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ii. That the respondent No.2, in terms of communication dated 13.11.2018, has informed the detenu about his detention and has also HCP No.443/2018 MOHAMMAD ALTAF BHAT told him that his detention has been ordered on the grounds specified in the annexure appended thereto and that he may inform the Home Department, as to whether he would like to be heard in person by the Advisory Board. He has also asked him to make a representation to the Govt. in the Home Department or to him against the said detention order, if he so desires. Since in the communication dated 13.11.2017, it is nowhere mentioned as to within how much period of time, the detenu has to file such representation before the Govt. or before the detaining authority which was mandatory on their part to tell him;

HCP No.443/2018 MOHAMMAD ALTAF BHAT In the instant case, after the expiry of the period of detention, the detenu having not been released by the respondents, there was, therefore, no fresh material available with the respondent No.2 for detaining the detenu under the provisions of PSA;

v. That an order of preventive detention is admittedly an invasion on the legal and fundamental rights of a person. Such an order cannot be passed by the detaining authority on his ipse-dixit. When a person has been booked in a substantive offence, he has to be tried under the normal law and if the allegations levelled against him are proved, he can be punished. Preventive law being not a substitute for the normal law, therefore, it cannot be resorted to by the detaining authority to avoid the prosecution of the said person under ordinary law. In the instant case, the respondents having registered 20 cases against the detenu, therefore, they were obliged under law to file the police reports against the detenu before the appropriate court and produced evidence against him so as to sustain the allegations levelled against him. The respondents having not done so and instead they have detained the detenu under the PSA;

vii. That the respondent No.2 has not provided the entire material relied upon by the respondent No.2 for passing the order of detention against the detenu;

viii. That the detenu was in police custody when the order dated 13.11.2018 HCP No.443/2018 MOHAMMAD ALTAF BHAT was passed. It is well settled proposition of law that no order of detention can be passed against a person, who is in police custody, unless there are compelling reasons for doing so, which compelling reasons have to be stated in the grounds of detention or in the order of detention. In the instant case, no compelling reasons have been given by the detaining authority in the order of detention or the grounds of detention;

36. The detention record, as produced, be returned to the learned counsel for the respondents.

(Rashid Ali Dar) Judge Srinagar 16.05.2019 "Bhat Altaf, PS" 

HCP No.443/2018                     MOHAMMAD ALTAF BHAT