Preventive detention requires compelling reasons when the subject is already in custody; failure to demonstrate this renders the detention order unsustainable.

JUDGMENT :

1. The petitioner has challenged the detention order bearing No.50/DMA/PSA/DET/2021 dated 22.12.2021, issued by District Magistrate, Anantnag-respondent No.2 herein, in terms whereof, Fayaz Ahmad Wani @ Talak (hereinafter referred to as the ‘detenue’), has been placed under preventive custody and lodged in Central Jail, Jammu, for preventing him from acting in any manner prejudicial to security of the State.

2. It is alleged in the petition that the detenue was already in custody in connection with the investigation of various criminal cases and was lodged in District Jail Anantnag, since 15.06.2021 and there was no chance of his being released on bail, as he was already booked under non-bailable offences, however, he has been booked under the provisions of J&K Public Safety Act. The detaining authority has not shown any awareness about the fact that the FIRs were registered against unknown person, and as to how and when the name of the detenue was included in the FIRs and despite a lapse of more than six months, weather the police has completed investigation and any final report has been submitted in the concerned court of law. A mere mention of an incident having taking place somewhere on the basis of which some arrests were made but nothing has been proved till date. Therefore, how the persons in various cases can become the basis for invoking the provisions of preventive laws after six months when no other incident is attributed to the detenue. The passing of order of detention in this manner is abuse of process of law. There is no nexus between the incidents cited and the objects sought to be achieved by passing this order. There is no nexus between the incidents cited and the objects sought to be achieved by passing detention order. The illegal period of detention from the date of arrest w.e.f. 01.05.2021 to the date of issuance of the order of detention under the provisions of J&K Public Safety Act i.e. 22.12.2021 is unaccounted for.

3. The petitioner has challenged detention order on various grounds, one of which is that the detenue was already in custody on the material date in a regular cases who had not moved even bail application. There was thus no reason for detaining authority to take the subject in preventive detention from his custody as under trial. It was contended that the detention of the detenue who was already under punitive custody in a regular case(s) is illegal particularly when he had not applied for bail and therefore, there were no compelling reasons to order preventive detention. It has been further contended that the procedural safeguards have not been complied with in the instant case, as whole of the material which formed basis of the impugned detention order was not supplied to the petitioner. Further, that the grounds of detention are non-existent and stale.

4. The respondents have resisted the petition by filing counter affidavit thereto, wherein they have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the maintenance of Security of the State and his detention was found absolutely necessary, and accordingly, he was ordered to be detained by the respondent District Magistrate Anantnag, with a view to prevent him from acting in any manner prejudicial to the security of the State; that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him; that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit and that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been iss