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2008 DIGILAW 206 (JK)

Alam Bhat v. State

2008-05-23

HAKIM IMTIYAZ HUSSAIN

body2008
1. Detenue Masrat Alam has been detained under Section 8 of Jammu & Kashmir Public Safety Act, 1978 ( for short the Act). Through the medium of the present petition the petitioner has challenged the order of detention issued by the District Magistrate, Srinagar under No. DMS/PSA/26/2007 dated 16.1.2008. 2. Petitioner was earlier also detained by the District Magistrate vide Order No. DMS/PSA/03/07 dated 28.4.2007. The said detention came to be challenged before this Court and by its judgment dated 1.10.2007 the court allowed the petition and quashed the detention order. The petitioner has now been detained again on almost the same grounds on which he was detained earlier. 3. The grounds of detention show that the detenu is a staunch supporter of secessionist ideology and since 1990 he is actively involved in terrorist activities which have a direct bearing upon the maintenance of security of the State. The District Magistrate has given various grounds for his detention. It is stated that on 22.4.2007 the break way group of Hurriyat Conference arranged a Public meeting at Iddgah, Srinagar, despite the fact that the permission for conducting such a meeting was not given by the District Administration. The detenue was one of the Chief organizers of the said meeting and while addressing the gathering he raised anti-national slogans and incited the general public on spot, who got provoked and resorted to anti-national slogan shouting. During his speech he challenged the accession of the State of J&K with the Union of India and asked the general public to join terrorism and rise against the so called Indian occupation. His conduct in the said meeting was criminal in nature and accordingly a case under FIR No. 70/07 U/s 13,18 ULA (P) was registered in Police Station Safa Kadal, Srinagar, which is under investigation. 4. Learned counsel for the petitioner has submitted that the District Magistrate has passed a fresh order of detention without revoking the earlier order and that in terms of Section 18 & 19 of the Act, the District Magistrate could not have directed a fresh detention of the detenu without revoking the earlier one. He has relied on Ibrahim Bachu Bafan v. State of Gujarat AIR 1985 SC 697 and Chhagan Bhagwan Kahar v. N.L. Kalna AIR 1989 SC 1234 to show that the order of detention is not in accordance with law. 5. He has relied on Ibrahim Bachu Bafan v. State of Gujarat AIR 1985 SC 697 and Chhagan Bhagwan Kahar v. N.L. Kalna AIR 1989 SC 1234 to show that the order of detention is not in accordance with law. 5. Respondents have not filed any reply despite several opportunities provided to them. However, detention record has been produced which shows that the order of detention has been passed by the District Magistrate, Srinagar on 16.1.2008. The record would show that the material on the basis of which detention has been directed has not been furnished to the detenue at all. Only contents of the detention warrant and grounds of detention have been read over to the detenu in Urdu/Kashmiri Langauge. Though a Photostat copy of the grounds of detention has also been served on the detenu, other material on the basis of which the grounds have been framed has not been furnished to the detenue. 6. The provisions of the Act require that the detenu should be communicated with the grounds of the detention order and the material in order to enable him to file an effective representation. In Sophia Ghulam Mohammad Bhan v. State of Maharashtra & Ors. AIR 1999 SC 3051, The Apex Court observed as under:- The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained in his own language It was further held that the words `grounds used in clause (5) of Art. 22 means not only the narration or conclusions of facts, but also materials on which those facts or conclusions which constitute `grounds are based. 7. The record would further show that the order of detention was issued on 16.1.2008 while as it has been executed on 23.1.2008. Thus it took 7 days to the respondents to execute the same though the petitioner was available with the respondents during this period. 8. 7. The record would further show that the order of detention was issued on 16.1.2008 while as it has been executed on 23.1.2008. Thus it took 7 days to the respondents to execute the same though the petitioner was available with the respondents during this period. 8. Order of detention No. DMS/PSA/03/07 dated 28.4.2007, by means of which the detenue was detained earlier was quashed by this Court on 1.10.2007. A second order of detention has been passed (impugned in the present petition) without revoking the earlier order of detention. 9. Section 19 of the Act gives powers to the Government to revoke an order of detention order. It provides as under:- Revocation of detention orders:--(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Samvat 1977, a detention order may at any time be revoked or modified by the Government notwithstanding that the order has been made by any officer mentioned in Sub-section (2) of Section. In Ibrahim Bachu Bafan v. State of Gujarat ( supra) it was held that where an order of preventive detention is quashed by the High Court in exercise of its ordinary jurisdiction, the power of making a fresh order is not available to be exercised. Such a fresh order can be made only when the previous order is revoked. The Court observed: Law of preventive detention within the ambit of which the Act is covered has been accepted by our Constitution. Challenge to legislations of preventive detention as being ultra vires the Constitution has, therefore, been repelled by this Court on more than one occasion. The inbuilt safeguards provided by the different statutes dealing with preventive detention have been accepted to be in keeping with the rule of law. There is judicial consensus that under the preventive detention law, before the Act in question came into the field, repeated orders of detention could not be made. This Court had clearly indicated that more than one order of detention on the same grounds in succession would not be valid. In Chhagan Bhagwan Kahar (supra) the Supreme Court observed that 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. 10. In Chhagan Bhagwan Kahar (supra) the Supreme Court observed that 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. 10. As noticed above the order of detention impugned in the present petition has been based on the same grounds of detention on which the earlier detention order, quashed by this Court was passed. The Supreme Court in Chotka Hembram v. State of W.B. AIR 1974 SC 432 held that fresh facts must be present to warrant the making of a subsequent order of detention otherwise it would run confer to the entire scheme of the whole Act. The Court observed: - The matter can also be looked at from another angle. Section 13 of the Act provides that the maximum period for which any person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be 12 months from the date of detention. It is, therefore, plain that the maximum period for which a person can be detained on account of specified acts should not exceed 12 months. If for the same acts repeated orders of detention can be made, the effect would be that for the same acts a detenue would be liable to be detained for a period of more than 12 months. The making of a subsequent order of detention in respect of the same acts, for which an earlier order of detention was made, would run counter to the entire scheme of the Act. It would also set at naught the restriction which is imposed by Section 13 of the Act relating to the maximum period for which a person can be detained in pursuance of a detention order. 11. In view of the above discussion I find the order of detention impugned in the present petition cannot stand. Petition is therefore, allowed and the detention order No. DMS/PSA/26/2007 dated 16.1.2008 is set aside. Respondents are directed to release the detenue Masrat Alam Bhat S/o Abdul Majeed Bhat R/o Zaindar Mohalla, Srinagar forthwith provided he is not required in any other case. The record produced by Ld. Dy. AG is returned to him in the open Court.