Jammu & Kashmir High Court - Srinagar Bench
Syed Imtiyaz Hyder vs State Of J&K And Another on 30 June, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on 01.06.2021
Pronounced on 30.06.2021
WP(Crl.) No. 474/2019
Syed Imtiyaz Hyder ...Petitioner/Applicant(s)
Through :- Mr. Bashir Ahmad Tak, Advocate
v/s
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State of J&K and another
't
.....Respondent (s)
Through :- Mr. Mir Suhail, AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. Through the medium of this petition filed through his son, the petitioner
has questioned the order of detention bearing No. DMB/PSA/31 of 2019
dated 29.07.2019 issued by the respondent No. 2, by virtue of which the
petitioner has been ordered to be detained under the Jammu and Kashmir
Public Safety Act, 1978 (for short, the Act).
2. It is stated in the petition that the petitioner was initially arrested on
10.03.2019 by the SOG/Police of Police Station, Budgam and was
falsely implicated in FIR bearing No. 96/2017 for commission of
offences under Sections 147, 148, 149, 336, 427, 341, 332 RPC and
during his continuation of arrest in the above mentioned FIR, the
petitioner was detained under the Act, vide order dated 16.03.2019. The
said order of detention was impugned by the petitioner through the
medium of writ petition bearing No. 117/2019 and the said order was
quashed by virtue of judgment dated 12.07.2019. It is further stated that
the petitioner was not released and the respondents passed yet another
detention order, which is the order impugned in the instant petition. The
petitioner has questioned the impugned order of detention inter alia on
the grounds that the constitutional as well as procedural safeguards as
envisaged under the Constitution of India as well as under the Act have
not been complied with by the Detaining Authority while passing the
order of detention. The order of detention was neither referred to the
Advisory Board nor was approved within the stipulated time. No
material that has been relied upon by the Detaining Authority has been
furnished to the petitioner thereby depriving the petitioner of his
valuable right of making effective representation against preventive
detention. The order of detention has been passed after a gap of 15
months, as such, the order of detention has been passed on stale grounds.
The petitioner has also placed on record earlier order of detention along
with grounds of detention.
3. The respondents have filed the response, in which they have stated that
the petitioner has been detained pursuant to the order of detention passed
by the respondent No. 2 and while doing so the procedural as well as
statutory safeguards enshrined under Article 22(5) of the Constitution of
India and Section 13 of the Act have been complied with by the
respondents. They have further stated that they have supplied all the
requisite documents to the petitioner so as to enable him to make an
effective representation to the detaining authority and to the
Government. The order of detention was executed on 31.07.2019 by the
Executive Officer, ASI Bashir Ahmed and the petitioner was handed
over to the Superintendent of District Jail Jammu for lodgment. The
contents of the detention order/warrant and the grounds of detention
were read over and were explained to the petitioner in the language
which he fully understood and the petitioner was also informed of his
right to make an effective representation to the Detaining Authority. The
case of the petitioner was referred to the Advisory Board for its opinion
and after the receipt of the opinion of the Advisory Board, the
Government vide order No. Home/PB-V/1950 of 2019 dated 19.09.2019
has confirmed the order of detention dated 29.07.2019. It is further stated
that the petitioner has been found involved in FIR No. 263/2009 for
commission of offences under sections 147 and 148 RPC and 13
ULA(P) Act of Police Station, Budgam, FIR bearing No. 306/2010 for
commission of offences under sections 147, 148, 149, 188, 307, 436, 332
and 427 RPC of Police Station, Budgam, FIR bearing No. 403/2010 for
commission of offences under sections 147, 148, 149, 188, 336 and 427
RPC of Police Station, Budgam, FIR bearing No. 406/2010 for
commission of offences under sections 307, 392, 436, 147, 148, 149,
188, 332, 120 and 342, RPC of Police Station, Budgam, FIR bearing No.
407/2010 for commission of offences under sections 302, 307, 148, 149,
188, 120-B, 121, 436, 511, 336 and 427 RPC of Police Station, Budgam,
FIR bearing No. 38/2013 for commission of offences under sections 147,
148, 188, 336 and 427 RPC of Police Station, Budgam, FIR bearing No.
96/2017 for commission of offences under sections 147, 148, 149, 336,
427, 343 and 332 RPC of Police Station, Budgam and FIR bearing No.
69/2018 for commission of offences under sections 147, 148, 149, 332,
336, 427 and 307 RPC of Police Station, Budgam and on account of
above said facts and circumstances, the Detaining Authority found it
necessary to detain the petitioner under the Act.
4. Respondents have produced the soft copy of the detention record.
5. Mr. B. A. Tak, learned counsel for the petitioner has vehemently argued
that as the subsequent order of detention has been passed substantially
on the same grounds on the basis of which the earlier detention order
was passed, as such, the order of detention is bad in law.
6. On the contrary, Mr. Mir Suhail, learned Additional Advocate General
appearing for the respondents has vehemently argued that all the
documents have been served upon the petitioner. Mr. Suhail has also
argued that the detention order is legal and all procedural and statutory
safeguards have been complied with while passing the order of
detention, as such, the order of detention is sustainable in the eyes of
law.
7. Heard and perused the detention record meticulously.
8. From perusal of both grounds of detention it transpires that the order
impugned has been passed on the similar grounds as narrated in the
earlier grounds of detention on the basis of which the earlier order of
detention was passed except FIR bearing No. 69/2018. Perusal of FIR
bearing No. 69/2018 as narrated in the grounds of detention reveals that
on 03.04.2018, an unruly mob appeared at Hyderpora near JK Bank
Building equipped with bricks and stones, blocked the road and attacked
the Police party with the intention to kill them and during stone pelting,
some security personnel got injured. During investigation the petitioner
was found involved in the said case. It is mentionable here that the said
incident pertains to the month of April, 2018, whereas the earlier
detention order was passed on 16.03.2019 meaning thereby that on the
basis of said FIR, the petitioner was not ordered to be detained earlier.
The grounds of detention of the earlier detention order have been taken
into consideration while passing the impugned order of detention by the
Detaining Authority. The same grounds could not have been relied upon
by the respondents for issuance the fresh detention order. The law is well
settled that if the order of detention comes to an end either by revocation
or by the expiry of the period of order of detention, there must be fresh
facts for passing a subsequent order of detention. When the detention
order has been quashed by the court, the grounds of said order are not to
be taken into consideration either as a whole or in part even along with
the fresh grounds of detention in order to pass a fresh detention order and
if such previous grounds of detention are taken into consideration while
passing a fresh detention order, the order of detention will be vitiated.
9. Reliance is placed upon the decision of the Apex Court in Chhagan
Bhagwan Kahar v. N.L. Kalna, reported in (1989) 2 SCC 318 and the
relevant para is reproduced 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.''
(See also Ramesh v. State of Gujarat, reported in (1989) 4 SCC 124 )
10. Another aspect that requires consideration is that the order impugned
dated 29.07.2019 has been passed on the premises that the petitioner is
mobilizing the youth of the locality to disrupt the upcoming
parliamentary elections where as the perusal of the order dated
12.07.2019 passed by the Court whereby the earlier order of detention
was quashed, reveals that the court has observed that the parliamentary
elections are already over. Mentioning the said fact again in the
subsequent order of detention by the respondent No. 2 that detention of
the petitioner is necessary for upcoming elections is the clear non-
application of mind in view of the fact that the elections were already
over by the time order impugned was passed.
11. In view of the above, this petition is allowed. Detention order No.
01/DMB/PSA/31 of 2019 dated 29.07.2019 is quashed. Petitioner
(detenue) be set free from the preventive custody, provided he is not
required in any other case.
(RAJNESH OSWAL)
JUDGE
Srinagar:
30.06.2021
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
