The detaining authority must provide compelling reasons for the detention of a person who is already in custody, and the detenu must be supplied with the material on which the detention order is based to enable him to make an effective representation against the detention order.

JUDGMENT :

1. Through the medium of instant petition quashment of detention order bearing No. 78/DMS/PSA/2021, dated 06.04.2021, (hereinafter for short the 'impugned order') passed against the detenu, namely, Junaid Ahmad Dar, is being sought for by the petitioner as also a writ of mandamus for his release.

2. It is being stated in the petition that the detenu 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 detenu is stated to have been arrested on 16.03.2021, after being summoned to Police Station Shopian, and was implicated falsely in case FIR Nos. 42/2021 and 44/2021 registered at Police Station, Shopian, and while being in custody therein in the said FIRs 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, inter alia, on the grounds that detenu was already in custody in connection with case FIR Nos. 42/2021 and 44/2021 and the detaining authority, despite having the knowledge of the said fact, detained the detenu without spelling out any compelling reason thereof in the grounds of detention.

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

5. On the other hand, respondents, in their reply affidavit filed in opposition to the writ petition, resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenu was detained pursuant to impugned order. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu.

6. It is being next averred by respondents that impugned order was executed in accordance with the relevant provisions of law and that the detenu was handed over to the Superintendent Central Jail, Srinagar, for lodgment and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution report/order.

7. 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 detenu. On receipt of the opinion of the Advisory Board, the Government confirmed order of detention. Respondents in the process are stated to have complied with all statutory, constitutional provisions, and followed all requisite formalities without violating any of them.

8. Heard learned counsel for the petitioner, perused the record on the file and considered the matter.

9. While dealing with the first contention/ground of challenge urged by the petitioner qua non-recording of compelling reasons for detaining the detenu when he was already in custody, it would be appropriate to refer to the judgement of the Apex Court in this regard passed in case titled as “Surya Parkash Sharma v. State of U.P. and Others, reported in 1994 (3) SCC 195, wherein at paragraph 5 following has been noticed and laid down:-

“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 first came up for consideration before a Constitution Bench in Rameshwar Shaw V. District Magi