Jammu & Kashmir High Court - Srinagar Bench
The Present Petition Has Been Filed By ... vs . on 18 March, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on 05.03.2021
Pronounced on 18 .03.2021
HCP No. 172/2019(WP(Crl) No. 172/2019)
Rafiq Ahmad Magray ...Detenue(s)
Through: Mr. Syed Musaib, Adv.
Vs.
State of JK &Anr. ...Respondent(s)
Through: Mr. Sajad Ashraf, GA
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The present petition has been filed by the petitioner through his father- in-law seeking quashing of order of detention bearing No. 15- DMK/PSA of 2019 dated 22.04.2019 (hereinafter referred to as 'order impugned') issued by respondent No. 2 by virtue of which the petitioner has been detained under the provisions of J&K Public Safety Act.
2. It is submitted that the petitioner was arrested in the year 2018 and detention order dated 14th September 2018 was passed against him and the said detention order was subsequently quashed by Court vide order dated 15th March 2019.
3. It is further stated that without being released from the preventive detention, the petitioner was again detained under the provisions of J&K Public Safety Act.
HCP No. 172/2019 Page 1 of 54. The impugned order has been challenged on the grounds that the grounds of detention are vague and on the basis of this no prudent man can make an effective representation against those allegations; that the detenue was already in custody but the same fact has not been mentioned in the detention order; that the detaining authority has not prepared the grounds of detention itself that is a pre-requisite before passing order impugned; that no material has been furnished to the detenue that has been relied upon by the detaining authority, as such he was disabled to make an effective representation against the detention order; that the earlier detention order of the petitioner was set-aside & on the basis of same facts fresh detention order could not have been issued by the detaining authority, that the petitioner was not informed as to the time within which he can make an effective representation against the detention order to the detaining authority.
5. Counter stands filed by the respondents in which it has been stated that all the constitutional as well as procedural safeguards as envisaged by the Constitution of India and J&K Public Safety Act have been strictly followed by the respondents in issuing the impugned order. It is further stated that the detenu always remain in touch with the criminals and anti-social elements and was arrested in FIR No. 45/2018 along with associates wherein huge quantity of narcotic substance as well as illegal arms and ammunitions were recovered when they were intercepted by Karnah Police at Saidipora Karnah. It is further stated that the order of detention has been passed strictly in accordance with law.
6. Learned counsel for the petitioner has reiterated the grounds taken in the petition and has laid much stress that no documents have been furnished to the detenue so as to enable him to make an effective representation.
7. Per contra learned GA, Mr. Sajad Ashraf, appearing for the respondents has vehemently argued that the detenue was supplied with HCP No. 172/2019 Page 2 of 5 all the documents and all the procedural safeguards have been followed while issuing impugned order.
8. Heard and perused the detention record meticulously.
9. One of the grounds that has been raised by the petitioner that earlier also the petitioner was detained, however, his detention order was quashed by the Court and later on, on similar grounds the petitioner has been ordered to be detained.
10. The perusal of the grounds of the detention order as well as the dossier reveal that there is no whisper in them with regard to the fact that the petitioner was earlier detained and his detention order was quashed by the Court. Further from the grounds of detention, it is evident that the petitioner was detained in view of the Pulwama attack and also in view of the Lok Sabha Polls being held in the valley from 11th April 2019 to 6th May 2019, with a view that the peaceful environment is not spoiled at any cost. Needless to mention here that the said situation/circumstances under which the petitioner was ordered to be detained, no more exists now. No doubt even if earlier detention order is quashed on technical grounds the subsequent detention order can be passed, but the quashing of earlier detention order must be brought to the notice of the detaining authority and from the record it is not forthcoming that the factum of quashing of earlier detention order was brought to the notice of the detaining authority.
11. It would be relevant to take note of the judgment of Apex Court in case titled Chhagan Bhagwan Kehahar vs N.L.Kalna & others HCP No. 172/2019 Page 3 of 5 reported in AIR 1989 SC page 1234 para 12, 13 and 14 which read 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 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.
13. In the present case, no doubt, the order of detention contains fresh facts. In addition to that the detaining authority has referred to the earlier detention order and the judgment of the High Court quashing it, presumably for the purpose of showing that the detenu in spite of earlier detention order was continuing his bootlegging activities. But what the detaining authority says clearly in paragraph 9 of his affidavit in reply is that he took into consideration the previous grounds of detention also for his conclusion that the detenu 'was engaged in bootlegging activities since long'. In other words the detaining authority has taken into consideration the earlier grounds of detention which grounds had been nullified by the High Court in Special Criminal Application No. 46 of 1987 by issuing prerogative writ of habeas corpus.
14. Under Section 15 of the Act, the expiry or revocation of an earlier detention order is not a bar for making a subsequent detention order under Section 3 against the same person. The proviso annexed to that Section states that in a case where no fresh facts have arisen after expiry or revocation of an earlier order made against such person the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case extend beyond the period of 12 months from the date of detention under the earlier order. Chinnappa Reddy, J. in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha and Anr. MANU/SC/0087/1987 : 1987CriLJ700 speaking for the bench of this Court while dealing with Section 15 of the Act observed:
It, therefore, becomes imperative to read down Section 15 of the Gujarat Prevention of Anti-Social Activities Act, 1985 which provides for the making of successive orders of detention so as to bring it in conformity with Article 22(4) of the Constitution. If there is to be a collision between Article 22(4) of the Constitution and Section 15 of the Act, Section 15 has to yield. But by reading down the provision, the collision may be avoidedand Section 15 may be sustained."
12.Thus from the law laid down by the Hon'ble Apex Court, it is clear that subsequent detention order cannot be issued on the similar HCP No. 172/2019 Page 4 of 5 grounds on the basis of which earlier detention order was passed and in the instant case the grounds of detention in the impugned order of detention are same as those in earlier detention order that was quashed by the Court. So on this ground only, the detention order deserves to be quashed and as such there is no need to consider the other issues raised by the detenue.
13. In view of what has been discussed above, the detention order 15-
DMK/PSA of 2019 dated 22.04.2019 is required to be quashed and as such, the same is quashed. The detenue is ordered to be released forthwith provided he is not required in any other case.
(RAJNESH OSWAL) JUDGE SRINAGAR 18.03.2021 "Nuzhat Shafi"
HCP No. 172/2019 NUZHAT SHAFI 2021.03.26 11:08 Page 5 of 5 I attest to the accuracy and integrity of this document