Jammu & Kashmir High Court - Srinagar Bench
Masarat Alam Bhat vs State Of J&K & Anr (2010(Ii) S. L. J. 872) on 23 December, 2011
IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR HCP No. 304 of 2011 Masarat Alam Bhat Petitioners State & ors Respondents !Mr. M. A. Qayoom, Advocate ^Mr. S. A. Naik, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 23/12/2011 :J U D G M E N T:
1) Vide judgment dated 10.06.2011, rendered in HCP No.49/2011, filed on behalf of detenue, order of detention bearing No.DMS/PSA/112/2010 dated 11.12.2010 was quashed. Subsequent thereto, detenue has again been detained vide order of detention impugned bearing No.DMS/PSA/ 14/2011 dated 004.08.2011, validity of the same is questioned.
2) It is contended that the copy of the dossier has been reproduced verbatim in the grounds of detention. Only word dossier is replaced by the word grounds of detention, which according to learned counsel for the petitioner, would show that the detaining authority has not applied its mind. Formulation of grounds is imperative for deriving satisfaction so as to pass the preventive order. On this count, while contending the order of detention to be invalid, learned counsel relied on the judgment captioned Fiaz Ahmad through his Mother Atiqa Begum Vs. State of J&K & anr (2010(II) S. L. J. 872), wherein, while noticing the same position and while relying on the judgment captioned Jai Singh & Ors. Vs. State of J&K (AIR 1985 Sc 764), it was held that there was no due application of mind by the detaining authority in passing the order of detention.
3) According to learned counsel for the respondents, the past conduct has to be taken into consideration as has been done.
4) It is true that the past conduct and antecedents are to be taken note of but when the past conduct and antecedents have been taken note of in the order of detention which has been quashed, same position could not be taken note of for deriving satisfaction for passing the fresh order of detention.
5) Honble Apex court in the judgment Wasiuddin Ahmed Vs. District Magistrate, Aligarh UP and others reported in (1981) 4 Supreme Court Cases 521, has held:
25. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary.
6) Further in the judgment rendered in case Jahangir Khan Fazal Khan Pathan Vs. The Police Commissioner, Ahmadabad and another (AIR 1989 SC 1812), it has been held:
It is, therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.
7) Again same position has been dealt with in the case Ramesh Vs. State of Gujarat (AIR 1989 SC 1881). Para 10 is relevant to be quoted:
10. On a careful scrutiny of grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal case mentioned under Sr. Nos.1 and 2 of the table which where the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenue.
8) The next contention is that the copies of the documents, statements and other material as referred to in the grounds of detention, have not been supplied to the detenue which has infringed the right of detenue of making a purposeful representation.
9) The contention as raised has a prevailing force. It is not forthcoming from the records as produced that the material forming base for the grounds of detention has been supplied to the detenue which is a serious violation of the right guaranteed to the detenue. In Catena of authorities, it has been time and again held that non-supply of material which forms base for the order of detention is a serious violation to the right guaranteed, therefore, infringement of such right vitiates the order of detention.
10) In the backdrop of the factual and legal position as noticed, only conclusion in-keeping therewith is that the order of detention is unsustainable so is quashed. Detenue be released provided not required in connection with any other case.
11) Detention records as produced be returned to the learned counsel for the respondents. (Mohammad Yaqoob Mir) Judge Srinagar 23.12.2011 Mohammad Altaf