Point of Law: Detention order quashed - Non-recording of compelling reasons for detaining detenue when he was already in custody - Respondents have also failed to express any such compelling reasons even in their reply affidavit as well - When a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with normal appropriate criminal law; but if he is sought o be detained under any of preventive detention laws as may often be necessary to prevent further commission of such offences, then provisions of Article 22(5) must be complied with.

JUDGEMENT :

1. Through the medium of instant petition quashment of detention order bearing No. 16/DMP/PSA/20 dated 13.07.2020, (hereinafter for short the impugned order) passed against the detenue namely Mohammad Rafiq Mir is being sought by the petitioner as also a writ of mandamus for his release and a compensation of Rs. 10 Lacs for his illegal detention.

2. It is being stated in the petition that the detenue is a law abiding and peace loving citizen and has never involved in any subversive activity prejudicial to the public order or security of the State. The detenue is stated to have been arrested in the month of January 2020, after being summoned to Police Station Khrew, from his place of duty and was implicated falsely in case FIR No. 03/2020 registered at Police Station Khrew and while being in custody therein the said FIR came to be detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail, Srinagar.

3. The impugned order is being challenged on the grounds inter-alia that detenue was already in custody in case FIR No. 03/2020 and the detaining authority despite having the knowledge of the said fact detained the detenue without spelling out any compelling reason thereof in the grounds of detention, more so, when there was no possibility of the release of the detenue from the custody on account of offences of the FIR particularly offences covered under chapter IV and VI of the ULP(A) Act.

4. It is being further urged in the grounds that the detenue had not been provided copies of the relevant material like copy of dossier, copy of FIR, Statements under Section 161, 164-A Cr.PC, referred to in the grounds thus depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional right of the detenue guaranteed under Article 22 (5) of the Constitution of India.

5. It is being next urged in the grounds of challenge that although a representation was submitted against the detention by the detenue through his father before the respondents yet same was not considered rendering the detention order, as such, not sustainable in law.

6. Per contra, respondents in their reply affidavit filed in opposition to the petition resist and controvert the contentions raised and grounds urged by the petitioner and have stated in their reply affidavit that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenue was detained pursuant to impugned order.

7. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenue.

8. It is being next stated that impugned order was executed by one Mohammad Maqbool ASI No.15/AWT Police Station Khrew and that the detenue was handed over to the Superintendent Central Jail, Srinagar, for lodgement and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenue in the language which he fully understood and in lieu thereof the detenue subscribed his signatures on the execution report/order.

9. It is being further stated that the detenue was well informed about the right of making his representation and that despite having received the entire material the detenue did not chose to make any representation against his detention.

10. It is being next stated that the advisory board after considering the material placed before it, in terms of Section 16 of the Act held that there is sufficient cause for detention of the detenue, whereupon receipt of the said opinion of the advisory board the Government confirmed order of detention against the detenue. Respondents in the process are stated to have complied with all statutory, constitutional provisions and followed all requisite formalities without violating any of them.

11. Heard learned counsel for the parties and considered the matter.

12. While dealing with the f