Javaid Ahmad Dar vs Union Territory Of J&K And Ors
2024 Latest Caselaw 1646 j&K/2

Citation : 2024 Latest Caselaw 1646 j&K/2
Judgement Date : 29 October, 2024

Jammu & Kashmir High Court - Srinagar Bench

Javaid Ahmad Dar vs Union Territory Of J&K And Ors on 29 October, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                              S. No. 1
 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                              HCP No. 62/2023

Javaid Ahmad Dar                                   ...Petitioner/Appellant(s)

Through: Mr. Syed Sajad Geelani, Advocate.
                                      Vs.

Union Territory of J&K and Ors.                            ...Respondent(s)

Through: Mr. Bikramdeep Singh, Dy.AG with
         Ms. Nowbahar Khan, AC.
CORAM:
        HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
                                  ORDER

29.10.2024 (ORAL)

1. Detention order 02/DMK/PSA/2023 dated 22.06.2023 (for short the impugned order) passed by the respondent 3 herein (for short the detaining authority) against the petitioner under and in terms of the provisions of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act of 1978) has been thrown challenge to by the petitioner herein on multiple grounds urged in the petition.

2. Counter affidavit to the petition has been filed by the respondents wherein the petition is being opposed on the premise that none of the rights of the petitioner have been violated while detaining him under the preventive detention as the petitioner came to be detained in terms of the order under challenge after fulfilling all statutory requirements and complying with the Constitutional guarantees owing to activities reported to the detaining Authority by the sponsoring agency being prejudicial to the security of the State.

Heard counsel for the parties and perused the record.

3. Counsel for the petitioner while making his submissions in line with the contentions raised and grounds urged in the petition would contend that the petitioner had been previously detained by the

respondents under the Act of 1978 in terms of the detention order dated 07.04.2022 which detention order upon being thrown to challenged to by the petitioner in WP(Crl) 326/2022 before this Court came to be quashed on 07.04.2023, which fact has neither been taken cognizance of nor referred either by the sponsoring agency or the detaining authority while passing the impugned detention order against the petitioner suggesting complete non-application of mind on the part of the respondents in general and the detaining Authority in particular.

Counsel for the petitioner herein would further contend that the detaining authority in the grounds of detention on the basis of which the impugned order of detention came to be passed though have referred FIR No. 35/2018 even having been referred in the earlier grounds of detention whereunder the earlier order of detention dated 07.04.2022 came to be passed against the petitioner yet has failed to show its awareness about the fact that the petitioner in the said FIR 35/2018 have had been bailed out by the competent court of law on 15.04.2019, yet again suggesting complete non-application of mind on the part of the detaining Authority.

4. On the contrary the counsel for the respondents herein while opposing the submissions of counsel for the petitioner herein would reiterate the contentions raised and pleas urged in the counter affidavit and would insist for dismissal of the petition.

5. Insofar as the aforesaid first plea raised by counsel for the petitioner is concerned, it is an admitted fact as emerges from the record that the petitioner herein have had been previously detained by the respondents in terms of the order of detention 12/DMK/PSA/2022 dated 07.04.2022 which detention order came to be quashed by this court in terms of the judgment dated 07.04.2023. Perusal of the record available on the file as also the detention record produced by counsel for the respondents would manifestly demonstrate that the respondents in general and the detaining authority in particular has remained oblivious to the said fact, thus, rendering the impugned order legally un-sustainable more so, in view of the judgment of the Apex Court passed in case titled as "C. B. Kahar vs. N. L. Kalna" reported in

AIR 1989 SC 1234, 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."

6. Insofar as the aforesaid next plea raised by counsel for the petitioner is concerned, perusal of the record tends to show that indisputably the petitioner has been granted bail in FIR 35/2018 registered with Police Station Qoimoh for offenses under section 147, 148, 149, 336, and 307 RPC by competent court on 15.04.2019 and on a closer examination of the detention record as well, it emerges that neither the sponsoring agency nor the detaining authority has shown its awareness about the said fact while detaining the detenue under impugned order.

A reference in this regard to the judgment of this court passed in case titled as "Mohammad Maqbool Itoo Vs. State of J&K"

reported in 2010 (3) JKJ 700 would be relevant wherein it has been held that non-awareness shown by the detaining authority about the grant of bail in favour of the detenue in an FIR referred and relied upon by the detaining authority for the purpose of detention of the detenue, would amount to complete non-application of mind by the detaining authority rendering the detention order legally unsustainable.

7. Having regard to the aforesaid position obtaining in the matter, the instant petition deserves to be allowed.

8. Accordingly, petition is allowed and impugned order 02/DMK/PSA/2023 dated 22.06.2023 is quashed with a direction to the respondents including concerned jail authority to release the detenue forthwith from the preventive detention, unless he is not required in any other case.