The detention order was invalidated due to non-application of mind, failure to provide material to the detenue, and violation of procedural requirements.

JUDGMENT

M.A.Chowdhary, J. - District Magistrate, Shopian (hereinafter called 'Detaining Authority') in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. 94/DMS/PSA/2021 dated 18.10.2021 (for short 'impugned order'), in terms whereof the Petitioner namely Jahangeer Ahmad Malik S/O Gh. Qadir Malik R/O Kiloora Shopian District Shopian (for short 'detenue') was ordered to be detained and lodged in District Jail, Kathua.

2. The impugned detention order has been challenged through the medium of the instant petition, being in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13(1) of the J&K Public Safety Act, 1978.

3. It is pleaded in the petition that the detaining authority-respondent No.2 has not attributed any specific allegation against the detenue. Furthermore, it is stated that the detenue has been incapacitated in filing a representation as the grounds of detention are not in a language which could be understood by the detenue. It is also being stated that the detenue is not an English literate person and he understands only Urdu/Kashmiri languages but the order of detention is in English and it is not possible for him to understand such a hyper technical language. It is also the submission of learned counsel for the detenue that the order of detention and the connected documents annexed with the petition clearly show violation of rights of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India. Further it is contended that the detenue has been bailed out by the competent court but was not released and this important fact has not been mentioned in the grounds of detention.

4. Respondents in their counter affidavit have stated that the detenue was ordered to be detained for maintenance of

'Security of the UT/Country' and had he been let free there would have been every likelihood of his re-indulging in anti-national/anti-social activities. It is also being stated that the detaining authority has passed order of detention after deriving subjective satisfaction in the matter. Grounds of detention, order of detention as well as entire material relied upon by the detaining authority came to be furnished to the detenue well within statutory period provided, as required under Section 13 of the Act. It is further stated that the contents of the detention order/warrant and the grounds of detention were read over and explained to the detenue in the language which he fully understood and in lieu whereof the detenue subscribed his signatures on the execution report.

5. Heard learned counsel for both the sides at length, perused the record and considered.

6. Though a number of grounds have been taken by petitioner in writ petition, yet one ground, which has been vehemently pressed by learned counsel for petitioner as well, is that detaining authority has based his detention order on the cases registered against the detenue vide FIR No. 74/2020 U/Ss 307 IPC & I.A.Act, 16,20 ULA(P) Act registered at P/S Imamsahib, FIR no. 376/2009 U/S 7/25 of Police station Shopian, FIR No. 138/2016 U/S, 7/25 I.A. Act, 4 Exp. Subs Act registered at Police Station Shopian, FIR No. 141/2003 U/Ss 302 RPC, 7/27 I.A.Act of P/S Shopian, FIR No. 267/2004 U/Ss 120,121 RPC 7/25 I.A.Act, 10 Telegraph Act registered at Police Station Shopian, and FIR No. 211/2009 U/S 307 RPC, 7/27 I.A.Act of Police Station Shopian, without mentioning the fact that detenu had already been released on bail in the aforesaid FIRs, by court of competent jurisdiction, which reflects non-application of mind on the part of detaining authority.

7. It may not be out of place to mention here 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 sa