The court emphasized the importance of the Detaining Authority being certain about the nature of the activities of the detenue before passing a detention order, and highlighted the distinction between 'security of the State' and 'maintenance of public order' as established by previous Supreme Court judgments.

JUDGMENT :

MOKSHA KHAJURIA KAZMI, J.

1. District Magistrate, Srinagar-respondent no. 2 herein, by Order No. DMS/PSA/90/2021 dated 02.12.2021, has placed Illyas Farooq Bhat S/o Farooq Ahmad Bhat R/o Rajbagh near Abdullah Bridge, District, Srinagar, (for short “detenue”) under preventive detention to prevent him from acting in any manner prejudicial to the maintenance of security of the state and directed his lodgment in District Jail, Baramulla under Section 8 of the provisions of J&K Public Safety Act, 1978.

2. The detenue through his father has filed the instant petition stating therein that the detenue is a peace loving citizen, has never indulged in any subversive or unlawful activity which would cause prejudice to the security of the state. The detenue came to be arrested by police Station Sadder, Srinagar in the month of August, 2020 and falsely implicated in FIR No. 176/2020 for the commission of offences under Section 307 IPC and ¾ Explosive Substances Act. The detenue during custody of police Station Sadder was admitted to bail by the learned 3rd Additional Sessions Judge, Srinagar vide order dated 01.02.2021 in the said FIR, however, the detenue was not released from the custody but was kept in Police Station Pulwama up to 05.02.2021 and came to be detained in terms of impugned order and lodged in Central Jail Kote Bhalwal, Jammu. The Detaining Authority has failed to prepare the grounds of detention itself which is a pre-requisite for passing any detention order. The relevant material on which the detention order has been passed has also not been supplied to the detenue which has prevented the detenue to make an effective representation. There is a considerable delay in execution of the impugned detention order as the same stands passed on 02.12.2021 but has been executed on 08.01.2022. It is further urged that the detenue was not informed that within how much time he can make a representation against his detention to the Detaining Authority or to the Government, which violates the rights of the detenue as guaranteed under Article 22 of the Constitution and Section 13 of the Public Safety Act. The grounds of the detention were never read-over and explained to the detenue in his local language which he could have understand as the detenue has read only up to 8th class.

3. The detenue has raised several other grounds to challenge the detention order. The counsel for the detenue, however mainly laid emphasis on the ground that the detention order has been issued without application of mind as the Detaining Authority was not certain as to whether the detention order is to be passed either on the ground of Security of the State or maintenance of public order.

4. The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of the detenue are highly prejudicial to the security of the State. It has been averred in the reply that the Detaining Authority has followed the provisions of J&K Public Safety Act and the detenue has been detained after following due procedure. It is pleaded that the detention order and grounds of detention along with relevant material were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit

5. Having heard learned counsel for the for the parties and perused the material on record, I am of the considered view that the impugned order of detention does not sustain in the eyes of law, as the grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the police to the Detaining Authority. The Detaining Authority has only tried to change the shape of the paragraphs of the dossier.

6. It is the legal duty of the Detaining Authority to find out that the allega