High Court Of Jammu & Kashmir And ... vs U.T Of J&K And Another
2023 Latest Caselaw 580 j&K/2

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT SRINAGAR
                              WP (Crl) No.608/2022
                                                        Reserved on: 11.04.2023
                                                       Pronounced on: 10.05.2023
SHOWKAT AHMAD BHAT                                           ....... Petitioner(s)

                              Through: Mr R. A. Jan, Sr. Advocate with
                                       Mr. Aswad Attar, Advocate.
Versus

U.T of J&K and another

                                                             .....Respondent(s)

                                   Through: Mr Sajad Ashraf, GA vice
                                            Mr. Furqan Sofi, GA.

CORAM:HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                                  JUDGEMENT

1. Instant Habeas Corpus petition has been filed by the father of Showkat Ahmad Bhat, (for short detenue,) seeking quashment of detention order No. 59/DMP/PSA/22 dated 25.06.2022 (for short detention order) passed by the respondent No. 2-District Magistrate, Pulwama (Detaining Authority), whereby the said Showkat Ahmad Bhat, son of Gh. Hassan Bhat resident of Wahibugh Tehsil and District Pulwama, has been taken into preventive custody by invoking the powers under Section 8 of the J&K Public Safety Act, 1978 and directed to be lodged in Central Jail (Kotbalwal), Jammu,

2. The challenge to the impugned detention order is made on many grounds such as;

(i) That the detenue came to be detained in terms of detention order No. 26/DMP/PSA/22 dated 09.09.2020, passed by the Detaining Authority and was lodged in Central Jail Kotbalwal Jammu, that was challenged by the petitioner in WP (Crl) No. 143 of 2020, which was ultimately quashed by this Court vide order dated 01.03.2021.

(ii) In compliance to the judgment the detenue was released from the preventive custody but within a short span of time has again been

WP (Crl) no.608

detained by virtue of detention order impugned in the instant petition.

(iii) The grounds of detention on which the detenue has been detained pursuant to the impugned order were in fact also the grounds that constituted the basis of the earlier detention order, copy whereof is annexed with this petition as annexure-III.

(iv) That the impugned detention order being passed on the same grounds that formed the basis of the earlier detention is vitiated in law and, thus, rendered void, ab-intio and non-est in law.

(v) That the impugned detention order has been passed on the grounds that have already been nullified by this Court earlier by issuance of a writ of Habeas Corpus.

(vi) That the grounds of detention order reflect that the Detaining Authority was not aware of the relevant material and the facts while passing impugned detention order.

3. I have heard learned senior counsel, Mr. R. A. Jan, for the petitioner

and Mr. Sajad Ashraf, learned GA for respondents. I have perused the

detention record produced by learned counsel for respondents and

considered the matter.

4. Learned senior counsel for petitioner while arguing the matter mainly

laid thrust on the point that the allegations and the grounds pressed into

service have already been made use of by the Detaining Authority in

the earlier detention order, i.e., order No. 26/DMP/PSA/20 dated

09.09.2020, which was quashed by this Court vide judgement dated

01.03.2021, forming annexure II to the petition. The learned senior

counsel also submitted that the Detaining Authority while issuing

impugned detention order has not even made a whisper qua earlier

detention order which reflects the unawareness of the the Detaining

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Authority and as a consequence the impugned detention order is

rendered illegal.

5. Learned counsel for respondents submits that the detention order has been

passed on subjective satisfaction by the Detaining Authority and detention

order is in accordance with law and, there is no violation or infringement

of rights of the detenue, guaranteed under the Constitution of India. Hence,

he pleads that petition be dismissed.

6. It may be noticed here that this Court, in earlier petition, i.e, WP (Crl)

No.143/2020 had quashed the detention order, bearing No.26/DMP/

PSA/20 dated 09.09.2020. The same grounds, on the basis of which the

earlier detention order was made, could not have formed a ground for

making a fresh detention order.

7. In this view, I am fortified by a three Judge judgement of the Supreme Court rendered in the case of Ibrahim Bachu Bafan v. State of Gujarat (1985) 2 SCC 24, wherein, their Lordships in paragraph 10 have held as under:

"...The power conferred under clauses (a) and (b) of sub-section (1) of Section 11 is in fact extension of the power recognized under Section 21 of the General Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of Section 11 (1) of the Act are also entitled to exercise the power of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a high prerogative writ like habeas corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by Section 11(1) of the Act, the other is not known to the statute and is exercised by an authority beyond the purview of sub-section (1) of Section 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, sub-section (2) of Section 11 is not applicable and the detaining authority is not entitled to make another order under Section 3 of the Act on the same grounds".

8. The authoritative judicial pronouncements on the subject are that even if

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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

detention order. When a detention order is quashed by the Court by issuing

a high prerogative writ, like Habeas Corpus or certiorari, the grounds of

said detention order should not be taken into consideration either as a

whole or in part even along with fresh grounds of detention for drawing

requisite subjective satisfaction to pass a fresh detention order because

once the Court strikes down an earlier order by virtue of a writ, it nullifies

the entire order. It is, therefore, clear that an order of detention cannot be

made after considering previous grounds of detention when the same have

been quashed by the Court, and if such grounds of detention are taken into

consideration while forming subjective satisfaction by the Detaining

Authority in making a fresh detention order, the order of detention will be

vitiated. It is of no consequence if further fresh facts, disclosed in the

grounds of impugned detention order, have been considered. Reference in

this regard may be made to judgments rendered in the cases of Chhagan

Bhagwan Kahar v. N. L. Kalna and others, AIR 1989 SC 1234 and

Ramesh v. State of Gujarat AIR 1989 SC 1881. The Detention order,

impugned herein, is, thus, liable to be quashed as the grounds of detention

pressed into service by the respondent no.2 while passing earlier detention

order, which were subsequently quashed by this Court, have been again

put into service.

9. For the foregoing reasons, this Habeas Corpus petition is allowed and the

detention Order No. 59/DMP/PSA/22 dated 25.06.2022, passed by the

District Magistrate, Pulwama, is quashed. Respondents, including Jail

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Superintendent concerned, are directed to release the detenue forthwith,

provided he is not required in any other case. Disposed of.

10.Registry to return the detention record to learned counsel for respondents

against proper receipt.

(MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 10.08.2023 Abdul Rashid, PS Whether the order is reportable: Yes/No.