Jammu & Kashmir High Court - Srinagar Bench
Unknown vs Bashir Ahmad Sualiah on 23 April, 2019
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
HCP no.17/2019
Date of Decision: 23.04.2019 Bashir Ahmad Sualiah v.
State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner(s): Mr Adil Asmi, Advocate For respondent(s): Mr Asif Maqbool, GA Whether approved for reporting? Yes/No
1. Challenge is thrown to Order no.108/DMB/PSA/2018 dated 04.12.2018, passed by District Magistrate Baramulla, (for brevity "detaining authority"), placing under preventive detention one Bashir Ahmad Sualiah son of Late Ghulam Mohammad Sualiah resident of Mohalla Jadeed Behind TP Branch J&K Bank, District Baramulla (for brevity "detenu") and quashment thereof is beseeched for on the grounds adumbrated in instant petition.
2. Counter Affidavit has been filed by respondents.
3. I have heard learned counsel for parties. I have perused the detention record produced by learned counsel for respondents and considered the matter.
4. Learned counsel for petitioner, with the aim of bolstering the case set up by petitioner in writ petition on hand, has stated that by earlier by detention order no.167/DMB/PSA/2016 dated 15.11.2018, detenu was placed under preventive detention. The said detention order was challenged in a petition, diarised and registered as HCP no.635/2016. This Court by order dated 06.05.2017 quashed aforesaid detention order dated 15.11.2018 and directed respondents to release detenu. However, they did not do so. They again placed detenu under preventive detention vide Order no.37/DMB/PSA/ 2017 dated 27.05.2017, which was impugned in HCP no.197/2017 and this Court HCP no.17/2019 Page 1 of 3 vide order dated 13.10.2017. Nonetheless, respondents slapped third detention order on detenu vide order no.200/DMB/PSA/2018 dated 31.03.2018. The said detention order dated 31.03.2018 was assailed in HCP no.89/2018. This Court while allowing said writ petition vide order dated 25.10.2018 quashed third detention order dated 31.03.2018 as well. Notwithstanding quashment of successive three detention orders, respondents have issued one more detention order, impugned in present petition. Next submission of counsel for petitioner is that that grounds of detention, pressed into service to place detenu under preventive detention in terms of impugned order of detention herein, are identical to grounds of detention which were made use of while issuing earlier detention orders, quashed by this Court, and the same is suggestive of the fact of non-application of mind on part of detaining authority. Learned counsel also avers that impugned order of detention depicts outcome of non-application of mind inasmuch as detaining authority has not made an iota of whisper vis-à-vis quashment of earlier three detention orders.
5. Learned counsel for respondents states that detention order has been passed on subjective satisfaction by detaining authority and detention order is in accordance with law and there is no violation or infringement of rights guaranteed under the Constitution of India. Hence, he pleads that petition be dismissed.
6. This Court, in earlier petitions, viz. HCP no.635/2016; HCP no.197/2017; and HCP no.89/2018, has quashed detention orders no.167/DMB/PSA/2016 dated 15.11.2016; no.37/DMB/PSA/ 2017 dated 27.05.2017; and no.200/DMB/PSA/2018 dated 31.03.2018, while dealing with grounds of detention made use of in support of the said detention orders. The same grounds could not have been relied upon for making a fresh detention order. The authoritative judicial pronouncements on the subject are 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. When a detention order is quashed by the Court, issuing a high prerogative writ like habeas corpus or certiorari, the grounds of said detention order should not be taken into consideration either as a HCP no.17/2019 Page 2 of 3 whole or in part even along with fresh grounds of detention for drawing requisite subjective satisfaction to pass a fresh detention order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order. It is, therefore, clear that an order of detention cannot be made after considering 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 subjective satisfaction by detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if further fresh facts, disclosed in the grounds of impugned detention order, have been considered. Reference in this regard may be made to Chhagan Bhagwan Kahar v. N. L. Kalna and others AIR 1989 SC 1234; Jahangir Khan Fazal Khan Pathan v. The Police Commissioner, Ahmedabad and another AIR 1989 SC 1812; Ramesh v. State of Gujarat AIR 1989 SC 1881. Detention order, impugned herein, is, thus, liable to be quashed as the grounds of detention made use of by respondent No.2 while passing earlier detention orders, subsequently quashed by this Court, have been pressed into service while passing detention order in question.
7. For the reasons discussed above, petition is allowed and no.108/ DMB/PSA/2018 dated 04.12.2018, passed by District Magistrate Baramulla, quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case.
8. Detention record be returned to learned counsel for respondents.
( Tashi Rabstan) Judge Srinagar 23.04.2019 Ajaz Ahmad, PS AJAZ AHMAD 2019.04.24 11.49 I attest to the accuracy and integrity of this document HCP no.17/2019 Page 3 of 3