Preventive detention is invalid if the individual is already in custody for a substantive offense, emphasizing the necessity for compelling reasons and proper application of mind by the detaining authority.

JUDGMENT :

1. This petition has been filed at the instance of the detenu by his mother, thereby challenging the detention order passed by District Magistrate Jammu-respondent No. 2, bearing No.PSA 21 of 2024 dated 04.05.2024, for short "the impugned order‟, whereby detenue, namely Raman Kumar son of Bodh Raj resident of Kathar Tehsil Arnia, District Jammu, has been detained under the provisions of Section 8 of the Jammu & Kashmir Public Safety Act, 1978, hereinafter for short as "Act‟, on the ground that his activities are prejudicial to the maintenance of public order. Accordingly, he has been directed to be lodged at Central Jail, Kot Bhalwal, Jammu.

FACTUAL MATRIX

2. The detenu was arrested by the SSP Samba on 18.08.2022 and remained in custody for one and a half years. Thereafter, he was handed over a copy of the detention order passed by the District Magistrate, Samba. The detenu was released on 23.03.2024. However, shortly after his release, on 26.03.2024, he was again illegally detained by the respondents. When his mother inquired about his detention, she apprised the authorities that there was no valid reason for detaining him, especially since he had already been in custody of the Superintendent, District Jail, Udhampur. Despite this, he was again illegally confined by the SHO, Police Station, Arnia. It is pertinent to mention here that, while the detenu was in the illegal custody of the respondents, he was detained under the impugned detention order. It was only after the documents were furnished to the detenue that representations were filed before the Government and the District Magistrate, Jammu. However, these representations were not considered, or if they were considered, no decision was communicated to the detenu.

3. Although, learned counsel for the detenu has raised many grounds for assailing the impugned order of detention, yet, during the course of arguments, he has laid much emphasis on the following two grounds:

(i) The order impugned suffers from non-application of mind, as the detenu was already in custody at the time of its issuance. Therefore, there were no compelling reasons for the detaining authority to pass the detention order; and,

(ii) The representation submitted to the Government as well as to the District Magistrate, Jammu has not been considered by the respondents. Even if it was considered, the decision has not been communicated to the detenu.

4. On the other hand, the respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is stated that 11 FIRs have been registered against the detenu and that, after drawing the subjective satisfaction, the impugned detention order has been passed by the detaining authority.

5 The first ground raised by the learned counsel for the detenu is that when the impugned order was passed, the detenu was already in custody of the police authorities for a substantive offence, therefore, there was no need to direct his preventive detention. It is submitted that that when the detention order was passed, the detenu was already in custody in connection with FIR bearing No. 44/2024, for offences under Sections 452/323/147, 3/25 Arms Act in which the detenu had neither been released on bail, nor had he applied for bail. Therefore, respondent No.02-District Magistrate, Jammu, did not apply his mind whether detention was necessary despite the fact the detenu was already in custody and had not been released on bail. There is nothing on record to indicate that respondent No. 02-District