Mushtaq Ahmad Wani vs Ut Of J&K & Another
2021 Latest Caselaw 259 j&K/2

                               IN THE HIGH COURT OF JAMMU AND KASHMIR
                                             AT SRINAGAR

                                                            Reserved on: 16.02.2021
                                                          Pronounced on:02.03.2021

                                                               WP(Crl) No.100/2020

                        Mushtaq Ahmad Wani                           ...Petitioner(s)

                                     Through: -Mr. Manzoor A. Ganai, Advocate.

                        Vs.

                        UT of J&K & another                        ...Respondent(s)

                                Through: -      Mr. B. A. Dar, Sr. AAG.


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

                                                    JUDGMENT

1) Through the medium of instant petition veracity and

legality of the detention order bearing No.03/DMA/PSA/

DET/2020 dated 07.07.2020, passed by District

Magistrate, Anantnag (the detaining authority) is assailed.

In terms of the impugned detention order, Mushtaq

Ahmad Wani @ Channa S/o Gh. Hassan Wani R/o Soaf

Shali, Kokernag District Anantnag (the detenue) has been

placed under preventive detention with a view to prevent

him from acting in any manner prejudicial to the

maintenance of public. 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).

MOHAMMAD ALTAF BHAT 2021.03.03 11:14 I attest to the accuracy and integrity of this document

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 detention in the year 2019 pursuant

to order dated 12.03.2019 which expired in

the year 2020 and without there being any

fresh material or grounds, the impugned

detention order has been passed by the

detaining authority on the same grounds which

formed basis of the earlier detention order,

(II) That there has been non-application of mind on

the part of the detaining authority as the

detenue has already been admitted to bail in

FIR No.103/2017 but this fact has nowhere

been mentioned in the grounds of detention.

3) On being put to notice, the respondents appeared

through their counsel and filed their reply affidavit,

wherein it is submitted that detention was necessitated

because of involvement of the detenue in very serious

offences against the State as mentioned in the FIRs

registered against him. The detenue was informed that he

can make a representation to the government as well as

the detaining authority against his detention. It is further MOHAMMAD ALTAF BHAT 2021.03.03 11:14 I attest to the accuracy and integrity of this document

claimed in the reply affidavit that all statutory

requirements and constitutional guarantees have been

fulfilled and complied with by the detaining authority. The

order has been issued validly and legally. The respondents

have placed reliance on the judgment of the Supreme

Court in Haradhan Saha v. State of W.B (1975) 3 SCC

198. The respondents have not, however, chosen to

produce the detention record to lend support to the stand

taken in the counter affidavit.

4) I have heard learned counsel for the parties and

perused the material available on record.

5) So far as the first and the only ground urged by the

learned counsel for the petitioner is concerned, the

petitioner has placed on record a copy of the detention

order No.80/DMA/PSA/DET/2018 dated 12.03.2019

along with copy of the grounds of detention on the basis of

which said detention order was passed. 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 order reveals that they are

identical and, in fact, more or less Xerox copies of each

other. The grounds of detention which have formed the

basis of the impugned detention order reveal that not a

MOHAMMAD ALTAF BHAT 2021.03.03 11:14 I attest to the accuracy and integrity of this document

single fresh act or omission on the part of the detenue has

been cited in the said 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 MOHAMMAD ALTAF BHAT 2021.03.03 11:14 the subjective satisfaction by the I attest to the accuracy and integrity of this document

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."

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 either expired or 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) 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 02.03.2021 "Bhat Altaf, PS"

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No MOHAMMAD ALTAF BHAT 2021.03.03 11:14 I attest to the accuracy and integrity of this document