HIGH COURT OF JAMMU AND KASHMIR AT JAMMU HC(W) no. 40/2008 Date of Decision: 04.02.2009 Sourav Gupta vs. State and others. CORAM: MR. JUSTICE J. P. SINGH, JUDGE. Appearing counsel: For the Petitioner : Mr. Satinder Gupta, Advocate. For Respondent(s) : Mr. V. K. Chopra, AAG. i) Whether approved for reporting in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No ________________________________________________________ Sourav Gupta has filed this petition through his father Bansi Lal Gupta, questioning his preventive detention, ordered by District Magistrate Samba vide detention order no. 04-PSA of 2008 dated 02.05.2008, mainly on two grounds viz:- (1) Copies of the FIR’s relied upon by the Detaining Authority had not been supplied to the detenue thereby depriving him of his Constitutional right to make an effective representation against his detention; And (2) unawareness of the District Magistrate about petitioner’s arrest in FIR no. 91 of 2008 registered at Police Station Samba under sections 4/25, 3/25 Arms Act 2 and Section 149 RPC, demonstrates non-application of mind. District Magistrate Samba has not controverted the pleas set up in the petition regarding petitioner’s arrest in FIR no. 91/2008 and of non-supply of the copies of the FIR’s to him, which had been relied upon by the Detaining authority while directing his detention. I have considered the submissions of learned counsel for the parties and perused the detention records which were made available at the time of consideration of this petition, by the learned State counsel. Perusal of the grounds of detention does not indicate District Magistrate’s awareness about petitioner’s being in police custody at the time when the detention order had been passed by him, although the police dossier did indicate about the arrest of the petitioner in FIR no. 91 of 2008. Copies of the FIR’s too do not appear to have been supplied to the detenue because the detention records do not contain any such document or entry, on the basis whereof it may be said that copies of the FIR’s, relied upon by the Detaining authority, had been supplied to the detenue. Although Section 8 of the Jammu and Kashmir Public Safety Act, 1978, does not contemplate any impediment on District Magistrate’s power to put a person, who is already in custody, under preventive detention, but all that is required to be done by the District 3 Magistrate in such cases is to record his satisfaction that there was likelihood of such person’s release on bail and when so released, he was likely to indulge in activities prejudicial either to the security of the State or to maintenance of public order or such other activities for which his preventive detention may be permissible under the provisions of Public Safety Act, 1978. Such satisfaction is required to be recorded on the basis of some material justifying such satisfaction. The detention records, however, do not contain any such material, on the basis whereof it may be said that there was any likelihood of petitioner’s release on bail and further likelihood of his indulging in activities prejudicial to the maintenance of public order or security of the State etc. The District Magistrate has not recorded any such satisfaction about petitioner’s likelihood of release from police custody or his indulging in activities for which he may be detained under the Public Safety Act. The detention order, in the absence of any such satisfaction, therefore, becomes unsustainable. That apart, the material relied upon by the District Magistrate, on the basis whereof he had contemplated petitioner’s detention, which includes FIR nos. 30/2008 and 91/2008 registered at Police Station Samba, having not been supplied to the detenue along with the grounds of detention, deprives him of his right to make effective 4 representation to the government against his detention. This is so because supplying of grounds of detention sans material which had weighed with the detaining authority in directing petitioner’s detention, cannot be said to be sufficient compliance to the provisions of Article 22(5) of the Constitution of India. In view of the above discussion, petitioner’s detention deserves to be quashed. Allowing this petition, petitioner’s detention ordered by District Magistrate Samba vide order no. 04-PSA of 2008 dated 02.05.2008 is, accordingly, quashed and a direction is issued to the respondents to release him from preventive custody forthwith, if not required in any other case. Records to be returned to the State Counsel. (J. P. Singh) Judge JAMMU 04 .02.2009 Anil Raina, Secy