Jammu & Kashmir High Court - Srinagar Bench
Ulfat Bashir Mir vs Union Territory Of J&K And Ors on 13 October, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP (Crl) No. 281/2022
Reserved on: 20.09.2023
Pronounced on: 13.10.2023
Ulfat Bashir Mir ....... Petitioner(s)
Through: Mr. G. N.Shaheen, Advocate
Versus
Union Territory of J&K and Ors. ....Respondent(s)
Through: Mr. Jahangir Dar, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, the petitioner prays for quashment of Order no. 10/DMB/PSA/2021 dated 18.10.2021(impugned detention order) passed by District Magistrate, Baramulla - respondent no. 2, (for short 'detailing authority') whereby detenu, namely, Ulfat Bashir Mir S/o Bashir Ahmad Mir R/o Nowpora, Tujjar Sharief, Sopore District Baramulla, has been placed under preventive detention with a view to prevent him from indulging in the activities which are prejudicial to the security of State and directing his lodgement in Central Jail Kotebhalwal, Jammu on the grounds made mention of therein
2. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the Union Territory and, therefore, his remaining at large is a threat to the security of Union Territory of J&K. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant.
3. I have heard learned counsel for parties. I have gone through the detention record produced by the counsel appearing for respondents and considered the matter.
2 WP (Crl) No. 281/20224. The case set up by the petitioner in the petition is that the detenu was earlier arrested in the year, 2019 in connection with case FIR No.280/2019 under Section 20, 23 ULA (P) Act, 7/25 A Act by Police Station, Sopore and subsequently placed under preventive detention vide Order No.93/DMB/PSA / 2020 dated 08.05.2020, which was challenged in WP(Crl) No.126/2020. The said detention order was quashed vide judgement dated 17.09.2021 but the detaining authority instead of releasing the detenu has passed the impugned detention order on the same and similar grounds. It is stated that detenu is neither involved in any fresh FIR nor any fresh prejudicial activity, as such, impugned detention order is in violation of Article 22(5) of Constitution of India deserves to the quashed. Further, the detaining authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are vague, indefinite, non-existent on which no prudent man can make an effective representation against such allegations. It is further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case and the grounds of detention are replica of dossier and unequivocally reflects and shows non-application of mind on the part of detaining authority.
5. Learned counsel for petitioner states that notwithstanding quashment of earlier detention order, respondents have again placed detenu under preventive detention in terms of impugned order of detention. His next submission is that same grounds of detention have been framed by detaining authority to place detenu under preventive detention in terms of impugned order of detention, which were made while passing order detention order, which was quashed by this Court and the same reflects non-application of mind on part of detaining authority. Learned counsel also submits that detaining authority has not given any fresh grounds for detention against detenu although a passing reference has been made in the grounds of detention with respect of the report of Superintendent of Police, Sopore that detenu is a major threat to the law and order and if he is allowed to remain at large, it will affect maintenance of the security of the State, which itself does not amount to fresh ground when most of the incidents or facts/ grounds are taken from earlier grounds of detention and, therefore, impugned detention order is bad in law because no fresh ground has been mentioned in 3 WP (Crl) No. 281/2022 second detention order.
6. This Court, in earlier petition, viz. WP (Crl) No. 126/2020 has quashed detention order bearing no.93/DMB/PSA/2020 dated 08.05.2020, while dealing with grounds of detention made use of in support of the said detention order. 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 detention 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 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 a rule, it nullifies the entire order. It is, thus, 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 is made to Chhagan Bhagwan Kahar v. N. L. Kalna and others, AIR 1989 SC 1234 and Ramesh v. State of GujaratAIR 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 order, subsequently quashed by this Court, have been pressed into service while passing impugned detention order.
7. Learned counsel for petitioner has rightly stated that the detaining authority has not followed the Constitutional and statutory procedural safeguards as envisaged under Article 22 (5) of the Constitution read with Section 13 of the J&K Public Safety Act, 1978. The grounds of detention are vague and non-existent in the eye of law. His further contention is that there is no nexus, proximate and live link between the allegations levelled in the 4 WP (Crl) No. 281/2022 grounds of detention as the last activity referred to and attributed to detenu is of the year 2020, and that imminent threat to the security of the State could not, thus, be deduced possible and preventive detention of the detenu necessitated.
8. The question whether the prejudicial activities of a person requiring to pass a detention order is proximate to time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped, depends on the facts and circumstances of each case. Nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case. Certainly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to the live-link between the prejudicial activities and the purpose of the detention and resultantly the impugned detention order is liable to be quashed. In this regard reference is made to the law laid down in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796].
9. For the reasons discussed above, the petition is disposed of and detention Order no. 10/DMB/PSA/2021 dated 18.10.2021, passed by District Magistrate, Baramulla is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.
10. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul) Judge Srinagar 13.10.2022 (Qazi Amjad, Secy) Whether the order is reportable: Yes/No.