JUDGMENT : (1) Detenu –Mushtaq Ahmad Miyan son of Late Ghulam Hassan Miyan resident of Miyan Mohalla pattan District Baramulla, through his sister seeks quashment of detention order 122/DMB/PSA/2019 dated 01-01-2019 (for short detaining order), passed by District Magistrate, Baramulla (for brevity “Detaining Authority”), directing preventive detention of the detenu. (2) It is pleaded in the petition: (i) That the detenu was in the 31.12.2018 2018 arrested by the police personnel without any justification and was thereafter taken to Police Station, Sopore, Baramulla, and was thereafter implicated in various cases which include case FIR No. 21/2017 U/s 307, 148, 149, 336, 427 RPC P/S Pattan. It is stated that the detenue has neither applied for bail nor bail was otherwise due to him and the detaining authority despite having the knowledge of the fact that the detenue is already in custody has not given justified compelling reasons to pass the impugned order when the detenue was already in custody. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded and there is non-application of mind on the part of detaining authority while passing the impugned detention order. (ii) That the last alleged occurrence as per record has taken place on 11.02.2017. The detaining authority has not given any explanation as to what was the requirement of passing the detention order after about two years when no fresh activity was attributed to him. There has been delay of two years between the alleged activity forming the base for passing the detention order and order of detention and unexplained delay between the activity and order of detention makes the detention unreasonable and unjustified. (iii) That the respondent No. 2 has not furnished the relevant materials like copy of dossier and so called connected material as per record furnished to the detaining authort8y by police and relied upon by the detaining authority for passing the order of detention nor the relevant material like copy of FIR, statements U/s 161, 164 A CRPC, seizure memo, recovery memo, final report under section 173 CrPC of the cases mentioned in the grounds of detention has been furnished to the detenue to enable him to make effective representation. (iv) That the detenue is not an English literate and understands only Kashmiri/Urdu language but the order of detention is in English and no translated script in Kashmiri or urdu was furnished to the detenue. (3) Respondents, on notice, appeared and filed the counter affidavit wherein they have vehemently denied the averments made in the petition. It is also contended that the procedure prescribed by law has been strictly followed. The detention record has also been produced. The detenue was a hardcore stone pelter. The grounds of detention are precise, proximate, pertinent and relevant. There is no vagueness or staleness in the grounds is also being set forth. (4) Heard learned counsel for the parties and perused the record. (5) Learned counsel for the petitioner has made reference of the better affidavit which had been filed 09.05.2019 wherein the respondents had admitted that the detenue was booked under FIR No. 21/2017 punishable under sections 148, 149, 336, 307, 427 RPC and had been arrested on 31.12.2018 while the detention order had been passed on 01.01.2019. It is further stated therein that the detenue was booked under FIR No. 168/2018 punishable under sections 8/22 NDPS but he was subsequently enlarged on bail on 17.08.2018. Explaining it further learned counsel submitted that the Detaining Authority has not been able to make out as to what had been the purpose for which the detenue was taken into preventive custody. His further submission is that the impugned order is liable to be quashed as in the impugned order, Detaining Authority has mentioned activities of detenue may disturb the “peace and public order” and in grounds of detention it is mentioned as “your activities are prejudicial to the maintenance of public order” while as in counter affidavit it is mentioned as “your activities are harmful to maintenance of security of the State.” (6) Per contra, learned Dy. AG while placing reliance on the judgment of Hon’ble Apex Court in case titled Suraj Pal Sahu vs State Of Maharashtra & Ors 1986 4 SCC 378 submits that the order has been properly passed and the petition requires to be dismissed. He further submitted that all the relevant material had been supplied to the detenue so as to enable him to make effective representation. (7) Considered the rival arguments. He further submitted that all the relevant material had been supplied to the detenue so as to enable him to make effective representation. (7) Considered the rival arguments. (8) Perusal of the detention record reveals that the detenue has been booked under various criminal cases which include case FIR No. 21/2017 U/s 148, 149, 336, 307, 427 RPC for commission of various offence and was in police custody which fact is corroborated in the grounds of detention where in at para 4 of the it has been stated that “you are presently under police custody in connection with aforesaid case and are presently in police station Pattan”. In better affidavit as referred hereinabove it is being submitted that the arrest of detenu is yet to take place in FIR Nos. 31/2015 under section 148, 149, 336, 332, 427 RPC and FIR No. 197/2016 U/Ss 148, 149, 336, 307, 332, 427 RPC while he had been in custody in FIR No. 21/2017. It is not put forth either in the grounds of detention or otherwise that detenue had moved any bail application in these cases in which his arrest is yet to take place . It is not thus made out that there have been any compelling reasons to pass detention order in order to prevent detenue from acting in any manner prejudicial to either security of the State or Public order. (9) It is settled position of law that a person in involved in a criminal case can be detained under the provisions of preventive laws provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection, it is quite apt to quote following Para from the judgment “T. P. Moideen Koya vs. Government of Kerala and Ors.” reported in 2004 (8) SCC 106 : “……in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenue was likely to be released on bail” Reliance can also been placed on the judgment of this court in case titled “Mohammad Hussain Dar v. State and others” reported in 2007(2) JKJ HC-231. (10) Commending upon the same aspect of the case, their Lordship of Hon’ble Apex Court in “Sama Aruna v. State of Telangana & Anr” ( AIR 2017 SC 2662 ). Para 24 of the said judgment is apposite to be quoted herein below: “24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” (11) The same view has been repeated and reiterated by the Hon’ble Supreme Court in the judgment delivered in the case of “V. Shantha v. State of Telangana& Others” ( AIR 2017 SC 2625 ). In this regard, Para 13 of the said judgment is relevant to be quoted as under: “The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well-being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenue from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a “goonda” affecting public order because of inadequately yield from the chilli seed sol by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex-facie extraneous to the Act.” (12) Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the Public Safety Act when he was already in the custody of the police authorities in the FIR No. 21/2017 punishable under Section 148, 149, 336, 307, 427 RPC. (13) The record produced by the respondents reveals that 12 leaves have been furnished to the detenue which includes grounds of detention, arrest memo and statement of witnesses. The officer who has furnished these documents to the detenue has not however brought on record the affidavit to substantiate the plea of furnishing the copies. Resort can, in this behalf, be had to the law laid down by the Apex Court of the country in the case of “State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270 , wherein it has been held as under: “Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of Section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/ communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement LPA (HC) 107/2017 10 of 16 to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of Section 13 of the Act.” (14) There appears to be fundamental breach of the rights of the petitioner as guaranteed in terms of Article 22(5) Constitution of India and Statutory Right under Section 13 (2) of the Act. It is being admitted in the ground of detention that the detenue was not highly literate as his educational qualification is stated to be up to 10+2. Neither record nor otherwise there is an explanation that the ground of detention were furnished to detenue in his language which he knows so that he could make an effective representation before the detaining authority. It may also require a mention herein that an affidavit of the person who furnished grounds of detention to the detenue has not been brought on record so that an adverse inference can be drawn against the detenue. He was not made conversant with the ground of detention so was not in a position to submit effective representation. It shall be apposite to quote following Para of the judgment of the Hon’ble Apex Court in ““Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. He was not made conversant with the ground of detention so was not in a position to submit effective representation. It shall be apposite to quote following Para of the judgment of the Hon’ble Apex Court in ““Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440 : “Lastly, Urdu translations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly not supplied to the detenu at all and the only explanation given by the counsel for the respondents at the hearing has been that most of these documents (Urdu translations whereof were not supplied) comprised statements of accounts which had figures in English with some English words written in capital letters and some documents were in Hindi and Gujarati and the record (statements of Rekha, her sister Indi and one Jayantilal Soni, all co-conspirators of the detenu, recorded during the investigation) clearly shows that the petitioner knows English figures, understands English words written in capital letters and can also converse or talk in Hindi and Gujarati and as such the non- supply of Urdu translations of these documents cannot be said to have caused any prejudice to the petitioner in the matter of making a representation against his detention. In our view, the explanation is hardly satisfactory and cannot condone the non-supply of Urdu translations of these documents. Admittedly, the petitioner is a Pakistani national and Urdu seems to be his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfaction. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot be brushed aside as false especially in view of the fact that the same was accepted on the earlier occasion by the Advisory Board who had actually opined that failure to supply Urdu translations of grounds of detention and documents had vitiated the earlier order of detention and following this opinion respondent No. 1 had revoked the said order. Moreover, with the assistance of counsel on either side we have ourselves gone through many of these documents and statements and it is not possible to say that most of them are merely statements of account containing figures in English with English words written in capital letters. These documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Article 22(5) is clearly violated.” (15) There is also force in the contention rassied on behalf of the detenue that the detaining authority had not applied its mind properly. In the impugned order, it is mentioned as “your activities may disturb the peace and public order”, while as in grounds of detention it is mentioned as “your activities are prejudicial to the maintenance of public order” while as in counter affidavit it is mentioned as “your activities are harmful to maintenance of security of the State.” The said position suggests that the detaining authority had not applied its mind while passing the order of detention. Reliance in this regard can be made on the judgment captioned G.M. Shah Vs. State of J&K, reported in (1980) 1 SCC 132 . Para 9 of the judgment is relevant to be quoted: “As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. ‘Law and order’ represents the largest circle within which is the next circle representing “public order” and the smallest circle represents “security of State”. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. ‘Law and order’ represents the largest circle within which is the next circle representing “public order” and the smallest circle represents “security of State”. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions “acting in any manner prejudicial to the security of the State” and “acting in any manner prejudicial to the maintenance of public order” separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detent has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors(3).” (16) For what has been stated above, the order of detention impugned bearing No. 122/DMB/PSA/2019 dated 01.01.2019, passed by District Magistrate, Baramulla, is not valid, as such, is quashed. The detenu is directed to be released from the preventive custody provided he is not required in connection with any other case. (17) The record, as produced, be returned to the learned counsel for the respondents.