Mr Shah Ashiq Hussain, Advocate Nazir Ahmad Rather v. U.T of J&K & Anr.

Through: Mr. Jahangir Dar, GA. JUDGEMENT

1. Instant Habeas Corpus petition has been filed by the brother of Nazir Ahmad Rather, (for short detenue,) seeking quashment of detention order No. 49/DMB/PSA/22 dated 25.06.2022 (for short detention order) passed by the respondent No. 2-District Magistrate, Baramulla (Detaining Authority), whereby the said Nazir Ahmad Rather @ Nazir, son of Ali Mohammad Rather, resident of Mongam Tehsil Keeeri, District Baramulla, has been taken into preventive custody by invoking the powers under Section 8 of the J&K Public Safety Act, 1978 and directed to be lodged in Central Jail (Kotbalwal), Jammu,

2. The challenge to the impugned detention order is made on many grounds such as; (i) That the detenue came arrested in the year 2018 and while in custody was detained under the provisions of J&K Public Safety Act, 1978 vide order dated 24.11.2018. The said detention order was quashed by the High Court of J&K in HCP No. 452/2018 in terms of judgment dated 19.02. 2019, and since then detenue is living peacefully. (ii) (iii) The allegations mentioned in the grounds of detention have no nexus with the detenue and have been fabricated by the police in order to justify its illegal action of detaining the detenue. That no fresh activity has been attributed to the detenue, as such, the grounds of detention which have already been quashed by this 2 WP (Crl) no.469/2022 Court in HCP452/2018, are not permissible under law to be pressed into service to pass a fresh detention order. That the impugned detention order being passed on the same grounds that formed the basis of the earlier detention is vitiated in law and, thus, rendered void, ab-intio and non-est in law. That the impugned detention order has been passed on the grounds that have already been nullified by this Court earlier by issuance of a writ of Habeas Corpus. That the grounds of detention order reflect that the Detaining Authority was not aware of the relevant material and the facts (iv) (v) (vi) while passing impugned detention order.

3. I have heard, Mr. Shah Ashiq Hussain, learned counsel for the petitioner and Mr. Jahangir Dar, learned GA for respondents. I have perused the detention record produced by learned counsel for respondents and considered the matter.

4. Learned senior counsel for petitioner while arguing the matter mainly laid thrust on the point that the allegations and the grounds pressed into service have already been made use of by the Detaining Authority in the earlier detention order, i.e., order No. 100/DMB/PSA/2018 dated

24.11.2018, which was quashed by this Court vide judgement dated

19.02.2019, forming annexure IV to the petition. The learned counsel also submitted that the Detaining Authority while issuing impugned detention order has not even made a whisper qua earlier detention order which reflects the unawareness of the the Detaining Authority and as a consequence the impugned detention order is rendered illegal.

5. Learned counsel for respondents submits that the detention order has been passed on subjective satisfaction by the Detaining Authority and detention order is in accordance with law and, there is no violation or infringement 3 WP (Crl) no.469/2022 of rights of the detenu0065, guaranteed under the Constitution of India. Hence, he pleads that petition be dismissed.

6. It may be noticed here that this Court, in earlier petition, i.e, HCP No. quashed detention order, bearing No. 100/DMB/PSA/2018 dated 24.11.2018. The same grounds, on the basis of which the earlier detention order was made, could not have formed a ground for making a fresh detention order.

7. In this view, I am fortified by a three Judge judgement of the Supreme Court rendered in the case of Ibrahim Bachu Bafan v. State of Gujarat (1985) 2 SCC 24, wherein, their Lordships in paragraph 10 have held as under: “…The power conferred under clauses (a) and (b) of sub-section (1) of Section 11 is in fact extension of the power recognized under Section 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 Section 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. 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 in 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 Section 11(1) of the Act, the other is not known to the statute and is exercised by an authority beyond the purview of sub- section (1) of Section 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- section (2) of Section 11 is not applicable and the detaining authority is not entitled to make another order under Section 3 of the Act on the same grounds”.

8. 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 by 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 detention order because 4 WP (Crl) no.469/2022 once the Court strikes down an earlier order by virtue of a writ, 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 has been quashed by the Court, and if such grounds of detention are taken into consideration while forming subjective satisfaction by the Detaining Authority in making a fresh detention order, the order of detention will be vitiated. It is of no consequence if no fresh facts, disclosed in the grounds of impugned detention order, have been considered. Reference in this regard may be made to judgments rendered in the cases of Chhagan Bhagwan Kahar v. N. L. Kalna and others, AIR 1989 SC 1234 and Ramesh v. State of Gujarat AIR 1989 SC 1881. The Detention order, impugned herein, is, thus, liable to be quashed as the grounds of detention pressed into service by the respondent no.2 while passing earlier detention order, which were subsequently quashed by this Court, have been again put into service.

9. For the foregoing reasons, this Habeas Corpus petition is allowed and the detention Order No. 49/DMB/PSA/22 dated 25.06.2022, passed by the District Magistrate, Baramulla, is quashed. Respondents, including Jail Superintendent concerned, are directed to release the detenue forthwith, provided he is not required in any other case. Disposed of.

10. Registry to return the detention record to learned counsel for respondents against proper receipt. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 12.05.2023 Abdul Rashid, PS Whether the order is reportable: Yes/No.