Point of Law: Detention order quashed - No sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu.

JUDGMENT :

ALI MOHAMMAD MAGREY, J.

1. Through the present habeas corpus petition, the detenu through his father, Abdul Reheem Dar, has challenged the detention Order No. 81/DMK/PSA/2020 dated 25.02.2020, for short impugned order, issued by the District Magistrate, Kulgam, whereby the detenu, namely Mubarak Ahmad Dar S/o Abdul Reheem Dar R/o Redwani Bala Kulgam, District Kulgam, has been detained under the provisions of the Jammu and Kashmir Public Safety Act, 1978, for short Act.

2. Briefly stated the case of the petitioner is that the detenu was arrested in the month of January 2019 by Police station Kulgam and implicated in a Case FIR 07/2019 u/s 13(2) 18,19,20,38, 39 ULA (P) Act P/S Kulgam and also under FIR 115/2019 registered at Police Station Qaimoh under section 20 ULA(P) Act. However, the detenu was admitted to bail in the said FIRs by the competent court Special Judge TADA/POTA/NIA at Srinagar, but the detenu was not released and shifted to Kotebalwal Jail Jammu, detained under the aforesaid PS Act., in terms of the impugned order.

3. The challenge to the impugned order is inter-alia made on the grounds that, the allegations against the detenu have no nexus with the detenu and have been fabricated by the police to justify the illegal action of detaining him in preventive custody; the grounds of detention are vague, non-existent and the impugned order, being based on such vague, non-existent grounds, deserves to be quashed; the detenu is innocent and has not committed any offence of whatsoever nature; the detaining authority has not applied its mind while issuing the impugned order; the detenu was already arrested and was in police custody in connection with a case the aforesaid FIRs in which the detenu was admitted to bail but was not released, instead detained under PS Act, the detenu being in the police custody, is uncalled for; the satisfaction recorded by the detaining authority is vis-a-vis the alleged activities of the detenu being prejudicial to the security of the state; the material in the shape of dossier has not been furnished to the detenu nor has he been furnished the copy of FIRs, statements allegedly recorded under section 161, 164-A of the Code of Criminal Procedure, seizure memo, recovery memo as mentioned in the grounds of detention so that the detenue could have made an effective representation against his detention to the Competent Authority.

4. Reply has been filed by the respondents and the claim made by the petitioner has been resisted. It is stated in the reply, inter-alia, that the impugned order is well reasoned and does not suffer from any illegality.

5. Heard learned counsel for the parties and considered the submissions made.

6. Learned counsel for the petitioner submits that it is unwarranted and illegal to detain an individual under the provisions of public safety Act in absence of there being any compelling circumstances warranting such exercise of power. He further submits that the detenu has not been provided the material like copy of FIRs, dossier, statement under section 161, 164-A Cr.P.C. seizure memo, recovery memo. He further submits that there is a complete non-application of mind on the part of Detaining Authority as the grounds of detention are the replica of the grounds prepared by the police against the detenue, therefore, the impugned order is bad in law, therefore, deserves to be quashed.

7. Learned counsel for respondents, while resisting the claim of the detenu-petitioner, submits that the impugned order is quite in consonance with law and the safeguards as were required to be taken in terms of the provisions of the aforesaid Act.

8. The photo copy of detention records produced by the learned AAG were perused. It appears that some of the documents have been provided to the petitioner/detenu. Admittedly the material in the shape of copy of FIRs, statements recorded under section 161, 164A Cr.P.C. Seizure memo, and recovery memo have not been provided to the detenue.

9. The admissio