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2021 DIGILAW 306 (JK)

Syed Imtiyaz Hyder v. State of J&K

2021-06-30

RAJNESH OSWAL

body2021
JUDGMENT : RAJNESH OSWAL, J. 1. Through the medium of this petition filed through his son, the petitioner has questioned the order of detention bearing No. DMB/PSA/31 of 2019 dated 29.07.2019 issued by the respondent No. 2, by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978 (for short, the Act). 2. It is stated in the petition that the petitioner was initially arrested on 10.03.2019 by the SOG/Police of Police Station, Budgam and was falsely implicated in FIR bearing No. 96/2017 for commission of offences under Sections 147, 148, 149, 336, 427, 341, 332 RPC and during his continuation of arrest in the above mentioned FIR, the petitioner was detained under the Act, vide order dated 16.03.2019. The said order of detention was impugned by the petitioner through the medium of writ petition bearing No. 117/2019 and the said order was quashed by virtue of judgment dated 12.07.2019. It is further stated that the petitioner was not released and the respondents passed yet another detention order, which is the order impugned in the instant petition. The petitioner has questioned the impugned order of detention inter-alia on the grounds that the constitutional as well as procedural safeguards as envisaged under the Constitution of India as well as under the Act have not been complied with by the Detaining Authority while passing the order of detention. The order of detention was neither referred to the Advisory Board nor was approved within the stipulated time. No material that has been relied upon by the Detaining Authority has been furnished to the petitioner thereby depriving the petitioner of his valuable right of making effective representation against preventive detention. The order of detention has been passed after a gap of 15 months, as such, the order of detention has been passed on stale grounds. The petitioner has also placed on record earlier order of detention along with grounds of detention. 3. The respondents have filed the response, in which they have stated that the petitioner has been detained pursuant to the order of detention passed by the respondent No. 2 and while doing so the procedural as well as statutory safeguards enshrined under Article 22(5) of the Constitution of India and Section 13 of the Act have been complied with by the respondents. They have further stated that they have supplied all the requisite documents to the petitioner so as to enable him to make an effective representation to the detaining authority and to the Government. The order of detention was executed on 31.07.2019 by the Executive Officer, ASI Bashir Ahmed and the petitioner was handed over to the Superintendent of District Jail Jammu for lodgment. The contents of the detention order/warrant and the grounds of detention were read over and were explained to the petitioner in the language which he fully understood and the petitioner was also informed of his right to make an effective representation to the Detaining Authority. The case of the petitioner was referred to the Advisory Board for its opinion and after the receipt of the opinion of the Advisory Board, the Government vide Order No. Home/PB-V/1950 of 2019 dated 19.09.2019 has confirmed the order of detention dated 29.07.2019. It is further stated that the petitioner has been found involved in FIR No. 263/2009 for commission of offences under sections 147 and 148 RPC and 13 ULA(P) Act of Police Station, Budgam, FIR bearing No. 306/2010 for commission of offences under sections 147, 148, 149, 188, 307, 436, 332 and 427 RPC of Police Station, Budgam, FIR bearing No. 403/2010 for commission of offences under sections 147, 148, 149, 188, 336 and 427 RPC of Police Station, Budgam, FIR bearing No. 406/2010 for commission of offences under sections 307, 392, 436, 147, 148, 149, 188, 332, 120 and 342, RPC of Police Station, Budgam, FIR bearing No. 407/2010 for commission of offences under sections 302, 307, 148, 149, 188, 120-B, 121, 436, 511, 336 and 427 RPC of Police Station, Budgam, FIR bearing No. 38/2013 for commission of offences under sections 147, 148, 188, 336 and 427 RPC of Police Station, Budgam, FIR bearing No. 96/2017 for commission of offences under sections 147, 148, 149, 336, 427, 343 and 332 RPC of Police Station, Budgam and FIR bearing No. 69/2018 for commission of offences under sections 147, 148, 149, 332, 336, 427 and 307 RPC of Police Station, Budgam and on account of above said facts and circumstances, the Detaining Authority found it necessary to detain the petitioner under the Act. 4. Respondents have produced the soft copy of the detention record. 5. Mr. 4. Respondents have produced the soft copy of the detention record. 5. Mr. B.A. Tak, learned counsel for the petitioner has vehemently argued that as the subsequent order of detention has been passed substantially on the same grounds on the basis of which the earlier detention order was passed, as such, the order of detention is bad in law. 6. On the contrary, Mr. Mir Suhail, learned Additional Advocate General appearing for the respondents has vehemently argued that all the documents have been served upon the petitioner. Mr. Suhail has also argued that the detention order is legal and all procedural and statutory safeguards have been complied with while passing the order of detention, as such, the order of detention is sustainable in the eyes of law. 7. Heard and perused the detention record meticulously. 8. From perusal of both grounds of detention it transpires that the order impugned has been passed on the similar grounds as narrated in the earlier grounds of detention on the basis of which the earlier order of detention was passed except FIR bearing No. 69/2018. Perusal of FIR bearing No. 69/2018 as narrated in the grounds of detention reveals that on 03.04.2018, an unruly mob appeared at Hyderpora near J.K. Bank Building equipped with bricks and stones, blocked the road and attacked the Police party with the intention to kill them and during stone pelting, some security personnel got injured. During investigation the petitioner was found involved in the said case. It is mentionable here that the said incident pertains to the month of April, 2018, whereas the earlier detention order was passed on 16.03.2019 meaning thereby that on the basis of said FIR, the petitioner was not ordered to be detained earlier. The grounds of detention of the earlier detention order have been taken into consideration while passing the impugned order of detention by the Detaining Authority. The same grounds could not have been relied upon by the respondents for issuance the fresh detention order. The law is well settled that if the order of detention comes to an end either by revocation or by the expiry of the period of order of detention, there must be fresh facts for passing a subsequent order of detention. The same grounds could not have been relied upon by the respondents for issuance the fresh detention order. The law is well settled that if the order of detention comes to an end either by revocation or by the expiry of the period of order of detention, there must be fresh facts for passing a subsequent order of detention. When the detention order has been quashed by the court, the grounds of said order are not to be taken into consideration either as a whole or in part even along with the fresh grounds of detention in order to pass a fresh detention order and if such previous grounds of detention are taken into consideration while passing a fresh detention order, the order of detention will be vitiated. 9. Reliance is placed upon the decision of the Apex Court in Chhagan Bhagwan Kahar vs. N.L. Kalna, (1989) 2 SCC 318 and the relevant Para 12 is reproduced as under: “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.” [See also Ramesh vs. State of Gujarat, (1989) 4 SCC 124 ] 10. Another aspect that requires consideration is that the order impugned dated 29.07.2019 has been passed on the premises that the petitioner is mobilizing the youth of the locality to disrupt the upcoming parliamentary elections where as the perusal of the order dated 12.07.2019 passed by the Court whereby the earlier order of detention was quashed, reveals that the court has observed that the parliamentary elections are already over. Mentioning the said fact again in the subsequent order of detention by the respondent No. 2 that detention of the petitioner is necessary for upcoming elections is the clear non-application of mind in view of the fact that the elections were already over by the time order impugned was passed. 11. In view of the above, this petition is allowed. Detention order No. 01/DMB/PSA/31 of 2019 dated 29.07.2019 is quashed. Petitioner (detenue) be set free from the preventive custody, provided he is not required in any other case.