The detention order must be based on compelling reasons, and the detaining authority must supply all material forming the basis of the detention to enable effective representation. Failure to do so renders the detention illegal and unsustainable.

JUDGMENT :

1. Through the medium of the present petition, the petitioner (detenue) is seeking quashment of the order of detention bearing No. 04/PSA of 2023 dated 22.07.2023 (hereinafter for short, the 'impugned order') passed by District Magistrate, Nandini Hills, Samba, J&K (detaining authority) under Section 8 of the J&K Public Safety Act, 1978 (for short, the Act of 1978).

“Arguments on behalf of Petitioner”

2. It is contended by the learned counsel for the detenue that the impugned order is passed on the basis of four FIRs registered against the petitioner, out of which challan has been produced against the petitioner in FIR No. 299/2021 dated 28.12.2021 for commission of offences under Section 341/323/406/504 Indian Penal Code and FIR No. 50/2023 dated 29.4.2023 for commission of offences under Section 8/22/25 Narcotics Drugs and Psychotropic Substances Act, 1985 (Hereinafter NDPS Act) and in the FIR Nos. 26/2022 and 162/2023, the investigation is stated to be under process.

3. It is submitted that the impugned order and the grounds of detention had been passed on assumption and not on the basis of mandate of the Act 1978. It is further submitted that the grounds of detention are substantially based on FIRs registered against the petitioner and alleged offences stated in FIRs and the facts narrated, do not make any case for acting in any manner prejudicial to the maintenance of public order and, furthermore, the allegation made against the petitioner of "often indulging into of peddling of Narcotic" is not supported by the grounds of detention and only one FIR with respect to the offence under NDPS Act is registered against the petitioner, and as such, the threat to public order under Section 8 of the Act of 1978 is not coming forth from the impugned order.

4. It is further contended that the essential material that formed the basis for passing of the impugned order, i.e., dossier and the complete investigation of the FIRs alleged in the Dossier including the recovery memos, have not been supplied to the petitioner, as such, the petitioner has been prevented from making effective representation against the impugned order.

5. In FIR No. 299/2021, the charge-sheet is supplied to the detenue except for statement of witnesses, seizure memo, other evidence gathered against the petitioner during investigation and the petitioner has only been supplied with the charge-sheet alongwith list of witnesses.

6. In FIR No. 26/2022, no material whatsoever besides a Copy of the FIR is supplied to the petitioner. Further, in FIR No. 50/2023, no charge-sheet in this FIR much or less any material collected during investigation has been supplied to the petitioner except for a copy of the FIR, which has resulted in defeating the rights guaranteed to the petitioner in terms of Section 13 Clause (1) and (2) of the Public Safety Act, 1978 and Article 22 of the Constitution of India.

7. It is submitted that the provisions for execution of detention order as provided under Section 9 of the Act of 1978 have not been complied with in the present case, as the impugned order has not been read over and explained to the petitioner in the language he understands. It is submitted that the impugned order has been passed without application of mind and in an arbitrary manner, as at time of passing of the impugned order, the detaining authority was aware that the petitioner was already in judicial remand for seven days with effect from 20.07.2023 in District Jail, Kathua in connection with FIR No. 162/2023, registered with Police Station, Bari Brahmana .The fact that petitioner was already in judicial remand evidences that the ordinary law was sufficient to deter the petitioner from commission of future offence and the detaining authority has failed to spell out the reasons, on the basis of which, the imposition of detention became imperative while the detenue was admittedly in judicial custody.

8. It is further submitted by the ld. Counsel for the detenue that the o