Jammu & Kashmir High Court - Srinagar Bench
Syed Asia Andrabi vs State Of J&K & Anr (2010(Ii) S. L. J on 19 May, 2011
IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR HCP No. 160 of 2011 Syed Asia Andrabi Petitioners State & ors Respondents !Mr. M. A. Qayoom, Advocate ^Mr. A. M. Magray, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 19/05/2011 :J U D G M E N T:
Vide judgment dated 24.3.2011, rendered in HCP No.244/2010, filed on behalf of detenue, order of detention bearing No.DMS/PSA/64/2010 dated 1.9.2010 was quashed. Subsequent thereto, detenue has again been detained vide order of detention impugned bearing No.DMS/PSA/01/2011 dated 7.4.2011, validity of the same is questioned.
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.
In the present grounds of detention, the grounds of detention of the earlier detention order No.64 of 20101 dated 1.9.2010 along with few fresh facts have been taken into consideration. Same is contended to nullify the entire order. In this connection learned counsel has rightly placed reliance on the judgment captioned Chhagan Bhagwan Kahar Vs. N. L. Kalna and others (AIR 1989 SC 1234). Para 12 is relevant to be quoted:
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.
According to learned counsel for the respondents, the past conduct has to be taken into consideration as has been done. In support thereof, learned counsel has relied on the judgment Wasiuddin Ahmed Vs. District Magistrate, Aligarh UP and others reported in (1981) 4 Supreme Court Cases 521. Para 25 is relevant to be quoted:
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. 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 as is the law laid down in the judgment AIR 1989 SC 1234 referred above.
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. 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. In the grounds of detention while reproducing the earlier grounds of detention, following paras have been added:
It may be appreciated that during detention you were brought for court production before the Honble Court of CJM Srinagar on 03/03/2011 for facing trial in case FIR No.09/2007 u/s 452, 148, 149 RPC of P/S Khanyar, Srinagar. Prior to the date of hearing and subsequent thereto, you were lodged in Women Police, Station Rambagh Srinagar. During your lodgment in the police station a number of women came to meet you on 02/03/2011, 04/03/2011 and 05/03/2011. The details of the meetings between you and your associates are given below:
On 02-03-2011 some activists (wrongly written as activities) of Dukhtarani-Milat lead by one Mst. Afroza called upon by you in womens police station. During the meeting, you instigated them to strengthen their carders and continue to carry on antinational activities. On 04-03-2011 four women activists (wrongly written as activities) lead by one Nahida Ji came to meet you in womens Police Station and during the meeting, you again resorted to the same strategy of arousing their anti-India sentiments by provoking them to keep their carders ready.
On 05-03-2011, similar type of activities are reported to have taken place when some of your associates lead by one Mst. Rukaya came to see you in Womens Police Station.
It has further been learnt through reliable source that you are contemplating to launch a fresh phase of agitation with the assistance of your likeminded associates. In this regard you are believed to have discussed some secret strategy with your colleagues. During the meetings, reportedly you have stressed upon them to continue their secessionist activities and aroused anti India sentiments in them. You have further reported to have instigated them to strengthen the secessionist network and to remain in a state of preparedness for launching fresh agitation, once you are released from jail. You are believed to have discussed some new strategy with your colleagues and party carders regarding your designs to disturb the public order during the coming summer. As in the past, you are believed to be a major threat to the law and order, if you remain at large. During the previous agitations, your activities have remained highly objectionable and provocative and there is a well founded belief, based on the reports, that if you are allowed to remain at large at this stage, it will affect the maintenance of security of state adversely. It is clear that all the aforesaid facts are relatable to the period when the detenue was in custody in connection with earlier order of detention and it is also clear that the detenue was not released after the earlier order of detention was quashed, instead, while in custody, impugned order of detention was executed. whether on such grounds order of detention is valid, has to be answered in negative in view of the law laid down by the Honble Apex Court in the judgment captioned Kshetra Gogoi Vs. State of Assam (AIR 1970 SC 1664). It shall be quite relevant to quote following sub-para of para 4 of the said judgment:
We have found it very difficult to appreciate how a person in preventive custody could continue to maintain links with his associates outside jail who had gone underground even through his friends and relatives. If the present petitioner was able to maintain such links, it casts a sad reflection on the persons in charge of him while he was in custody and, in any case, it would appear that his detention could serve no useful purpose. It appears us to be, in fact, very doubtful whether any such contacts could possibly have been maintained. However, even if we accept that such links were maintained, this additional ground mentioned does not satisfy the requirements of section 13(2) of the Act, because the only allegation is that the links were maintained during the period of preventive detention. Under Section 13(2) what is required is that fresh facts should have arisen after the expiry of the previous detention. Facts arising during the period of detention are, therefore, not relevant when applying the provisions of Section 13(2). In the present case, the fresh order was passed on 28th August, 1969, a day before the expiry, and it is obvious that no fresh facts could by that date arise and yet we held to have arisen after the date of expiry. The order dated 28th August, 1969 was, therefore, not at all justified under Section 13(2) of the Act and that order being in violation of the provisions of the Act has to be held to be invalid, so that the detention under that order is illegal. The petition is allowed. The petitioner shall be set at liberty forthwith. The next contention 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, has to be repelled as the detention record produced would indicate that the detenue has been supplied seven leaves of the grounds of detention and 52 relevant papers, receipt of which is acknowledged by the detenue. In this connection the judgment captioned Thahira Haris etc. etc. Vs. Government of Karnataka & ors reported in AIR 2009 SC 2184, as relied by the learned counsel is of no help to him. Next contention is that the order of detention has not been furnished to the detenue which renders the order of detention as bad. In support of this contention, learned counsel has relied on the judgments captioned Abdul Rashid Saraf Vs. State & another (S.L. J. 1988 J&K 346) and Ghulam Muhammad Hajam Vs. State of J&K (S. L. J. 1991 J&K 364). In both the two judgments it has been held that supply of detention order to the detenue is mandatory, failure renders the detention illegal. 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. Detention records as produced be returned to the learned counsel for the respondents. (Mohammad Yaqoob Mir) Judge 19.05.2011 Srinagar