Jammu & Kashmir High Court - Srinagar Bench
Athar Mohammad Lone vs State Of J&K & Anr on 30 May, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.01/2019
Reserved on:22.05.2019
Pronounced on:30.05.2019
Athar Mohammad Lone ...Petitioner(s)
Through: Mr. Wajid Haseeb, Advocate
V/s
State of J&K & anr.
...Respondent(s)
Through: Mr. Asif Maqbool, Dy. AG.
CORAM:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT
1. Detenu - Athar Mohammad Lone son of Ghulam Mohammad Lone resident of Tawheed Gunj Baramulla, through his uncle seeks quashment of detention order No.120/DMB/PSA/2018 dated 26.12.2018, passed by District Magistrate, Baramulla (for brevity "Detaining Authority"), directing preventive detention of the detenu.
2. The petitioner's case, as set out in the petition, is that initially the detenue was taken into preventive custody in terms of order No.24/DMB/PSA/2016 dated 17.05.2018, which was challenged before this Court in HCP No.119/2018. Same was allowed in terms of judgment dated 23.10.2018 and the said detention order was quashed and the detenue was directed to be released from preventive custody. The detenu was not released and instead was taken in custody in connection with case FIR No.191/2016 and while custody, has been gain taken into preventive custody in terms of the HCP No.012019 MOHAMMAD ALTAF BHAT Page 1 of 7 2019.06.01 11:14 I attest to the accuracy and integrity of this document impugned order. It is also projected in the petition that the allegations/grounds of detention are stated to be vague and mere assertions. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded.
3. Respondents, on notice, appeared and filed the counter affidavit wherein they have vehemently denied the averments made in the petition. It is also contended that the procedure prescribed by law has been strictly followed. The requirement material has been furnished to the detenu. The detention record has also been produced. The detention order along with the grounds of detention and other material which was relied upon by the detaining authority stands furnished to the detenue. The preventive detention of the detenu is neither illegal nor unconstitutional. There is no other purpose behind the detention of the detenu than the one to prevent him from acting in any manner harmful to the maintenance of security of the state.
4. Heard learned counsel for the parties and also perused the record.
5. Contention of the learned counsel for the petitioner is that the grounds of detention which formed base of the earlier order of detention could not be made base for the impugned order of detention. Once a detention order is quashed, whatever grounds formed base, in law, cannot be used for passing fresh order of detention unless fresh facts, would emerge after release of the detenue from the custody warranting detention but when the detenue is never released, there could be no new facts so as to form base for the grounds of detention.
HCP No.012019 MOHAMMAD ALTAF BHAT Page 2 of 7 2019.06.01 11:14 I attest to the accuracy and
integrity of this document
6. Perusal of the detention reveals that the content and composition of the grounds of detention in successive detention orders remains same with only minor additions attributed to the developments subsequent to the detention orders, unmindful of the fact that the detenu all along remained in detention. Once we find the grounds of detention in support of quashed/revoked detention order(s) and one under challenge to be, in substance, identical, it is next to be seen what is its fall out on the detention order. It is quite evident from the perusal of grounds of detention that the activities referred to and attributed to the detenu in terms of FIR Nos.327/2016, 62/2018 and 191/2016 are about the incidents which have allegedly taken place before the impugned detention order was passed. No fresh activity is attributed to the detenue, which, accordingly, vitiates the impugned detention order. The question surfaced in Chhagan Bhagwan Kahar v. N. L. Kalna and others [AIR 1989 SC 1234]. The Supreme Court held:
"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.
7. In Jahangir Khan Fazal Khan Pathan v. The Police Commissioner, Ahmedabad and another [AIR 1989 SC 1812], the Supreme Court 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."HCP No.012019 MOHAMMAD ALTAF BHAT Page 3 of 7 2019.06.01 11:14 I attest to the accuracy and integrity of this document
8. Again in Ramesh v. State of Gujarat [AIR 1989 SC 1881], it is held:
"10. On a careful scrutiny of grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal cases 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."
9. It is well settled law that when the detention order is quashed by the Court, grounds of the order so quashed should not be taken into consideration, either as whole or in part, even along with fresh grounds of detention for drawing subjective satisfaction to pass fresh detention order. It is to be appreciated that once the Court sets-aside the detention order, it nullifies the entire order. The Detaining Authority, therefore, cannot make use of the grounds that were relied upon to pass the earlier detention order(s) or activities that were detailed in such grounds. No such recourse is available where the earlier detention order is struck down by the Court as it sets at naught not only detention order but the grounds on which the detention order is based. A reference in this regard may as well be made to law laid down in Masrat Alam Bhat v. State & Others [2003 (II) SLJ 570]; Mst. Zahida v. State & Others [2008 (1) SLJ 245]; Masrat Alam Bhat [2008 (II) SLJ 689] and Fayaz Ahmad Wani v. State of J&K [SLJ 2003(I) 272].
10. 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 as under:
"......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."
11. 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: HCP No.012019 MOHAMMAD ALTAF BHAT Page 4 of 7 2019.06.01 11:14 I attest to the accuracy and integrity of this document
"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."
12. Further, it is contended by the learned counsel for the petitioner that the detenue was already in custody in connection with various criminal cases, referred to in the order of detention and the grounds of detention, therefore, there was no need to direct his preventive detention and the fact of arrest of the detenue in connection therewith has also not been denied by the respondents.
13. Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically "No", taking into consideration the law laid down by the Hon'ble Apex Court in "Sama Aruna v. State of Telangana & Anr" (AIR 2017 SC 2662). Para 24 of the said judgment is apposite to be quoted herein below:
"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:HCP No.012019 MOHAMMAD ALTAF BHAT Page 5 of 7 2019.06.01 11:14 I attest to the accuracy and integrity of this document
"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."
14. Further, it is projected that the detenue has been shown involved in various criminal cases which include FIR No.62/2018 and FIR No.327/2016, reference of which is found in the grounds of detention. In these two cases he has been admitted to bail, but this fact has not been made mention of in the grounds of detention though reference to said FIR has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Anant Sakharam Raut v. State of Maharashtra and another" reported in AIR 1987 SC 137: -
"We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the HCP No.012019 MOHAMMAD ALTAF BHAT Page 6 of 7 2019.06.01 11:14 I attest to the accuracy and integrity of this document judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith......"
1) For what has been stated above, the order of detention impugned bearing No. 120/DMB/PSA/2018 dated 26.12.2018, passed by District Magistrate, Baramulla, passed by District Magistrate, Bandipora, is not valid, as such, is quashed. The detenu is directed to be released from the preventive custody provided he is not required in connection with any other case.
2) The record, as produced, be returned to the learned counsel for the respondents.
(Rashid Ali Dar) Judge Srinagar 30.05.2019 "Bhat Altaf, PS"
HCP No.012019 MOHAMMAD ALTAF BHAT Page 7 of 7 2019.06.01 11:14 I attest to the accuracy and integrity of this document