The detention under the Jammu and Kashmir Public Safety Act requires compelling reasons, and the detenu has a constitutional right to make a representation against his detention under Article 22(5) of the Constitution of India.

JUDGMENT :

1. The District Magistrate, Samba vide Order No. 03/PSA of 2021, dated 16.06.2021 detained the detenu under Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 in order to prevent him from acting in any manner prejudicial to the maintenance of public order.

2. The detenu has assailed the order of detention on the following grounds; (i) the impugned detention order was passed when the detenu was already in judicial custody in FIR No. 03/2021. The respondents have not disclosed any compelling circumstances which require the preventive detention of the detenu; (ii) the impugned order of detention is a verbatim copy of the police dossier, as such, there is total non-application of mind on the part of the Detaining Authority, while passing the order of detention; (iii) the detenu was arrested in FIR No. 66/2003 and was acquitted of the same vide order dated 08.01.2013, similarly the detenu was granted bail in FIR Nos. 33/2009 and 86/2010 but the respondent-Detaining Authority has not shown any awareness to this fact, therefore, there is lack of application of mind while passing the order; (iv) the detenu was not provided all the material relied upon by the Detaining Authority while passing order of detention, as such, precluded him from his right of making effective representation; and (v) lastly, the detenu, immediately, after his arrest on 12.07.2021 moved a representation to respondents but the same has been neither considered nor decided till date.

3. The respondents in their objections have submitted that, the activities of the detenu were prejudicial to the maintenance of law and order and tranquility, as such, detenu was detained under the Jammu and Kashmir Public Safety Act, 1978. The detenu, it is submitted, is a hardcore criminal and had attained notoriety and the common law of the land had failed to deter him from undertaking activities prejudicial to the maintenance of public order, therefore, in order to maintain peaceful atmosphere and to prevent him from spreading, expanding and continuing his criminal activities and disturbing public order, it had become necessary to detain him under Public Safety Act.

4. The respondents further submit that there is no legal or procedural infirmity in order of detention, as such, the petition deserves to be dismissed. The detenu was provided with the grounds of detention which were duly explained to him in the language he understands. He was also informed about his right to make a representation. It is urged that the grounds of dentition are definite, proximate and free from any ambiguity and all Constitutional safeguards have been followed. It is also submitted that detenu was also informed about what actually weighed with the Detaining Authority while passing the order of detention under Section 8 of J&K Public Safety Act, 1978.

5. Heard learned counsel for the parties and perused the record.

6. Perusal of the detention order and the grounds of detention reveals that the Detaining Authority has not shown any awareness to the fact that the detenu was acquitted in FIR No. 66/2003 and was granted bail in FIR Nos. 33/2009, 86/2010 and 203/2019. The Detaining Authority has also failed to disclose the compelling reasons for passing order of detention when the detenu was already in custody. The Detaining Authority has, thus, failed to show compelling reasons warranting the detention of the detenu under Section 8 of the J&K Public Safety Act.

7. There is no response to the averment that the detenu was granted bail in FIR No. 33/2009, FIR No. 86/2010, FIR No. 203/2019 and acquitted in FIR No. 66/2003. The Detaining Authority was, thus, not alive to the situation and, thus, there was total non-application of mind by the Detaining Authority while passing the order of detention, as such, the impugned detention was vitiated.

8. The Supreme Court in Anant Sakharam Raut & Ors. v. State of Maharashtra & Anr., AIR 1987 SC 137, while considering similar proposition, it has been held