Point of Law : When any person is detained in pursuance of an order made under any law providing for preventive detention, authority making order shall, as soon as may be, communicate to such person grounds on which order has been made and shall afford him earliest opportunity of making a representation against order.

JUDGMENT :

Sharma, J.

1. The present Appeal has been preferred against the judgment dated 03.12.2021 passed in WP(Crl) No. 29/2021 whereby the Habeas Corpus Petition of the appellant herein has been dismissed.

2. The appellant was detained by the District Magistrate, Jammu vide Order No. 05 of 2021 dated 05.05.2021 under Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

3. This order of detention was assailed by the appellant in a petition in the nature of Habeas Corpus amongst other on the grounds that:

(i) The appellant was already in custody in FIR No. 91 of 2021, at the time of passing of the order of detention and, therefore, it was necessary for the detaining authority to show awareness to this fact and to indicate compelling circumstances for passing the impugned order of detention.

(ii) The detaining authority has not considered the representation of the detenu seeking revocation of his detention.

(iii) The detenu was not provided the relevant material relied upon by the detaining authority to derive its subjective satisfaction with regard to the necessity of keeping the detenu in preventive detention.

(iv) The grounds of detention are verbatim copy of the dossier provided by the police authorities, as such, the detaining authority has not applied its mind to arrive at subjective satisfaction while passing the order of detention.

(v) The order of detention suffers from non-application of mind and does not disclose any compelling circumstances requiring preventive detention of the appellant

4. The respondents justified the detention of the detenu on the basis of his involvement in many criminal cases and on the ground of his activities as narrated in the dossier of the Senior Superintendent of Police, Jammu. The respondents submitted that the detenu is a hardcore criminal who has created a terror in the area and his activities have caused harm to the peace and tranquility of the area resulting in constant threat to the maintenance of public order. Since the substantive law of the land was not sufficient in deterring the appellant from indulging into criminal acts as he was terrorizing people and community, therefore, the Detaining Authority was compelled by the activities of the appellant to pass the order of detention.

5. The writ court held that there was no legal procedural infirmity and while passing the order of detention it was also held that detenu was supplied grounds of detention was sufficient to arrive at the satisfaction that it was necessary to put the detenu in preventive detention to restrain him from acting in any manner prejudicial to the maintenance of public order. The grounds of detention are definite, proximate and free from any ambiguity and all the constitutional safeguards, regarding furnishing of ground of detention, providing him all requisite material and informing him of his right of representation had been followed. The detenu had been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order, in exercise of its powers under Section 8 of the Jammu and Kashmir Public Safety Act, 1978.

6. The appellant is aggrieved of the order of the writ court on the ground that the writ Court has erred in upholding the detention of the detenu. It is urged that the Detaining Authority was well aware of the fact that the detenu was already in custody at the time of issuance of order of detention for committing a substantive offence in FIR No. 91/2021, thus, it was necessary for the Detaining Authority to disclose compelling reasons for putting the detenu who was already in custody under preventive detention.

7. Perusal of the detention order and the grounds of detention and record reveals that detaining authority has not shown any awareness to the fact that the detune was in custody and therefore, there is total non-application of the mind by the Detaining