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2008 DIGILAW 28 (JK)

Zahida v. State Of J. &K.

2008-02-05

MOHAMMAD YAQOOB MIR

body2008
1. After quashment of two detention orders passed against the petitioner, third detention order which is impugned in the instant petition has been passed. 2. The gravamen of the allegations against the detenu is that she allegedly is affiliated with Lashkar-e-Taiba outfit. She has been providing shelter to the militants. She is alleged to have carried two bags containing arms and ammunition. In the month of April, 2006, a person known as Abdullah visited her house and asked her to conceal a bag containing arms and ammunition i.e. 2 AK rifles and four hand grenades. Thereafter, some more hand grenades were delivered to her. So in addition to dumping the arms and ammunition, she used to transport the same, `in the1 month of May, 2006, Lashkar-e-Taiba outfit hatched a conspiracy and carried out suicidal attack in Sheri Kashmir Park. In this connection she was contacted and was asked to hand over a bag full of arms and ammunition to one Mohd. Yousuf Dagga. On 20.05.2006, she is alleged to have handed over bag containing two rifles to Mohd. Yousaf Dagga at Idd Gah and one grenade was retained at her residence. After suicidal attack was carried out case as FIR No.51/06 was registered in Police Station, Kothi Bagh for commission of offences punishable under Section 302, 307 R.P.C. 3. Mst. Zahida, detenu, initially had been arrested in connection with said case Thereafter, while in custody was detained pursuant to detention order no. DMS/PSA/29 dated 30.09.2006. The said order of detention was quashed by this Court while disposing of HCP No.481/06 on 29.12.2006. Again the detenue while in custody was detained pursuant to second detention order bearing no. DMS/PSA/42 dated 08.01.2007. The said detention order again was challenged through the medium of Habeas Corpus petition no. 12/07 which was disposed of by this Court on 01:05.2007 wherein the second detention order was quashed. 4. Detenu had been granted bail in connection with FIR no.51/06 but before she could be released, she was again detained under third detention order bearing no. DMS/PSA/19/2007 dated 21.07.2007 which is under challenge in the instant petition. 5. Heard appearing counsel for the parties. Learned counsel for the petitioner highlighted that all the three detention orders have been passed on similar grounds, which is unwarranted. In support thereof, he relied on judgment AIR 1985 SC 697. 6. DMS/PSA/19/2007 dated 21.07.2007 which is under challenge in the instant petition. 5. Heard appearing counsel for the parties. Learned counsel for the petitioner highlighted that all the three detention orders have been passed on similar grounds, which is unwarranted. In support thereof, he relied on judgment AIR 1985 SC 697. 6. Appearing counsel for respondents confronted with this situation, submitted that as per Section 19 (2) Of J&K Public Safety Act, 1978, (hereinafter referred to as "Act") fresh order of detention on the same facts is permissible, in case of, dis continuance of earlier order of detention on account of technical defect. Secondly, when the earlier order of detention has been revoked. 7. Though appearing counsel for the petitioner projected other grounds as find place in the petition but same are not required to be dealt with as already projected contention has the prevailing force. The question as to whether on similar grounds third detention order could be passed; requires consideration. 8. By interpreting Sub Section (2) of Section 19 of the Act, it is to be made clear that the detention order if revoked or discontinued on account of technical defect or on account of legal defect by the authorities concerned, then it is open for the detaining authority to pass second detention order on the same grounds after removal of technical defects or legal flaws but once order of detention has been quashed by the court while invoking writ jurisdiction, then on the same grounds, fresh detention order cannot be passed. The judgment referred and relied as reported in AIR 1985 SC 697 is quiet applicable to the facts of the instant case. In the reported judgment it has been held: - "9. The power conferred under clauses (a) and (b) of sub-s (1) of S.11 is in fact extension of the power recognized under S.21 of the General Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of S.11 (1) of the Act are also entitled to exercise the power of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a High Prerogative writ like habeas corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same is exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by S.11 (I) of the Act, the order is not known the statute and is exercises by an authority beyond the purview of sub-section (l) of S.11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, sub-s. (2) of S.11 is not applicable and the detaining authority is not entitled to make another order under S.3 of the Act on the same grounds. 10. We are of the view that this seems to be the legislative scheme. The pronounced judicial view of this Court was that repeated orders of detention are not to be made. Parliament while making provision in S.I 1(2) of the Act, must be taken to have been aware of such view and in conferring the power of making repeated orders, safeguards have been provided under sub-s (1) by confining the exercise of power to limited situations. Clothing the prescribed authority to exercise power under S. 3 even in a situation where the Court has intervened to bring about nullification of the order of detention would give rise to complicated situations and keeping the scheme of the section in view we are of the clear opinion that where an order is quashed by a Court in exercise of extraordinary jurisdiction, the power of making a fresh order under sub section (2) of S.11 is not available to be exercised. 9. In the reported judgment scope of sub section 2 of section 11 of COFEEPOSA Act has been settled, said provision prescribed for revocation of detention order, which more or less is similar to sub section 2 of Sec 19 of Public Safety Act. 10. 9. In the reported judgment scope of sub section 2 of section 11 of COFEEPOSA Act has been settled, said provision prescribed for revocation of detention order, which more or less is similar to sub section 2 of Sec 19 of Public Safety Act. 10. Applying ratio of judgment (supra) to the facts and features of the present case, it is quiet clear that detention order under challenge cannot survive because the grounds on the basis of which earlier two detention orders were passed stand quashed by this court while disposing of HCP No.481/06 and HCP No: 12/07. Grounds of detention are same with one difference i.e. only change of words here or there. 11. Viewed thus, order of detention under challenge bearing no. DMS/PSA/19/2007 dated 21.07.2007 is quashed. Detenu Mst. Zahida W/O Nazir Ahmed Bhat, R/o Gani Stadium, Rajouri Kadal at present Narwara, Iddgah Safakadal, Srinagar, be released forthwith, if not required in connection with any order case. Detention record be returned to Mr. N.H Shah, Dy. A.G concerned.