Javaid Ahmad Munshi vs Ut Of J&K & Another
2021 Latest Caselaw 114 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                                                        Reserved on: 02.02.2021
                                                                      Pronounced on: 15.02.2021

                                                                           WP(Crl) No.651/2019

                      Javaid Ahmad Munshi                                        ...Petitioner(s)

                                           Through: - Mr. N. A. Ronga, Advocate.

                      Vs.

                      UT of J&K & another                                     ...Respondent(s)
                                           Through: - Mr. B. A. Dar, Sr. AAG, with Ms. Saba
                                                      Gulzar, Asstt. Counsel.


                      CORAM:         HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.

                                                         JUDGMENT

1) Javaid Ahmad Munshi (the detenue), has filed this petition

through his brother, namely, Parvaiz Ahmad Munshi, seeking a Writ of

Habeas Corpus for quashing the detention order bearing No.

DMS/PSA/136/2019 dated 22.11.2019, passed by District Magistrate,

Srinagar (the detaining authority) with a view to prevent him from acting

in any manner prejudicial to the security of the State. The order is,

purportedly, passed by the detaining authority in exercise of powers

conferred under Section 8 of the J&K Public Safety Act, 1978 (the Act

of 1978),

2) The impugned order has been assailed by the petitioner, inter alia,

on the following grounds:

(I) That previously the detenue was placed under preventive MOHAMMAD ALTAF BHAT 2021.02.16 11:06 I attest to the accuracy and detention in the year 2018 and his detention was quashed by integrity of this document

this Court vide judgment dated 28.12.2018 passed. Without

there being any fresh material or grounds, the impugned

detention order has been passed by the detaining authority

on the same grounds which were subject matter of earlier

petition;

(II) That the detenue was not furnished the grounds of detention

and the material in support thereof;

3) The respondents, despite availing number of opportunities, have

neither filed counter affidavit nor have chosen to produce the detention

record.

4) I have heard learned counsel for the parties and perused the

material available on record.

5) So far as the first ground urged by the learned counsel for the

petitioner is concerned, the petitioner has placed on record a copy of the

judgment dated 28.12.2018 passed by this Court in HCP No.234/2018,

along with a copy of the grounds of detention which were subject matter

of said petition. A perusal of the grounds of detention which are subject

matter of instant petition and the grounds of detention which were

subject matter of earlier detention reveals that they are identical and, in

fact, Xerox copies of each other. The grounds of detention which have

formed the basis of the impugned detention order reveals that not a

single fresh act or omission on the part of the detenue has been cited in

the said document.

MOHAMMAD ALTAF BHAT 2021.02.16 11:06 I attest to the accuracy and integrity of this document

6) The Supreme Court in the case of Chhagan Bhagwan Kahar Vs.

N. L. Kalna and others, (1989) 2 SCC 318, while dealing with similar

question, has observed as under:

"12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention, there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari, the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order.

7) Again in the case of Jahangir Khan Fazal Khan Pathan Vs. The

Police Commissioner, Ahmadabad and another, (1989) 3 SCC 590, the

Supreme Court has held as under:

"......It is, therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered."

MOHAMMAD ALTAF BHAT 2021.02.16 11:06 I attest to the accuracy and integrity of this document

8) From the aforesaid enunciation of law on the subject, it is clear

that unless there are fresh grounds of detention, a person cannot be put

under preventive detention on the basis of the grounds of detention

which have formed basis of an earlier detention order that has been

quashed by a Court. The ratio laid down by the Supreme Court in the

afore cited two cases squarely applies to the facts of the instant case and,

therefore, the impugned order of detention cannot be sustained in the

eyes of law.

9) The second ground urged by the petitioner is that he has not been

supplied with the material forming basis of the grounds of detention.

Since there is no rebuttal to this allegation of the petitioner as the

respondents have failed to file any counter affidavit or produce the

detention record, as such, the same is deemed to have been admitted.

10) It needs no emphasis that the detenue cannot be expected to make

an effective and purposeful representation which is his constitutional and

statutory right guaranteed under Article 22(5) of the Constitution of

India, unless and until the material, on which detention is based, is

supplied to the detenue. The failure on the part of detaining authority to

supply the material renders detention order illegal and unsustainable.

While holding so, I am fortified by the judgments rendered in Dhananjoy

Dass v. District Magistrate,(AIR 1982 SC 1315), Sophia Ghulam Mohd.

Bham V. State of Maharashtra and others (AIR 1999 SC 3051) and,

Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009

SC 2184).

MOHAMMAD ALTAF BHAT 2021.02.16 11:06 I attest to the accuracy and integrity of this document

11) In view of aforesaid discussion, it is clear that the respondents

have failed to observe the mandatory constitutional and statutory

safeguards in the case of the petitioner and, as such, the impugned order

of detention cannot be sustained in law.

12) For the foregoing reason, this petition is allowed. The impugned

order of detention is quashed. Direction is issued to the respondents to

release the detenue from the preventive custody forthwith, provided he is

not required in connection with any other case.

(Sanjay Dhar) Judge Srinagar 15.02.2021 "Bhat Altaf, PS"

                                     Whether the order is speaking:        Yes/No
                                     Whether the order is reportable:      Yes/No




MOHAMMAD ALTAF BHAT
2021.02.16 11:06
I attest to the accuracy and
integrity of this document