Ubaid Rashid Mir vs U.T Of J&K & Ors
2021 Latest Caselaw 283 j&K/2

S.No.206
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                   HIGH COURT OF JAMMU AND KASHMIR
                             AT SRINAGAR.
                                *******
                                WP ( Crl ) No.103/2020
                                C/w WP ( Crl) No.220/2019


                                                        Reserved on:01.03.2021
                                                        Pronounced on:


Ubaid Rashid Mir
                                                         ...Petitioner(s)

               Through: Mr.Saqib Amin Parray, Advocate.

                                         Vs

U.T of J&K & Ors
                                                            ...Respondent(s)

               Through: Mr. M.A .Chashoo, AAG
CORAM:
               Hon'ble Mr. Justice, Rajnesh Oswal, Judge.

                           ORDER

01. The present petition has been filed by the detenu through his father for

quashing of order of detention bearing No. 69/DMS/PSA/2020 dated

01.07.2020 issued by respondent no.2 under J&K Public Safety Act.

02. The order of detention i.e the order impugned has been assailed by the

detenu on the ground that the first order of detention was passed on

25.08.2018 that was quashed by this court on 04.12.2018 passed in HCP

No.248/2018. Thereafter, another order of detention was issued on

25.06.2019 i.e the subject matter of the HCP No.220/2019 and after expiry

of the said detention order respondents have issued yet another detention order

on 01.07.2020 and the grounds of detention are replica of grounds of earlier

detention order. It is further stated that the FIR on the basis of which the

detention order has been passed, include FIR pertaining the year 2012 when

the detenu was minor besides this the detention order has been assailed on the ground that no material has been supplied to the detenu on the basis of which

respondent no.2 has issued detention order, as such, the detenu has been

deprived of his right to make effective representation. It is further urged that

no fresh grounds have been demonstrated by the detaining authority

necessitating the issuance of fresh detention order. The grounds of detention

are vague and ambiguous and pertaining to the period from 2012 to 2018 and

the grounds on the basis of which the detention order has been issued are

stale.

03. Response stands filed by the respondent no.2 in which it has been stated

that all the procedural requirements and safeguards guaranteed to the detenu

as envisaged under Article 22 ( 5) of the Constitution of India and Section

13 of the J&K Public Safety Act, 1978 have been followed, as such, there

is no infirmity in the order of detention and it is further stated that the case of

the detenu was examined by the Advisory Board. It is only after the opinion

of the Advisory Board, the order or detention has been confirmed by the

Government. It is further stated that in compliance to the detention order

warrant was executed by Mushtaq Ahmad SI of P/S Shopian. Detenu was

handed over to Assistant Superintendent Central Jail, Srinagar for lodgment.

The contents of the detention order/ warrant and the grounds of detention

were read over and explained to detenu in the language which he fully

understood and in lieu whereof, the detenu appended his signature on the

execution report /order. The detenu was also informed about his right to

make representation to the detaining authority or to the government against

his detention. It is further stated that the detenu has read upto 10 th class and

can understand Urdu and Kashmiri language. Accordingly, |grounds of

detention were explained to him in the same language.

04. Heard Mr.Saqib Amin Parray, learned counsel for the detenu. He has laid

much stress on the point that no fresh order could have been passed by

respondent no.2 particularly when earlier detention order was quashed by

this court and that the second detention order was subject matter of the writ

petition pending in this court and he has also vehemently argued that the

grounds on which the detention order was passed to pertain to the period

when the detenu was minor.

05. On the contrary Mr.M.A.Chashoo, Sr.AAG, submits that respondents have

followed all the constitutional as well as statutory provisions while passing

the order of detention. And that the detenu has not chosen to make any

representation against the order of his detention.

06. Heard learned counsel for the parties and perused the detention record.

07. One of the star grounds raised by the detenu is that the order of detention

could not have been issued without there being fresh facts pertaining to illegal

activities of the detenu. So far as the quashing of the first detention order

dated 25.06.2019 by respondent no.2, is concerned, it has not been disputed

by the respondents. Perusal of the judgment dated 04.12.2018 reveals that the

said order of detention was quashed on the ground that the detenu was already

in custody at the time of passing the order of detention and the said

judgment was never challenged by the respondents and obviously the same

has attained finality. The second order of detention dated 25.06.2019 was also

the subject matter of the writ petition bearing WP No. 220/20219 that is also

clubbed with the present writ petition. Perusal of the grounds of detention that

form the subject matter of the WP No.220/2019 reveals that grounds of

detention impugned in the present writ petition are replica of the earlier

grounds of detention and there is no whisper in the grounds of detention that

the petitioner has ever indulged in any illegal activity after expiry of earlier detention order. And rightly so, because the detenu has been in continuous

custody since 2019.

08. The Hon'ble Apex Court has held in case titled Chhagan Bhagwan

Kehahar vs N.L.Kalna & others reported in AIR 1989 SC page 1234 para

12, 13 and 14 which read 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 alongwith 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.

13. In the present case, no doubt, the order of detention contains fresh facts. In addition to that the detaining authority has referred to the earlier detention order and the judgment of the High Court quashing it, presumably for the purpose of showing that the detenu in spite of earlier detention order was continuing his bootlegging activities. But what the detaining authority says clearly in paragraph 9 of his affidavit in reply is that he took into consideration the previous grounds of detention also for his conclusion that the detenu 'was engaged in bootlegging activities since long'. In other words the detaining authority has taken into consideration the earlier grounds of detention which grounds had been nullified by the High Court in Special Criminal Application No. 46 of 1987 by issuing prerogative writ of habeas corpus.

14. Under Section 15 of the Act, the expiry or revocation of an earlier detention order is not a bar for making a subsequent detention order under Section 3 against the same person. The proviso annexed to that Section states that in a case where no fresh facts have arisen after expiry or revocation of an earlier order made against such person the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case extend beyond the period of 12 months from the date of detention under the earlier order. Chinnappa Reddy, J. in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha and Anr. MANU/SC/0087/1987 : 1987CriLJ700 speaking for the bench of this Court while dealing with Section 15 of the Act observed:

It, therefore, becomes imperative to read down Section 15 of the Gujarat Prevention of Anti-Social Activities Act, 1985 which provides for the making of successive orders of detention so as to bring it in conformity with Article 22(4) of the Constitution. If there is to be a collision between Article 22(4) of the Constitution and Section 15 of the Act, Section 15 has to yield. But by reading down the provision, the collision may be avoided and Section 15 may be sustained."

08. Thus from the law laid down by the Hon'ble Apex Court , it is clear that

when the earlier detention order has expired or has also been revoked by the

Government, subsequent detention order can not be issued on the similar grounds

on the basis of which earlier detention order was passed. So on this ground only, the detention order deserves to be quashed. As such, there is no need to consider

the other issues raised by the detenu.

09. In view of the above, the respondents are directed to release the detenu from

the preventive detention forthwith, in case, his custody is not required in any

other case or offence.

10. The writ petition is, accordingly disposed of.

11. WP ( crl) No.220/2019 is also disposed of as having been rendered

infructuous.

(Rajnesh Oswal ) Judge.

Srinagar.

.2021 "Nuzhat, Secy."