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2021 DIGILAW 42 (JK)

Asif Ashraf Malik v. State of J&K

2021-02-26

SANJAY DHAR

body2021
Judgment Sanjay Dhar, J.—Asif Ashraf Malik (the detenue), has filed this petition through his father, namely, Mohammad Ashraf Malik, seeking a Writ of Habeas Corpus for quashing the detention order bearing No.16/DMS/PSA/2019 dated 06.08.2019, passed by District Magistrate, Shopian (the detaining authority) with a view to prevent him from acting in any manner prejudicial to the security of the State/Country. The order is, purportedly, passed by the detaining authority in exercise of powers conferred under clause (a) of Section 8 of the J&K Public Safety Act, 1978 (the Act of 1978). 2. The impugned order has been assailed by the petitioner, inter alia, on the following grounds: (I) That previously the detenue was placed under preventive detention pursuant to two consecutive detention orders bearing Nos.122/DMS/PSA/ 2018 dated 31.07.2018 and 154/DMS/PSA/ 2019 dated 17.01.2019. Both these orders have been quashed by this Court but without there being any fresh material or grounds, the impugned detention order has been passed by the detaining authority; (II) That the material on the basis of which impugned detention order has been passed has not been supplied to the detenue thereby disabling him from making an effective representation against his detention. (III) That there has been total non-application of mind while passing the impugned, inasmuch in the grounds there is no mention about the quashment of second detention order bearing No. 154/DMS/PSA/ 2019 dated 17.01.2019. 3. On being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein besides other contentions, it is submitted that detention was necessitated because of involvement of the detenue in very serious offences against the State as mentioned in the FIRs registered against him. The detenue was informed that he can make a representation to the government as well as the detaining authority against his detention. It is further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. The order has been issued validly and legally. The respondents have placed reliance on various judgments of the Supreme Court including Haradhan Saha v. State of W.B (1975) 3 SCC 198 . The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for the parties and perused the material available on record. 5. The respondents have placed reliance on various judgments of the Supreme Court including Haradhan Saha v. State of W.B (1975) 3 SCC 198 . The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for the parties and perused the material available on record. 5. So far as the first ground urged by the learned counsel for the petitioner is concerned, the petitioner has placed on record copy of the judgment dated 27.05.2019, passed in HCP No.51/2019 along with copies of grounds of detention. A perusal of the said judgment reveals that in the earlier petition i.e. HCP No.242/2018, the petitioner had challenged detention order No.122/DMS/PSA/ 2018 dated 31.07.2018 which was quashed by this Court in terms of judgment dated 07.12.2018. Subsequently, the petitioner had been placed under preventive detention in terms of detention order bearing No.154/DMS/PSA/ 2019 dated 17.01.2019 that was challenged by the petitioner by way of HCP No.51/2019. The said petition was allowed by this Court vide judgment dated 27.05.2019 with a direction to the respondents to release the detenue forthwith. A perusal of the grounds of detention that are subject matter of the instant petition and the grounds of detention which were subject matter of earlier detention orders reveals that the same are identical, inasmuch as, the grounds of detention on all the three occasions are primarily based on FIR Nos.289/2017, 290/2017 and 88/2018. The grounds of detention that have formed the basis of the impugned detention order reveal that there is no reference to any fresh material against the detenue. 6. The Supreme Court in the case of Chhagan Bhagwan Kahar Vs. N. L. Kalna and others, (1989) 2 SCC 318 , while dealing with similar question, has observed 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. N. L. Kalna and others, (1989) 2 SCC 318 , while dealing with similar question, has observed 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. 7. Again in the case of Jahangir Khan Fazal Khan Pathan Vs. The Police Commissioner, Ahmadabad and another, (1989) 3 SCC 590 , the Supreme Court has held as under: “……It is, therefore, clear that an order of detention cannot be made after considering the 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 the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.” 8. From the aforesaid enunciation of law on the subject, it is clear that unless there are fresh grounds of detention, a person cannot be put under preventive detention on the basis of the grounds of detention which have formed basis of an earlier detention order that has been quashed by a Court. The ratio laid down by the Supreme Court in the afore cited two cases squarely applies to the facts of the instant case. In fact, in the instant case not only once but on two earlier occasions, the Court has quashed the detention orders against the petitioner and on both these occasions, the detention orders were based on the same material as is the basis of the order of detention, impugned herein. Thus, the impugned order of detention cannot be sustained in the eyes of law. 9. Thus, the impugned order of detention cannot be sustained in the eyes of law. 9. The second ground urged by the petitioner is that he has not been supplied with the material forming basis of the grounds of detention. 10. On perusal of the detention record produced by learned counsel for the respondents, the ground regarding non-supply of relevant material appears to have substance as there is nothing in the said record to show that the relevant material has been supplied to the detenue. Neither the report of execution nor any document executed by the detenue acknowledging the receipt of the material is available in the detention record. This goes to support the contention of the petitioner that he has not been supplied the relevant material. Obviously, the petitioner has been hampered by non-supply of the relevant material in making an effective representation against his detention before the concerned authority/Advisory Board. Non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors ( AIR 1999 SC 3051 ), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors ( AIR 2009 SC 2184 ) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440 . 11. So far as the contention of the petitioner that there has been non-application of mind on the part of the detaining authority while passing the impugned order of detention, is concerned, the same appears to be well founded. This is so because the grounds of detention do not bear any reference to the fact that second detention order bearing No.154/DMS/PSA/2019 dated 17.01.2019, had been quashed by this Court vide judgment dated 27.05.2019 delivered in HCP No.51/2019. This clearly shows that either the detaining authority has not examined the record meticulously or the whole record pertaining to the detenue has not been placed before it, which in turn exhibits non-application of mind on the part of the detaining authority, thereby rendering the impugned order of detention unsustainable. 12. This clearly shows that either the detaining authority has not examined the record meticulously or the whole record pertaining to the detenue has not been placed before it, which in turn exhibits non-application of mind on the part of the detaining authority, thereby rendering the impugned order of detention unsustainable. 12. For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. Further custody of the detenue shall be regulated in accordance with the orders as may be passed in the criminal cases registered against him.