Preventive detention orders must disclose compelling reasons, especially when the individual is already in custody, or they become unsustainable under law.

JUDGMENT :

01. The detenu has challenged Order of Detention No. PSA 20 of 2024 dated 20.08.2024 issued by the District Magistrate, Samba, vide which the detenu was placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The order of detention has been assailed by the detenu through his mother-Sapna.

02. The impugned order of detention has been assailed by the detenu on the grounds that; the Detaining Authority has passed the order of detention without any application of mind. There were no sufficient grounds recorded by the Detaining Authority to justify that the alleged activities of the detenu were threat to public order. The Detaining Authority has not provided all the relevant material relied upon while passing the order of detention to the detenu. This has resulted in violation of all procedural safeguards provided to the detenu rendering the order of detention unsustainable.

03. Counter affidavit has been filed and detention record has also been produced.

04. Learned counsel for the respondents submitted that the detenu has been detained on the basis of police dossier submitted by the SSP Samba dated 29.07.2024. The Senior Superintendent of Police, Samba requested the detention of the detenu as he was involved in activities, which were a threat to public order and were prejudicial to the safety of the public in general and maintenance of public order. All the relevant material relied upon by the Detaining Authority have been provided to the detenu and grounds of detention have also been read over and explained to the detenu in the language which he understood. The detenu has also been informed of his right to make a representation. The Detaining Authority has complied with all the statutory requirements and fulfilled the constitutional guarantees. The impugned order of detention has been issued after carefully examining all the material and arriving at a subjective satisfaction, thus, the detention is necessary for maintenance of public order.

05. Heard learned counsel for the parties and perused the record also.

06. Learned counsel for the detenu at the very outset has submitted that the detenu was already in custody when the detention order was passed. The respondents have failed to provide cogent and compelling reasons justifying his detention. When the detention order was passed, the detenu was in custody from 22.07.2024 to 20.08.2024 and this fact has not been controverted by the respondents. The respondents have passed the order of detention without noticing this fact that he was already in custody nor they have explained the compelling circumstances for placing him in detention. The Detaining Authority without arriving at its subjective satisfaction has passed the order of detention. The order of detention or the grounds formulated do not given any compelling reasons necessitating preventive detention of the detenu who was already in custody for alleged commission of offences.

07. The grounds of detention indicate that the detenu was arrested in FIR No. 73/2024 on 22.07.2024. It is well settled that the preventive detention of a person in custody should ordinarily not be ordered. The Detaining Authority, however, can pass the order of detention provided there are compelling reasons for the same or there is immediate possibility of his being released.

08. It is well settled that preventive detention order can be passed, if a person under the police/judicial custody is involved in criminal cases but for doing so, the compelling reasons are to be recorded as to why the detenu cannot be prevented from indulging in these activities. In the absence of these reasons, the order of detention becomes unsustainable under law. It is quite relevant to quote Para-5 of the judgment rendered in Surya Prakash Sharma vs. State of U.P., 1994 SCC (Cr.) 1691, by the Hon’ble Supreme Court:-

“..........The decisions referred to above lead to the conclusion that an ord