JUDGMENT :

Tashi Rabstan, J.-District Magistrate, Anantnag, has, vide detention Order bearing No. 32/DMA/PSA/DET/2021 dated 13.08.2021 placed Tanveer Ahmad Malik S/o Ab. Gani Malik R/o Wani Mohalla Dooru District Anantnag (detenu) under preventive detention and directed his lodgement in Central Jail, Kotbhalwal, Jammu. It is this order, petitioner has challenged in this petition and seeks quashment thereof on grounds averred therein.

2. Counter affidavit has been filed in opposition to the petition and also detention record has been produced.

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

4. Learned counsel for the petitioner has, to augment the case set up by the petitioner in the petition on hand contended that the order of detention impugned herein is illegal, unconstitutional and bad in the eyes of law which has been passed in breach of mandate of law. It is also averred that the detaining authority has not attributed any specific allegation against the detenue. Further, the detenue was not supplied the entire material so as to file an effective representation before the Government or the detaining authority. The petitioner further averred that the detention order has neither approved in time nor reference made to the Advisory Board within the stipulated period and even the advisory board has not given its opinion within the stipulated period as provided under the statute. It is also averred that the detaining authority has booked the detenue in case FIR No. 98 of 2020 under Sections 18, 20 & 38 of ULAP of Police Station, Dooru in which the detenue was already under custody of the police, therefore, there is no question of passing the impugned detention order. Further contended that the detenue has not applied for bail in the FIR No. 98/2020 nor the bail was granted by the competent authority in favour of the detenue, therefore, there was no requirement of passing the detention order.

5. Per contra, learned counsel for the respondents insists that detention order has been passed on subjective satisfaction by the detaining authority and detention order is in accordance with law and there is no violation or infringement of rights guaranteed under the Constitution of India. Hence, he exhorts dismissal of petition.

6. Given the case set up and submissions made by learned counsel for the parties, it is apt to mention that whether a person, who is in jail, can be detained under preventive detention law, has been a subject matter of consideration before the Supreme Court very often. In Dharmendra Suganchand Chelawat & Anr. v. Union of India, AIR 1990 SC 1196, the Supreme Court, while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334; Masood Alam v. Union of India, AIR 1973 SC 897; Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508; Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC 1130; Ramesh Yadav v. District Magistrate, Etah, AIR 1986 SC 315; Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177; Binod Singh v. District Magistrate, Dhanbad, AIR 1986 SC 2090; Smt. Shashi Aggarwal v. State of U.P., AIR 1988 SC 596, and came to the conclusion that an order for detention can be passed against a person in custody and for that purpose, it is necessary that grounds of detention must show that (i) detaining authority was aware of the fact that detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before detaining authority on the basis whereof it may be satisfied that (a) detenu is likely to be released from custody in near future, and (b) taking into account the nature of antecedent activities of detenu, it is likely that after his release from custo