Jammu & Kashmir High Court - Srinagar Bench

Wp(Crl) No. 321/202 vs Union Territory Of J&K & Anr on 18 May, 2022

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                         WP(Crl) No. 321/2021
                                             Reserved on: 28.04.2022
                                             Pronounced on: 18.05.2022
Sajad Ahmad Bhat

                                                  ...Petitioner(s)

           Through: Mr. M.A.Qayoom, Advocate.

                               Vs.
Union Territory of J&K & Anr.
                                                    ...Respondent(s)

           Through: Mr. Satinder Singh Kala, AAG.


CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                             JUDGMENT

1. Through the medium of the instant petition, the petitioner has

questioned the order of detention bearing No. DMB/PSA/12/2021 dated

07.12.2021 issued by District Magistrate, Budgam - respondent No. 2

(for short 'Detaining authority') by virtue of which the petitioner (for

short 'the detenue') has been ordered to be detained under the Jammu &

Kashmir Public Safety Act, 1978 (for short 'the Act').

2. It is stated in the petition that the detenue was initially arrested by the

police and was falsely implicated in FIR No. 111/2017 registered at

Police Station, Magam for the commission of offences punishable under

Sections 302, 307 RPC and 2/3 PASSA. He was already bailed out in

this case but was not released. During his continuation of arrest in the

above mentioned FIR, the detenue was detained under the Act vide

Detention Order No. DMB/PSA/02 of 2020 dated 27.01.2020. The said

order of detention was challenged by the detenue through the medium Page |2

of writ petition bearing WP(Crl) No. 30/2020 and the said order was

quashed by this Court by virtue of the judgment dated 28.05.2021. It is

further stated that the detenue was not released and the respondents

passed another detention order, impugned in the instant petition.

Further, it is stated that the detenue had filed representation against his

detention but the same was not considered by the authorities.

3. The detenue 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 detenue thereby depriving him of his valuable right of

making effective representation against preventive detention. The order

of detention has been passed after elapse of long period, as such, the

order of detention has been passed on stale grounds. The detenue has

also placed on record earlier order of detention along-with grounds of

detention.

4. Respondents have filed their response, in which they have stated that

the detenue has been detained pursuant to the order of detention passed

by the detaining authority 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 fully complied with by the

respondents. They have further stated that all the requisite documents

have been supplied to the detenue so as to enable him to make an

effective representation to the Detaining Authority and to the Page |3

Government. The order of detention was executed and the detenue was

taken into preventive custody after the contents of the detention

order/warrant and the grounds of detention were read over and

explained to him in the language which he fully understood and the

detenue was also informed of his right to make an effective

representation to the Detaining Authority. The Detaining Authority

found it necessary to detain the detenue under the Act.

5. Respondents have produced the copy of the detention record.

6. Heard and perused the detention record.

7. Learned counsel for the detenue, besides agitating all the grounds, 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.

8. On the contrary, learned GA appearing for the respondents, contended

that all the documents have been served upon the detenue. He has also

contended 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.

9. From the perusal of grounds of detention in both the detention orders, 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; only sequence of

incidents has been altered. During the investigation in FIR No.

111/2017 registered at Police Station Magam, the detenue was arrested

along-with his associate and on questioning, he was found involved in Page |4

lobbing of grenade on CRPF/Police personnel at Kanihama Batpora

Crossing, which was handed over to him by one Yousuf Dar @ Kantroo

for carrying out the terrorist activities in the area. It is worth to mention

here that the said incident occurs in the year 2017, whereas the earlier

detention order was passed on 27.01.2020, meaning thereby that on the

basis of said FIR, the detenue was not ordered to be detained earlier.

The grounds of detention of the earlier detention order have been taken

into consideration while passing the present impugned order of

detention by the Detaining Authority. The same grounds could not have

been relied upon by the respondents for issuance of fresh detention

order.

10. 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 detention 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.

11. In the judgment rendered in case 'Chhagan Bagwan Kahar v. N.L.

Kalna, reported as (1989) 2 SCC 318', the Hon'ble Apex Court has

discussed the above issue meticulously, relevant Para of which 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 Page |5

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.''

12. Again in the case '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."

13.Another aspect that requires consideration is that the detenue had filed

the representation against his detention on 17.12.2021 to the Detaining

authority, as is evident from the receipt on the copy of the same, and the

same has not been considered by the respondents till date, inasmuch as,

there is no mention with regard to the said representation filed by the

detenue, either in the reply affidavit or in the detention record. As such,

this Court is left with no option but to accept the stand of the detenue

that he has moved representation against his detention, but the same has

not been considered.

14. Hon'ble Supreme Court in the case "Tara Chand vs State of

Rajasthan & Ors., 1980 (2) SCC 321" has held that any inordinate and Page |6

unexplained delay on the part of the Government in considering the