Jammu & Kashmir High Court - Srinagar Bench
Ishfaq Ahmad Dar vs Union Territory Of J&K And Others on 31 October, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 2
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 93/2024
Ishfaq Ahmad Dar ...Petitioner(s)
Through: Mr. Mir Umar, Advocate.
Vs.
Union Territory of J&K and Others ...Respondent(s)
Through: Mr. Zahid Qais Noor, GA.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
31.10.2024
(ORAL)
1. The petitioner in the instant petition filed under Article 226 of the
Constitution has challenged the order of detention No. 02-DMG-PSA-
2024 dated 30.03.2024 (for short the impugned order) passed by
respondent 2 (for short the detaining authority) under and in terms of the
provisions of the Jammu and Kashmir Public Safety Act, 1978 (for short
the Act of 1978).
2. The petitioner has challenged the impugned order on multiple grounds
urged in the petition.
3. Counter affidavit to the petition has been filed by respondents wherein
the petition is being opposed on the premise that the detaining authority
after examining the dossier and material furnished by the sponsoring
agency, detained the petitioner on proper application of mind after
deriving subjective satisfaction as the petitioner's activities were found to
be prejudicial to the security of the State necessitating ordered the
detention of the petitioner in terms of the impugned order after
complying with and fulfilling the statutory and Constitutional
requirements and guarantees.
Heard counsel for the parties and perused the record.
4. According to counsel for the petitioner on account of the alleged
involvement of the petitioner in FIR No. 52/2018 registered with Police
Station Kheerbhawani, the petitioner came to be previously detained
which upon being challenged by the petitioner before this Court in HCP
No. 343/2018 came to be quashed on 07.03.2019, and that the
respondents on the basis of almost similar grounds on which the previous
detention order was ordered, the petitioner has been detained again in
terms of the impugned order, and that the detaining authority has shown
its complete non-awareness about the quashing of the said earlier
detention order while detaining the petitioner in terms of the impugned
order.
5. The counsel for the petitioner herein would further contend that the
detaining authority has drawn and framed vague and ambiguous grounds
of detention on the basis of which the petitioner has been detained in
terms of the impugned order, and in fact the said grounds of detention are
the replica of the dossier furnished to the detaining authority by the
sponsoring agency which as well signifies non-application of mind on the
part of the detaining authority.
6. On the contrary, the counsel for the respondents herein while opposing
the submissions of counsel for the petitioner herein would contend that
the petitioner herein came to be detained in terms of the impugned order
on account of his activities prejudicial to the security of the State/UT
after complying with and fulfilling statutory and Constitutional
requirements and guarantees by the detaining authority upon deriving
subjective satisfaction thereof.
7. Insofar as the aforesaid first plea of counsel for the petitioner herein is
concerned, perusal of the record available on file would reveal that
indisputably the petitioner had been detained previously by the
respondents in terms of the order of detention dated 03.10.20218 on the
basis of the grounds appended with the petition and a deeper and closer
examination of which grounds as also the latest grounds on the basis of
which the petitioner has been detained in terms of the impugned order
would manifestly demonstrate that both the grounds of detention are
almost identical and similar.
Record would also reveal that the detaining authority has indisputably
shown its complete non-awareness about the fact that the earlier
detention order passed against the petitioner stands quashed by this court
in HCP No. 343/2018. Thus, in presence of the aforesaid position
obtaining in the matter, it cannot, but be said that the detaining authority
has acted in the matter mechanically and without application of mind
which as such would vitiate impugned order. A reference in this regard to
the judgment of the Apex Court passed in case titled as "C. B. Kahar
vs. N. L. Kalna" reported in AIR 1989 SC 1234 would be relevant
herein 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."
8. Insofar as the aforesaid next plea raised by counsel for the petitioner is
concerned, perusal of the record reveals that the grounds of detention
whereunder the impugned order has been passed by the detaining
authority owes its origin to the dossier furnished to the detaining
authority by the sponsoring agency and a bare perusal of the detention
record produced by counsel for the respondents would reveal that the
grounds of detention in fact are replica of the dossier furnished to the
detaining authority by the sponsoring agency, thus, manifestly
suggesting that the detaining authority has not at all applied its
independent mind while either framing the grounds of detention or
else deriving subjective satisfaction being sine-qua-non for directing
preventive detention. In this view of the matter as well, the impugned
order is not legally sustainable moreso in view of law laid down by
the Apex Court in case titled as "Jai Singh and Ors. v. State of
J&K" reported in AIR 1895 SC 764.
9. Viewed thus, for the aforesaid reasons the instant petition deserves to
be allowed and as such, is allowed, as a consequence whereof the
detention Order No. 02-DMG-PSA-2024 dated 30.03.2024 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.
10. The detention record produced by counsel for the respondents is
returned back in the open court.
11. Disposed of.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
31.10.2024
Ishaq
Whether the order is speaking? Yes/No
Whether approved for reporting ? Yes/No
