Y.P. Nargotra, J. 1. The District Magistrate Srinagar passed the following detention order under Section 8 of Public Safety, Act vide his No. DMS/PSA/18 Dated 24.4.2002: Whereas, I, Abdul Hamid, IAS District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar that with a view to prevent Shri Mohd. Rafiq Rather S/o Gh. Nabi Rather R/o Laloo Shishgari Bagh District Budgam from acting in any manner prejudicial for the maintenance of the security of the state it is necessary to do so. Now therefore in exercise of the powers conferred by the Section 8 of the J&K Public Safety Act of 1978, I, District Magistrate Srinagar hereby direct that the said Shri Mohd Rafiq Rather @ Thaba S/o Gh.Nabi R/o Lalo Shishgari Bagh Distrtict Budgam be detained and lodged in Kot-bhalwal Jail Jammu." 2. The detenu was already in the custody as had been arrested on 1st of March 2002 alongwith his associates and arms and ammunition were recovered from him, in connection with which FIR 21/2000 was registered with the police station Sherigari. The detention order aforesaid was approved by the Government on 3rd of May 2002 and detenu was taken into preventive custody on 29th of April 2002. The detention order and the detention of the detenu is the subject-matter of challenge in this Habeas Corpus petition. LC for the petitioner Mr. Shaheen has challenged the detention order on various grounds which are being dealt with here under. 3. LC for the petitioner firstly contends that the detenu was already in the custody of the police under FIR 21/2002 for commission of offences under Section 3/4 and Section 20 of POTA . Going with the nature of the offences with which the detenu stood charged there was no likelihood of his being released on bail. Therefore, the detaining authority did not possess jurisdiction to pass the order for the preventive detention of the detenu. The detaining authority was bound to take into consideration the fact of the detention of the detenu before passing the detention order but according to him the detention has been passed in a most mechanical manner without examining the question, as to whether there was any likelihood of release of the detenu on bail. The detention order therefore, is illegal and cannot be sustained under law. The detention order therefore, is illegal and cannot be sustained under law. On the other hand the contention of LC for the respondent/State is that merely because the detenu happened to be in the custody of the police. The detaining authority was not debarred under law to pass a detention order under Section 8 of the PSA. The fact of detenu being in custody of the police was very well taken into consideration and thereafter being satisfied that detenu in the event of his release on bail was likely to engage in the activities prejudicial to the security of the state, the detention order was passed. In AIR 1995 SCW 1841 it has been held: The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody, has been engaging the attention of this court since it first came up for consideration before a Constitution bench in Rameshwar Shah v. District Magistrate, Budgam, (1964) 4 SCR 921. To aschew proximity we refrain from detaining all those cases except that of Dharamandra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 where in a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (Supra) answered the question in the following words: The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) that the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression `compelling reasons ` in the contest of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it must be satisfied that (a) the detenu is likely to be released from custody in the near future; and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.� When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority awareness of the fact that the detenu was in judicial custody at the time of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averments made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified." 4. In another case Amrit Lal & Ors. v. Union of India, (2001) 1 SCC 341 their Lordships of the Supreme Court observed: In Augustin decision this Court also placed strong reliance on an earlier but oft-cited decision of this Court in Binod Singh v. District Magistrate, Dhanbad wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It is in this perspective as above, that the recording of the officer concerned in the matter. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It is in this perspective as above, that the recording of the officer concerned in the matter. Under reference ought to be noticed and the same read as below: Even though prosecution under the Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Shri Amritlal. I am satisfied that there is compelling necessity in view of the likelihood of his moving an application for bail and in the event of his being granted bail, the likelihood of his indulging in Illicit Traffic in narcotic drugs as is evident from the trend of his activities, to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.� 5. It is this reasoning which the Ld. advocate contend that the High Court should have held to be completely erroneous in the matter of being the basis of an order of detention. 6. The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail however is not available in the reasoning available is the `likelihood of his moving an application for bail which is different from likelihood to be released on bail. This reasoning, in our view, is not sufficient compliance with the requirements as laid down." 5. From the afore-quoted authorities of the Apex Court the principle emerging for passing a valid order of detention, appears to be that it must be shown that the detaining authority was aware of the fact that detenu was already in detention and that there were compelling reasons justifying such detention. The expression compelling reasons in the context of making an order for detention of a person already in custody would imply that there must be cogent material before the detaining authority on the basis of which it was satisfied that detenu was likely to be released from custody in near future had taking into account the nature of the antecedent activities of the detenu, it is likely that after his release he would engage in prejudicial activities. 6. Now the question arises what can be the cogent material on the basis of which a detaining authority can validly draw the satisfaction that detenu was likely to be released in near future. 6. Now the question arises what can be the cogent material on the basis of which a detaining authority can validly draw the satisfaction that detenu was likely to be released in near future. In the later case quoted above their Lordships observed that the inference must be drawn from the available material on record and must not be ipse dixit of the officer passing the order of detention. The material available on record in my view can be in the nature of the allegations on which the detenu has been detained in the custody. If the allegations constitute such an offence on which there is likelihood of the release of the detenu on bail, such material will be sufficient to draw the inference that there was likelihood of detenu being released in near future. 7. In the instant case the detenu admittedly stood arrested on first of March 2002 under FIR 21/2002 for commission of the offences under Section 3/4 read with Section 20 of POTA. In view of the stringent provisions of POTA regarding bail etc. the chances of release on bail of the detenu would be out of question at least for a year from the date of detention. The detenu admittedly has even not applied for bail and in these circumstances there could be no question of release of the detenu from custody in the near future, but despite this fact the detention order under Section 8 was passed by the detaining authority. The detaining authority cannot be deemed to have been satisfied validly that there was likelihood of release of the detenu in the near future. The detention order as such fails to satisfy the test laid down by the Honble Supreme Court and so deserves to be quashed. 8. This apart the detention order itself recites that the detaining authority was satisfied on the basis of the records received from SSP that detenu was likely to engage himself in the activities prejudicial to the security of the state. Admittedly the records of SSP on the basis of which the detaining authority made the satisfaction that detenu was likely to engage in the activities prejudicial to the security of the state have not been furnished to the detenu by the detaining authority, only the grounds of detention have been communicated. Admittedly the records of SSP on the basis of which the detaining authority made the satisfaction that detenu was likely to engage in the activities prejudicial to the security of the state have not been furnished to the detenu by the detaining authority, only the grounds of detention have been communicated. The contention of LC for the petitioner is that by the failure of the detaining authority for providing the materials on which he had drawn such satisfaction, detenus substantive right of making a representation has been denied and this lapse on the part of the detaining authority renders the detention illegal being violative of the mandate of Section 13 of the PSA and Article 22(5) of the Constitution of India. The contention of the LC for the State, that the grounds of detention furnished to the detenu contained full details of the necessary facts and, therefore, non supply of the material on which the grounds of detention were based does not invalidate the detention order. 9. Article 22 (5) of the Constitution of India mandates that when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order and likewise, Section 13 of the PSA also enjoins a duty upon a detaining authority to furnish the grounds of detention to the detenu within the stipulated period and to inform him that he has a right of making representation to the Government against his detention. In my view the grounds in this context do not mean only a recital or reproduction of such facts on which the detaining authority has drawn the necessary satisfaction. Furnishing of the grounds is co-related to the right of the detenu to make representation and effective representation can only be made when a detenu is in possession of all the material, on the basis of which the detaining authority has drawn the satisfaction because it is only on the basis of such material a detenu can represent that it was not the case where detaining authority could have drawn the necessary satisfaction. Affording of such material to the detenu can lead to making of an effective representation by a detenu. Affording of such material to the detenu can lead to making of an effective representation by a detenu. Thus, communication of only the grounds of detention is not sufficient. It is the mandatory duty of the detaining authority that alongwith the grounds of detention the material on which the grounds of detention are based, is also supplied to the detenu. In 2002 Vol. 2 SLJ 574 para 4 it has been held: 4. Obviously the basic facts given in the grounds and subjective satisfaction of the detaining authority District Magistrate Srinagar is based and derived from the report given by the SSP Srinagar to the detaining authority. On the detention file it is found that the dossier/feed back report of SSP, Srinagar is available. Admittedly neither this report nor other material referred in the grounds like FIR and recovery of arms and ammunition have been supplied to detenu. The record also shows that the detenu has been furnished the order and the grounds alone but not the material the basis of the basic facts and information subject of the detention order. In such circumstances compliance with the mandatory provisions of Article 22(5) is not complied with, in absence of material/documents/report referred in the grounds, the detenue cannot be said to be communicated detention order with grounds. This being so the compliance with second limb of affording detenue meaningful and effective representation against the Govt. is equally denied to him.� 10. In the present case it is the admitted position that the detaining authority had drawn the satisfaction on the basis of the material supplied to him by the SSP Srinagar, that material undisputedly has not been supplied to the detenu, therefore there is breach of safeguards enshrined in Section 13 of the PSA and Article 22(5) of the Constitution of India, which renders the detention order and the detention of the detenu illegal. 11. For the aforesaid reasons without referring to the other grounds of challenge the detention order appears to be invalid and, as such, is quashed, and it is ordered that the detenu namely, Rafiq Ahmad Rather, S/o Ghulam Nabi Rather, R/o Laloo, Shishgari Bagh, District, Budgam, be released forthwith, if not required in any other case.