IMPORTANT POINT
A detention order cannot be sustained if it relies on grounds that have previously been quashed, and the distinction between 'law and order' and 'public order' is critical in determining the legality of preventive detention under the J&K Public Safety Act.

JUDGMENT :

Javed Iqbal Wani, J.

1. Through the medium of instant petition quashment of detention order bearing No. 01/PSA of 2021, dated 06.05.2021, (hereinafter for short the "impugned order") passed against the detenu, namely, Pritam Singh, is being sought for by the petitioner as also a writ of mandamus for his release.

2. It is being stated in the petition that the detenu was arrested in connection with various FIRs registered against the detenue as is reflected in the grounds of detention and subsequently placed under preventive detention vide Order No. 04/PSA of 2020, dated 10.08.2020, which was challenged in a writ petition, being WP(Crl) No. 34/2020. The said order of detention was quashed by this Court in terms of judgement dated 26.11.2020 and detenu was directed to be released from preventive detention, but the detenu was not released and while being in custody, he has been again placed under preventive detention in terms of impugned order of detention.

3. Learned counsel avers that in spite of quashment of earlier detention order, respondents have again detained the detenu under preventive detention in terms of impugned order of detention.

4. It is being stated that grounds of detention, pressed into service by detaining authority to place detenu under preventive detention in terms of impugned order of detention, are identical to grounds of detention, used by detaining authority while issuing earlier detention order, already quashed by this Court and that the same shows non-application of mind on the part of detaining authority. It is being stated that the detaining authority has not narrated any fresh grounds of detention against detenu even though a passing reference has been made in the grounds of detention that the detenu, if released, would resort to gruesome criminal activities and expand his criminal gangs, which by itself does not amount to fresh grounds when most of the incidents or grounds are taken from earlier grounds of detention and therefore, impugned detention order is bad in law because no fresh ground has been mentioned in second detention order. To buttress his argument, learned counsel has also annexed the judgement passed in the earlier writ petition in support of his submissions.

5. It is seen from the record of the file that this Court in the earlier writ petition has already held that the detaining authority while formulating the grounds of detention has failed to apply its mind, inasmuch as the grounds of detention are almost ditto copy of the police dossier. A perusal of the grounds of detention and police dossier reveals that the language and expression used in both the documents is more or less similar to each other with amalgamating of words. This clearly shows that the detaining authority has acted in a mechanical manner.

6. The grounds of detention bear reference to five FIRs; out of which the detenue is stated to have been acquitted in one FIR. There is nothing in the detention record or in the counter affidavit of respondent no.2 to show that the petitioner has been provided the copies of challans of the cases in which challans have been produced against him or that he has been provided the copies of the statements of witnesses recorded under section 161 Cr.P.C. of the cases in which investigation is still pending. Therefore, the contention of the petitioner that whole of the material which formed the basis of the grounds of detention was not supplied to him appears to be well founded. Aforesaid material assumes importance in the facts and circumstances of the case. It needs no emphasis, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining