Preventive detention requires compelling reasons when the individual is already in custody; failure to consider representation against detention violates constitutional safeguards under Article 22(5).

 JUDGMENT :

1) By the medium of this petition, the petitioner has assailed order of detention bearing No.71/DMK/PSA/2022 dated 27.08.2022, issued by District Magistrate, Kulgam (for brevity “the Detaining Authority”). In terms of the impugned order, Tajamul Islam has been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security, sovereignty and integrity of the State.

2) The petitioner has contended that there has been non-application of mind on the part of the detaining authority while passing the impugned detention order. It has been further contended that the procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that whole of the material that formed the basis of the grounds of detention has not been furnished to the detenue. The petitioner has gone on to contend that that at the time when the impugned order of detention was passed, he was already in custody in connection with FIR No.26/2022 for offences under Sections 302 IPC, 7/27 Arms Act, 13, 16, 18, 20, 38, 39 UAP Act of Police Station, D. H. Pora, and, as such, there were no compelling reasons for the detaining authority to pass the detention. It has also been contended that the representation of the petitioner against the impugned detention order has not been considered by the respondents.

3) The respondents, in their counter affidavit, have contended that they have followed the provisions of J&K Public Safety Act while passing the impugned order of detention. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for parties and I have also gone through detention record.

5) Learned counsel for the petitioner highlighted various grounds while seeking quashment of impugned order but the main grounds that have been argued during the course of arguments are that the detenue was already booked in case FIR No.26/2022 for offences under Sections 302 IPC, 7/27 Arms Act, 13, 16, 18, 20, 38, 39 UAP Act of Police Station, D.H. Pora, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive laws. The other ground urged by the petitioner is that the representation filed against the impugned detention order has not been considered by the respondents.

6) It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others, 1994 SCC (Cri) 1691 and T. P. Moideen Koya vs. Government of Kerala and ors .” reported in 2004 (8) SCC 106.

7) In the grounds of detention, after referring to the contents of the aforesaid FIR, it has been mentioned that these activities of the detenue are prejudicial to the maintenance of security, sovereignty and integrity of Jammu and Kashmir UT. However, the Detaining Authority has not recorded any reason to justify the preventive detention of the petitioner, who was already under