1. Pursuant to Order No.02 of 2017 dated 17.04.2017 passed by District Magistrate, Jammu, detenue has been taken into preventive custody so as to
deter him from acting in any manner prejudicial to the maintenance of public order.Â
2. The period of detention in such cases is maximum for one year and it has to be in piece-meals i.e. initially for a period of three months then
extendable upto one year. The detenue has been taken into custody on 17.04.2017 so he has been in the preventive custody for last more than 10
months.Â
3. Cursory glance on the grounds of detention suggests that the District Magistrate has not been certain for deriving subjective satisfaction about
activities of the detenue. In the grounds of detention different types of words have been employed i.e. „activities of the detenue are hurting the
sentiments of particular community which may lead to communal clashes/disturbance of peace and tranquility in the area; then in Para 7 it has
been recorded that „the activities of the detenue are highly prejudicial to the security of the society/public peace/tranquility and public order.Â
4. Section-8 of the J&K Public Safety Act, 1978 provides the procedure, manner and method as to how a person’s liberty can be curtailed.
Preventive custody normally is for preventing a person from any such activities prejudicial to the maintenance of public order; it is not a penal in its
operation.  Â
5. While exercising such jurisdiction, personal liberty of a person which is guaranteed under Article 21 of the Constitution has to be respected.
Curtailment of liberty is exception which is permissible but after deriving subjective satisfaction; procedural safeguards are to be adhered to so that the
act of the detaining authority may not have trappings of negating the personal liberty as guaranteed.Â
6. The order of detention on the face of it shows non-application of mind. District Magistrate has simply said that dossier has been brought to his
notice, based on which he has proceeded and passed the order of detention which means he has not applied his own mind to the facts and the
circumstances so as to derive subjective satisfaction.Â
7. No-doubt District Magistrate has recorded that he has derived subjective satisfaction, but in effect that has not happened otherwise he would not
have recorded the words prejudicial to the security of the society/public peace/tranquility and public order, which means he himself was not certain
what were the activities of the detenue.Â
8. Another important flaw is that the detaining authority i.e. District Magistrate has not informed the detenue that he has a right to make
representation even before him, instead it has been recorded that he can represent against his detention before the Government.Â
9. Said issue has been dealt with by the Hon’ble Division Bench of this Court in case Tariq Ahmad Dar vs. State of J&K and others, LPAHC
No.43/2017 decided on 09.06.2017, wherein it has been held that there is serious violation of constitutional guaranteed right of the detenue, Para 16 &
17 of the said judgment are relevant to be quoted:-
“16. The plea of the learned counsel for the respondents, that the detenue could make a representation to the State Government and that such an
opportunity had been provided, would be of no consequence for the simple reason that the Governments approval of the detention order came later i.e.
on 28.12.2016 whereas, the detention order was executed upon the detenue on 24.12.2016 and between that date and 28.12.2016 he had a right to
make a representation to the detaining authority i.e. the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been
given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.Â
17. In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as
the detention order has been invalidated because of noncommunication of the fact that the detenue could make a representation to the detaining
authority. The detention order having become invalid, the detenue is liable to be released forthwith insofar as this detention order is concerned.â€
10. As against the detenue, four cases have been registered, one in the year 2010 another in 2015, then in 2016 and thereafter in 2017, for commission
of offences punishable under Section 188 RPC and 3 PCA Act, but it has been nowhere shown as to whether he has been arrested in connection with
those cases and as to whether he had applied for grant of bail.Â
11. It is now well settled law that in connection with criminal cases order of detention can be passed provided compelling reasons are recorded for so
doing. District Magistrate has not even formulated the grounds of detention which would form base for ordering preventive detention.Â
12. The contention of learned counsel for the petitioner that the material forming base for passing the order of detention has not been supplied to the
detenue is repelled by learned Sr.AAG by alleging that as per the records material has been supplied to the detenue and he has also acknowledge the
receipt of the same. In addition thereto grounds of detention have been read over to him and explained by one Inspector Rajesh Sharma but affidavit
of the said Inspector has not been filed in support thereto; when a requirement of law is that a person who explains the grounds of detention to the
detenue has to file an affidavit. Only copies of detention warrant and grounds of detention have been handed over to the jail authority; it is not made
clear as to whether supporting material has been supplied to the detenue. When it is so detenue has been deprived by violating the valuable
constitutional guaranteed right of filing effective representation as is a mandate of Article 22(5) of the Constitution. When there is infraction of
guaranteed right, order of detention becomes unsustainable.Â
13. For the reasons stated hereinabove and keeping in view the position of the detenue having been in the preventive custody for more than 10
months, there  is  no  scope for  continuing with detention. The order of detention bearing No. 02 of 2017 dated 17.04.2017,
viewed from any angle, is not sustainable, accordingly quashed. Detenue be released forthwith provided he is not required in any other case.Â
14. Detention records as produced be returned to learned Sr.AAG.
15. Disposed of as above.