Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ashraf Wani vs Union Territory Of J&K And Others on 10 October, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 3
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 120/2024
Mohammad Ashraf Wani ...Petitioner(s)
Through: Mr. Sheikh Umar Farooq, Advocate.
Vs.
Union Territory of J&K and Others ...Respondent(s)
Through: Mr. Ilyas Nazir Laway, GA.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
10.10.2024
(ORAL)
1. Impugned in the instant petition filed under Article 226 of the
Constitution is detention order No.02/DMA/PSA/DET/2023 dated
23.11.2023 (for short the impugned order) passed by respondent 2
herein (for short the detaining authority) against the petitioner herein
under and in terms of the provisions of the J&K Public Safety Act,
1978, (for short the Act of 1978).
2. The petitioner has challenged the impugned order in the instant
petition on multiple grounds.
3. Counter affidavit has been filed by the respondents in response to the
petition wherein the petition is being opposed on the premise that on
account of activities being against the security of the State, detaining
authority after examining the dossier and other material furnished to it
by the sponsoring agency came to be satisfied that the detention of
detenue under preventive detention is necessitated and consequently
while passing the detention order complied with all statutory
requirements and constitutional guarantees.
Heard counsel for the parties and perused the record.
4. According to counsel for the petitioner the detaining authority while
detaining the detenue in terms of the impugned order has shown its
complete lack of awareness and in the process non-application of
mind about the fact that detenue previously had been detained under
the preventive detention in terms of order dated 10.04.2022 almost on
similar grounds on which the impugned order has been passed and
that said earlier order of detention upon being thrown challenge to by
the petitioner herein came to be quashed by this court in terms of
judgement dated 09.05.2023 passed in WP(Crl) 282/2022 and as such,
the impugned order is not legally sustainable more so in view of the
fact that petitioner was not released from the said preventive detention
upon quashment of same by this court, in that, the petitioner was
shown to be involved in case FIR No. 82/2017 for commission of
offences under Sections 302, 397, 326, 427, 120-B RPC read with
Sections 7/27, 16, 18 of the ULA(P) Act, 1968 and after facing trial in
the said case the petitioner came to be acquitted thereof on 27.10.2023
by the competent court, which fact too has not been taken cognizance
of by the detaining authority. Thus, counsel for the petitioner would
insist that the impugned order under these circumstances is not legally
sustainable and is liable to be quashed on this ground alone.
5. On the contrary counsel for the respondents while opposing the
submissions of counsel for the petitioner would contend that the
detaining authority while passing the order under challenge has been
aware of the fact of quashing of the earlier detention of the detenue
however, has not referred in the grounds of detention to the acquittal
of the petitioner in FIR no. 82/2017, earned by the petitioner on
27.10.2023, prior to the passing of the order under challenge and that
non-mentioning of the said fact in the grounds of detention would not
per-se invalidate order under challenge.
6. Insofar as the plea of counsel for the petitioner that the detaining
authority while passing the impugned order has detained the petitioner
almost on similar grounds on which the petitioner was detained earlier
in terms of the detention order dated 10.04.2022 is concerned. The
perusal of the record authenticates the submissions of the counsel for
the petitioner. Law in this regard stands settled by the Apex court, in
case titled as "C. B. Kahar vs. N. L. Kalna" reported in AIR 1989
SC 1234 would be relevant, wherein at para 12 following has been
laid down:-
"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."
Having regard to the aforesaid position of law enunciated by the
Apex court in the judgment supra the impugned order, therefore, is
not legally sustainable on this ground alone.
7. Insofar as the aforesaid next plea raised by counsel for the petitioner
that the petitioner came to be acquitted in FIR no. 82/2017 by the
competent court on 27.10.2023 and that the said fact has not been
taken cognizance of by the detaining authority while detaining the
petitioner in terms of the impugned order is concerned, the said plea
of the counsel for the petitioner upon careful examination on record
available on the file inasmuch as the detention record produced by
counsel for the respondents is even found to be factually correct. The
detaining authority indisputably has remained oblivious to the fact
that the petitioner had been acquitted in the FIR supra on 27.10.2023
i.e. prior to the passing of the impugned order of detention dated
23.11.2023 and such non-awareness also reflects to be complete non-
application of mind on the part of the detaining authority.
8. Viewed thus, for the aforesaid reasons the instant petition deserves to
be allowed and as such is allowed, as a consequence whereof the
impugned order No. 02/DMA/PSA/DET/2023 dated 23.11.2023 is
quashed with a direction to the respondents including the concerned
jail authority to release the petitioner from preventive detention
forthwith unless he is not required in any other case.
9. The detention record produced by counsel for the respondents is
returned back in the open court.
10. Disposed of.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
10.10.2024
Ishaq
Whether the order is speaking? Yes/No
Whether approved for reporting ? Yes/No
