Jammu & Kashmir High Court - Srinagar Bench
Unknown vs Coram on 1 May, 2019
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
HCP no.70/2019 Date of Decision: 01.05.2019 Assadullah Parray v.
State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner(s): Mr M. A. Qayoom, Advocate For respondent(s): Mr Sheikh Feroz, Dy. AG Whether approved for reporting? Yes/No
1. Challenge is thrown to Order no.26/DMB/PSA/2018 dated 12.12.2018, passed by District Magistrate Bandipora, (for brevity "detaining authority"), placing under preventive detention one Assadullah Parray son of Haji Abdul Gani Parray resident of Sayed Mohalla, Hajan District Bandipora (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 an aim of bolstering the case set up by petitioner in writ petition on hand, has taken this Court to detention order no.07/DMB/PSA of 2016 dated 19.02.2016, which is said to have been subsequently revoked, but, followed by detention orders bearing no.27/DMB/PSA of 2016 dated 08.09.2016; no.05/DMB/PSA of 2017 dated 27.05.2017; and no.24/DMB/PSA of 2017-18 dated 10.02.2018, which have been revoked and quashed by this Court in HCP no.542/2016;
HCP no.219/2017; and HCP no.485/2018. Notwithstanding quashment of successive three detention orders, respondents have issued one more detention order, impugned in present petition. Next submission of learned counsel for petitioner is that the 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, HCP no.70/2019 Page 1 of 3 and the same is suggestive of the fact of non-application of mind on part of detaining authority. Learned counsel also avers that the material relied upon by detaining authority while passing impugned detention order has not been supplied to detenu, preventing him of his Constitutional and Statutory rights guaranteed under the Constitution and J&K Public Safety Act. Various other grounds have been raised by learned counsel for petitioner during the course of argumentation of the case imploring quashment of impugned detention order. He has, in support of his submissions, placed reliance on Kshetra Gogoi v. State of Assam, AIR 1970 SC 1664; Mohd. Shafi and another v. State of J&K, AIR 1970 SC 688; Chotka Hembram v. State of West Bengal and others, AIR 1974 SC 432; Baidya Nath Mandi v. State of West Bengal and others, AIR 1974 SC 1155; G. M. Shah v. State of J&K, (1980) 1 SCC 132; Chhagan Bhagwan Kahar v. N. L. Kalna and others, AIR 1989 SC 1234; Jahangirkhan Fazalkhan Pathan v. The Police Commissioner and another, AIR 1989 SC 1812; Rekha v. State of Tamil Nadu and another, (2011) 5 SCC 244; V. Shantha v. State of Telanga and others, AIR 2017 SC 2625; and Sama Aruna v. State of Telanga and another, AIR 2017 SC 2662.
5. Per contra, 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. In support of his assertions, he has relied on Shiv Ratan Makim v. Union of India and others, (1986) 1 SCC 404; and The Secretary to Government Public (Law and Order-F) and another v. Nabila and another, 2015 CRI. L.J. 1364.
6. This Court, in earlier petitions, viz. HCP no.542/2016; HCP no.219/2017; HCP no.485/2018, has quashed detention orders bearing no.27/DMB/ PSA of 2016 dated 08.09.2016; no.05/DMB/ PSA of 2017 dated 27.05.2017; 24/DMB/PSA of 2017-18 dated 10.02.2018, 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 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 HCP no.70/2019 Page 2 of 3 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 judgements rendered in the cases of Chhagan Bhagwan Kahar; Jahangirkhan Fazal Khan Pathan (supra); and 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 disposed of and detention order no.26/DMB/PSA/2018 dated 12.12.2018, passed by District Magistrate, Bandipora, 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 01.05.2019 Ajaz Ahmad, PS AJAZ AHMAD 2019.05.03 10.59 I attest to the accuracy and integrity of this document HCP no.70/2019 Page 3 of 3