Point of law : A person involved in a criminal case can be detained under the provisions of preventive detention laws provided there are compelling circumstances for doing so otherwise the order of detention becomes unsustainable.

JUDGMENT :

1. By the medium of this petition, veracity and validity of the order of detention bearing No.DMB/PSA/05 of2020 dated 14.02.2020, issued by District Magistrate, Budgam (for brevity “Detaining Authority”), has been assailed. In terms of the impugned order, Shri Gulzar Ahmad Bhat @ Phalwan son of Sonaullah Bhat resident of Warpora Budgam, has been placed under preventive detention and lodged in Kotbhalwal Jail, Jammu.

2. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person. Petitioner has gone on to contend that he has not been informed as to before which authority he had to make a representation.

3. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

4. I have heard learned counsel for parties and I have also gone through detention record.

5. Learned counsel for the petitioner highlighted various grounds while seeking quashment of impugned order but the main grounds that have been argued during the course of hearing is that the detenue was already in custody in connection with case FIR No.61/2019 for offence under Section 10, 11, 13 ULAP Act registered with Police Station, Budgam, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive detention laws and that there has been non-application of mind on the part of the Detaining Authority as the grounds of detention are more or less a Xerox copy of the dossier.

6. It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691, wherein the Court has observed as under:

“5.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 had been engaging the attention of this court since it state first came up for consideration before a Constitution Bench in Rameshwar Shaw vs District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand Chelawat v. Union of India wherein a three judge Bench after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words :

“The decisions referred to above lead to the conclusion that an order for detection can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detent