JUDGMENT Challenge in petition on hand, is to order No. 07/PSA of 2011 dated 4th of November, 2011 of District Magis­trate Poonch (hereinafter Detaining Authority) whereby Sh. Manawar Hussain Shah alias Babu Shah S/o Habib Hussain Shah R/o Village Panag Sharief District Kotli, Pak-Occupied Kashmir, (hereinafter referred to as detenuefor short), has been detained under Section 8(1)(b)(ii) J&K Public Safety Act, 1978 for a period of three months and he was directed to be lodged in district jail, Poonch. 2. The detention order is questioned on the grounds that it has been passed in a mechanical manner without ap­plication of mind and that the detenue has not been provided the documents relied upon by the detaining authority so as to enable him to make an effec­tive representation against his deten­tion. It is further pleaded that the grounds of detention made use of by the detaining authority to slap detention order were not available to the detenue in as much as the detenue is a permanent resident of state and a citizen of India and in view of the law laid down in Mohsim Shah versus Union of India and others 1975 KLJ 69, he is not li­able to be deported or pushed back. 3. The charge sheet/challan pre­sented in Sessions Court Poonch against the petitioner and one Tuffail Hussain Shah under Section 18 of Un­lawful Activities Act, according to the petitioner, has been dismissed by the trial court on 20th of October, 2011 and the state has decided not to file any appeal against the judgment of the ac­quittal recorded by the trial court. The earlier detention order No. 02/PSA of 2010 dated 8th of January, 2010 passed by the detaining authority placing detenue under preventive detention, is said to have been challenged in HCP No. 2/2010 and quashed by the learned Single Judge on 5th of June, 2010, leav­ing no room for placing the detenue second time under the preventive de­tention. 4. The respondents have not filed any reply/counter. However Mr. Gagan Basotra, learned Senior Additional Ad­vocate General, has made detention record available for perusal. 5. I have gone through the petition and have heard the learned counsel for the parties. 6. The detenue is a resident of Pak Occupied Kashmir and has entered In­dia on a valid visa through Attory Check Post, Punjab on 6th of August, 2009. However Mr. Gagan Basotra, learned Senior Additional Ad­vocate General, has made detention record available for perusal. 5. I have gone through the petition and have heard the learned counsel for the parties. 6. The detenue is a resident of Pak Occupied Kashmir and has entered In­dia on a valid visa through Attory Check Post, Punjab on 6th of August, 2009. He married one Safeena Malik alias Sobia D/o Abdul Hamid Malik R/o Fazalabad, Poonch on 22nd of August, 2009. The detenue was arrested on 1st of December, 2009 in connection with case FIR No. 168 of 2009 under Section 18 of Unlawful Activities (Prevention) Act. The investigation was concluded as proved and a chargesheet presented in the Sessions Court, Poonch. The peti­tioner and his co-accused were acquit­ted of the charge by the Sessions Court. In the meantime detenue was placed under preventive detention vide order No. 2/PSA of 2010 dated 8th of Janu­ary, 2010. This detention order was challenged before this Hon’ble Court and the same was quashed on 5th of June, 2010. The detenue-accused has remained at large till the second de­tention order was passed by the detain­ing authority on 4th of November, 2011. It is pertinent to point out that while the earlier detention order No. 2/PSA of 2010 dated 8th of January, 2010 was passed under Section 8(a)(b) of the Act, while second detention order No. 07/ PSA of 2011 dated 4th of January, 2011 assailed herein has been passed un­der Section 8(1)(b)(ii) of the Act. 7. The power to make orders detain­ing a person in terms of Section 8(1) of the Act lies with the Government. How­ever Section 8(2) carves out an excep­tion to the general rule and empowers Divisional Commissioner and District Magistrate to exercise powers con­ferred by Section 8(1) clause (a) and (a)(i) of the Act otherwise available to the Government. It follows that the Di­visional Commissioner or District Mag­istrate may order preventive detention of a person to prevent him from acting in any manner prejudicial to the secu­rity of the state or the maintenance of the public orders or to prevent him from smuggling timber or liquor, its smug­gling, transportation, concealment or harbour a person engaged in smuggling of timber or liquor or abetting such ac­tivities. The power available to the gov­ernment under Section 8(1)(b) is re­tained by the Government and neither Divisional Commissioner nor District Magistrate is given authority to exer­cise such powers. Therefore, where a foreigner within the meaning of for­eigners Act or a person residing in the area of the State under the occupation of Pakistan is proposed to be put under preventive detention so as to regulate his continuous presence in the state or to make arrangement for his expul­sion, the power to make an order of pre­ventive detention lies with the Gov­ernment and not with the Divisional Commissioner or District Magistrate. In the present case the detention or­der is made by the District Magistrate and not by the Government. The deten­tion order, is therefore liable to be quashed for having been made by an incompetent authority. 8. The detaining authority has de­termined the period of detention at the threshold. It is pertinent to point out that even if the District Magistrate Poonch is taken to have power to pass a detention order under Section 8(1)(b)(ii). His order in terms of Section 8(4) of the Act is to remain in force for a period of 12 days and cease to have effect thereafter unless it is approved by the Government. The detaining au­thority therefore had to leave the ques­tion of period of detention to be decided by the Government. Though the gov­ernment has subsequently on 5th of January, 2012 decided the period of detention yet it does not wash of the illegality committed in fixing period of detention before approval of the Government under Section 8(4) of the Act. The District Magistrate by fixing the period of detention has led the detenue to be­lieve that representation if any filed by him shall not be accorded any consid­eration, in as much as, the detaining authority has already made up its mind as regards period of detention. The de­taining authority by determining the period of detention at the initial stage even before it was executed, has vio­lated the mandate of Article 22(5) Con­stitution of India and Section 13 of the Act. 9. The detaining authority as is evi­dent from a bare look at the detention order has not recorded the satisfaction that the detenue was required to be placed under preventive detention so as to regulate his continued presence in the 'state or to make arrangement for his expulsion from the state. 9. The detaining authority as is evi­dent from a bare look at the detention order has not recorded the satisfaction that the detenue was required to be placed under preventive detention so as to regulate his continued presence in the 'state or to make arrangement for his expulsion from the state. The detention order on the other hand re­fers to alleged unlawful activities of the detenue of which he stands acquitted by the trial court on 20th of October, 2011 and signifies the intention of the state to file an appeal against the trial court verdict. It is important to note that the State Government, as is evident from communication addressed by the Public Information Officer, Department of Law, Justice and Parliamentary Af­fairs to Sh. Mohammad Azim Khan has decided not to file an appeal against the trial court judgment as in the opinion of the Law Department the case is not fit for filing of appeal. The detention order, in the circumstances suffers from non application of mind on part of the detaining authority. 10. The detaining authority while passing detention order has been in fluenced by involvement of detenue in case FIR No. 168 of 2009 under Section 18 of Unlawful Activities (Prevention) Act. The detention record does not in­dicate that copy of the FIR or copies of any other documents connected there­with were supplied to the detenue at the time of the execution of detention order. The non supply of material docu­ments must have prevented the detenue from making an effective and meaningful use of constitutional and statutory safeguards guaranteed under Article 22(5) of the Constitution of In­dia and Section 13 of J&K Public Safety Act. It is pertinent to point out that the detenue has been acquitted of the charge in case FIR No. 168 of 2009 and State Government already decided not to file any appeal against the trial court judgment. The detenue therefore is held in custody without any charge. 11. The detenue insists that being a permanent resident of Jammu and Kashmir state and a citizen of India he has a right to stay in the state and nei­ther his stay is to be regulated nor he is liable to be deported or pushed back. The detenue therefore is held in custody without any charge. 11. The detenue insists that being a permanent resident of Jammu and Kashmir state and a citizen of India he has a right to stay in the state and nei­ther his stay is to be regulated nor he is liable to be deported or pushed back. The detenue in the circumstances would make such a representation only after he was handed over all the mate­rial that weighed with the detaining authority while passing the detention order. Once material was not provided, the detenue is prevented from making an effective use of rights constitutional and statutory safeguards available to him. 12. The detaining authority did not inform the detenue through detention order or otherwise that he could make representation to detaining authority during the intervening period of 12 days, the detention order was to remain in force pending approval of the State Government. It needs to be emphasized that once the detaining authority is­sued a detention order under Section 8(2) of the Act, it was expected to real­ize that the detention order in terms of Section 8(4) of the Act was to remain in force for a period of 12 days and that during such period the detenue could not be deprived of his right to represent against his detention. The detaining authority because of his failure to in­form the detenue that of his right to represent against the detention vio­lated the constitutional and statutory rights available to the detenue. 13. For the reasons discussed, the petition succeeds and is accordingly, allowed. The detention order No. 7/PSA of 2011 dated 4th of November, 2011 is set-aside. Resultantly, the detenue be let off preventive detention in accor­dance with the law. Detention record be returned. 14. Disposed of.