An order of detention of a person already under judicial custody pending criminal trial could only be legitimised if the order or the grounds of detention specifically refer to the compelling circumstances of passing that order of detention despite the detenue being under judicial custody in the criminal case.

ORDER :

1. The present petition has been filed by the petitioner who is under preventive detention under the provisions of the ‘Jammu & Kashmir Public Safety Act, 1978’. He was arrested by the security forces from his home in January 2022 and detained under Public Safety Act vide order No. DMS/PSA/30/2022 dated 09.04.2022 and is lodged in Kote Bhulwal jail, Jammu.

2. According to the learned counsel for the petitioner, the grounds of detention are vague and the allegations levelled by the detaining authority do not enable the petitioner to make an effective representation and the same can only be defended before the trial court. His challenge to the impugned order has been on three grounds, firstly, vagueness of the grounds of detention do not enable him to make an effective representation. Second is the delay in the execution of the order of detention for more than forty days and third is that the grounds of detention being silent of any compelling circumstance to pass the order of detention while the petitioner was already in judicial custody in FIR case no. 327/2021 of Police Station Pattan. The charges inter alia against the petitioner in the aforementioned FIR are under Section 16 & 20 of the Unlawful Activities Prevention Act. The allegation therein against the petitioner was that he had lobbed two hand grenades along with the co-accused causing injuries to two personnel of the CRPF and the four civilians. Learned counsel for the State has also submitted in addition to the above that during the course of investigation the 27 memorandum of the petitioner led to the recovery of the two hand grenades which directly connect him to the case.

3. As regards the first contention put forth by the learned counsel for the petitioner that the grounds of detention are vague, this Court examined Annexure-1 to the petition which is the grounds of detention. It would be necessary to briefly reproduce here the grounds of detention. According to the respondent-UT, the petitioner came into contact with one Mohammad Afzal Lone, an LeT militant and under his motivation, was working as an OGW. It is further mentioned therein that the petitioner allegedly started working with the LeT & TRF cadres and indulged in various activities which facilitate strengthening of network of the LeT outfit and provided shelter to the cadres of the said outfit (no specific instances or manner of facilitating shelter the LeT network is mentioned). Thereafter it is also alleged in the grounds that the petitioner carried out the activities with the fair degree of success for a long period and evaded being noticed (yet again the period during which he has acted is not mentioned and what these activities which he carried out with a fair degrees of success, is also not mentioned). Thereafter it is alleged that the petitioner along with his associates lobbed a grenade at the national highway Palhallan, Pattan on 17.11.2021, in which two personnel of the CRPF and four civilians were injured (this grounds is precise giving a reasonable opportunity to the petitioner to respond). Thereafter, the ground of detention records the fact that case FIR No. 327/2021 was registered against the petitioner under Section 307 IPC, 7/27 Arms Act and 16 & 20 of the Unlawful Activities Prevention Act at Police Station Pattan and upon his disclosure two hand grenades were recovered from an orchard at Wussan Khoie which were kept there for carrying out the attacks on security forces (this ground is also precise giving a reasonable opportunity to petitioner to respond). Thereafter, it is also alleged that the petitioner carried out various anti-national activities like facilitating the strengthening of the LeT network and that he was in touch with the terrorists of the LeT and implementing their instructions on ground for carrying out anti-national activities and that reports from various field formations suggests that the petitioner is OGW of LeT/TRF indulging in anti-national activities incl