ORDER : M.A. Chowdhary, J.-Through the medium of instant petition quashment of detention order bearing No. DIVCOM “K”/PSA/165/2021 of 2021 dated 10.09.2021, passed by respondent No. 2 (Divisional Commissioner), Kashmir against the detenue namely Muhmmad Lateef Dar, S/O Muhammad Yousuf Dar R/O Sether Sangam Hanjipora Bijbehera, is being sought by the petitioner as also a writ of mandamus for his release and a compensation of Rs. 10 lakh for his illegal detention. 2. It is being stated in the petition that the detenue is a law abiding and peace-loving citizen and has never involved in any subversive activity prejudicial to the public order or security of the State. The detenue is stated to have been arrested by the Police Post Sangam, in connection with FIR No. 04/2021 of Police Station Bijbehara. However, in the said FIR the detenue was admitted to bail on 13.02.2021. Thereafter the detenue was again summoned and detained illegally and shifted to Central Jail, Kotebawal, Jammu to be detained under the Provisions of Prevention of illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act 1988 (Hereinafter referred to as “The Act”) in terms of impugned order. 3. The impugned order is being challenged inter-alia on the grounds that grounds of detention order are vague, non-existent and no prudent man can make a representation against such allegation and passing of detention order on such grounds is unjustified and unreasonable. That the Detaining Authority has mentioned only single FIR in the detention order and the activities alleged in the grounds of impugned order are bad in law and the order passed by the respondent No.2 deserves to be quashed; that the detenue was already granted bail in case FIR No. 04/2021 at the time detention order was passed and the Detaining Authority despite having knowledge about the detenue having already been admitted to bail has not mentioned this important fact in the grounds of detention which shows non-application of mind on the part of Detaining Authority. The detention order was proposed on 03.02.2021 on the sole allegation of FIR No. 04/2021 but has been passed on 10.09.2021, i.e., after a delay of seven months. It is stated that the detenue has been admitted to bail in the said FIR and the challan also stands presented before the competent court. The detention order was proposed on 03.02.2021 on the sole allegation of FIR No. 04/2021 but has been passed on 10.09.2021, i.e., after a delay of seven months. It is stated that the detenue has been admitted to bail in the said FIR and the challan also stands presented before the competent court. It is further urged that the delay is unreasonable, illegal and as such the impugned order deserves to be quashed on this ground also. 4. It is being further urged that the detenue had not been provided copies of the relevant material like copy of dossier, copy of FIR, statements recorded under Section 161/164-A Cr PC referred to, in the grounds thus depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional right of the detenue guaranteed under Article 22 (5) of the Constitution of India. 5. It is also stated that the father of the detenue has moved a representation before the detaining authority, however, the same was not considered as such non-consideration of the representation has rendered the detention of the detenue unconstitutional and deserves to be quashed. 6. Pursuant to notice the respondents filed the counter affidavit which inter-alia reveals that all statutory requirements and constitutional guarantees had been fulfilled and complied with while detaining the detenue, that the detenue is a member of an organized drug trafficking gang working in Anantnag area which is involved in procuring, transporting and sale of psychotropic substance and has been carrying such activates from a pretty long time. The detenue was apprehended during a naka checking of vehicles near Petrol Pump of Sether Sangam and 11 kilograms of poppy straw was seized from his possession. Accordingly, case FIR No. 04/2021, under section 08/15 NDPS Act was registered at Police Station Bijbehara. 7. Heard learned counsel for the parties and also perused the detention record. 8. The detenue was apprehended during a naka checking of vehicles near Petrol Pump of Sether Sangam and 11 kilograms of poppy straw was seized from his possession. Accordingly, case FIR No. 04/2021, under section 08/15 NDPS Act was registered at Police Station Bijbehara. 7. Heard learned counsel for the parties and also perused the detention record. 8. Learned counsel for the petitioner has highlighted various grounds while seeking quashment of impugned order but the main grounds on which stress has been laid during the course of arguments are that there has been total non-application of mind while passing the impugned detention order, inasmuch as at the time of passing the detention order, the detenue was already implicated in case FIR No.04/2021 for offence under Section 8/15 of NDPS Act of P/S Bijbehara and that there were no compelling reasons for the Detaining Authority to make the impugned detention order and the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive detention laws; that the material on the basis of which impugned detention order has been passed has not been supplied to the detenue thereby disabling him from making an effective representation against his detention. 9. It has been contended by learned counsel for the petitioner that the Detaining Authority could not have passed order of detention on the ground of commission of acts within the meaning of the Act of 1988. In order to test the merit of this contention of learned counsel for the petitioner, the object and scope of Section 3 of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act of 1988 is required to be understood. In order to test the merit of this contention of learned counsel for the petitioner, the object and scope of Section 3 of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act of 1988 is required to be understood. The said provision provides that a detention order can be made by the Government or any specially empowered officer of the Government of a particular rank with a view to prevent a person from committing any of the acts within the meaning of “illicit traffic” as defined in clause (c) of Section 2 of the Act, which reads as under: (c) “Illicit traffic” means – (i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium, poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import, inter-State, export inter-State or transshipment of narcotic drugs of psychotropic substances; (iv) dealing in narcotic drugs or psychotropic substances otherwise than as provided in sub-clause (i) and (iii); (v) handling or letting any premises for use for any of the purposes referred to in sub-clauses (i) to (iv); (vi) financing any activity by himself or through any other person in furtherance or in support of doing any of the aforesaid acts’ (vii) harbouring persons engaged in any of the activities specified in sub-clauses (i) to (iv); or (viii) abetting or conspiring in the furtherance or in support of doing any of the aforesaid acts; except to the extent permitted under the Narcotic Drugs and psychotropic Substances Act, 1985, or any rule or order made, or any condition of any licence, permit or authorization issued thereunder.” 10. In the instant case, the Detaining Authority has passed the order of detention in the following terms: “I am satisfied that in order to prevent Muhammad Lateef Dar S/O Muhammad Yousuf Dar R/O Sether Sangam, Hanjipora, Bijbehara District Anantnag involved in FIR No. 04/2021 U/s 08/15 NDPS Act 1988 in Police Station Bijbehara from committing any of the acts/illegal activities coming within the purview of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, Central 1988, it is necessary to detain him; 11. The circumstance which goes on to suggest that there was total non-application on the part of the detaining authority while passing the order of preventive detention against the detenue, is that the detenue in connection with FIR No.172/2019 registered by P/S Bijbehara for commission of offence under Section 8/15 of NDPS Act was taken into custody, and subsequently, admitted to bail by the Court of learned Additional Sessions Judge, Anantnag, on 13th Feb, 2021, however, in the grounds of detention, it is nowhere mentioned that the detenue has been admitted to bail in the aforesaid criminal case. 12. It means either the Detaining Authority has not applied its mind or the full material relatable to the detenu had not been placed before it. So the non-application of mind is explicit which renders the order of detention illegal. In my view I am fortified by the judgment rendered in the case captioned Anant Sakharam Raut Vs. State of Maharashtra and others reported in AIR 1987 SC 137 . 13. Making of an effective representation by a detenu is a very vital constitutional safeguard against the preventive detention. In the absence of the material on the basis of which grounds of detention have been formulated, the detenu has been rendered handicapped and hampered in making an effective representation against the order of detention. The violation of this vital safeguard by the respondents renders the impugned order of detention unsustainable in law. I am supported in my aforesaid view by the judgment of the Hon’ble Supreme 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 . 14. Another ground that has been urged by learned counsel for the petitioner during the course of argument is that there were no compelling reasons for the Detaining Authority to pass the order of detention against the petitioner because he was already implicated in connection with case FIR No.04/2021 of P/S Bijbehara. In this regard it may be noted that preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, there must be compelling reasons for the Detaining Authority to do so. In this regard it may be noted that preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, there must be compelling reasons for the Detaining Authority to do so. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691. 15. The following observations of the of Hon’ble Supreme Court in T. P. Moideen Koya vs. Government of Kerala and ors.” reported in 2004 (8) SCC 106 , are also relevant to the context and the same are reproduced as under: “……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” 16. Further the Supreme Court in Sama Aruna v. State of Telangana & Anr., [ AIR 2017 SC 2662 ], while considering the question whether an order of detention could be passed in the face of the fact that the detenue was already in custody in a substantive offence, observed as under: “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. 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.” 17. From the discussion of the aforesaid law on the subject, it is clear that though a person who is already booked in a criminal case can be taken into preventive custody yet for doing so, there must be compelling reasons. 18. Coming to the case on hand, it is apparent from the record; a. That the detenue had been arrested for the commission of a substantive offence punishable under section 15 of the NDPS Act in a case registered vide FIR No. 04/2021, at Police Station Bijbehara; b. That he was released on having been admitted to bail by the court of learned Additional Sessions Judge, Anantnag vide order dated 13.02.2021. c. Senior Superintendent of Police District Anantnag prepared a dossier in respect of detenue based on his solitary involvement in the commission of aforementioned offence and suggesting for his preventive detention under the provisions of the J&K Public Safety Act, 1978. d. Detaining Authority in the grounds of detention stated that it has become imperative to deal with the detenue under J&K PS Act-1978. e. Detaining Authority vide impugned order in the month of September, 2021, ordered preventive detention of the detenue in terms of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988, for a period to be specified by the Government/Advisory Board. 19. e. Detaining Authority vide impugned order in the month of September, 2021, ordered preventive detention of the detenue in terms of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988, for a period to be specified by the Government/Advisory Board. 19. Detention record shows that the detenue was arrested in FIR No.04/2021 for offence under Section 8/15 NDPS Act of P/S Bijbehara. So far as the grounds of detention are concerned, the same are based upon the solitary incident which is the subject matter of aforesaid FIR. There was no material on record excepting the allegations made in the afore-noted FIR before the Detaining Authority which would have compelled it to pass the impugned detention order against the petitioner who was already booked for commission of a substantive offence. 20. The observations of the Supreme Court made in paragraph No.15 of the judgment in the case of Adishwar Jain v. Union of India and another, (2006) 11 SCC 339 are noteworthy and are reproduced hereunder:- “15. Delay, as is well known, at both stages has to be explained. The court is required to consider the question having regard to the overall picture. We may notice that in SK. Serajul v. State of West Bengal [ (1975) 2 SCC 78 ], this Court opined: “There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate, Burdwan recited in the order of detention. It would be reasonable to assume that if the District Magistrate of Burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities...” 21. From the judgment aforesaid, more particularly the observations made in paragraph No.15, it is abundantly clear that the delay at both stages has to be explained and unless this delay is satisfactorily explained, it will throw considerable doubt on the genuineness of the subjective satisfaction derived by the Detaining Authority. From the judgment aforesaid, more particularly the observations made in paragraph No.15, it is abundantly clear that the delay at both stages has to be explained and unless this delay is satisfactorily explained, it will throw considerable doubt on the genuineness of the subjective satisfaction derived by the Detaining Authority. Delay, whether it is in making the detention order or it pertains to its execution, both are required to be satisfactorily explained. To the similar effect is the legal position summed up in para 11 of the judgment in KPM Basheer [ (1975) 2 SCC 78 ]. For ready reference, para 11 of the judgment is reproduced hereunder:- “11. Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link’ between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him. As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone we are not dealing with other contentions raised in the Memorandum of Appeal as well as in the writ petition.” 22. Impugned detention order has been based by the Detaining Authority by showing the detenu as an active member of some organized gang involved in the illicit traffic of narcotics. There is, however, no such record/proof in support of such claim, except the solitary alleged involvement in one of the case. Such an eventuality can be taken care of by the substantive laws on the subject instead of resorting to preventative law. 23. Having regard to the discussion made hereinabove and the legal and factual circumstances of the case, the impugned order is held to be not sustainable and liable to be quashed. Resultantly, the petition is allowed and the order of detention bearing No. DIVCOM-“K”/165/2021 dated 10-09/2021, issued by the Divisional Commissioner, Kashmir, is quashed. Detenue is directed to be released from the preventive custody provided he is not required in connection with any other case. 24. Petition is disposed of as granted.