides for others, for substantive offence, therefore, there was no need to direct his preventive detention. The arrest of the detenue in the said criminal cases at the time of passing of the orders of detention has not been disputed.

6. Perusal of the material before me reveals that has been shown involved in FIR No.15/2018 registered at Police Station Devsar for commission of offences under Section 147, 148, 149, 336, 341, 427 and FIR No.36/2018 P/S Devsar under Section 148, 149, 341, 336, 427 Ranbir Penal code.

7. The arrest of the detention in connection with aforesaid criminal cases, at the time of passing of impugned order of detention, has not been disputed by the respondents in the counter affidavit. Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically “No”, taking into consideration the law laid down by the Hon’ble Apex Court in “Sama Aruna v. State of Telangana and Anr” (AIR 2017 SC 2662). Para 24 of the said judgment is apposite to be quoted herein below:—

“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not o