Jammu and Kashmir High Court

HCP/248/2017 of SHARIQ MAQBOOL GANIE Vs STATE OF JK AND ORS (HOME / POLICE) on 30 December 2017

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248/2017 Page 1 of 4 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No. 248/2017 Date of decision: 30.12.2017 Shariq Maqbool Ganie vs. State of J&K and others Coram: Hon’ble Mr. Justice Janak Raj Kotwal, Judge Appearance: For the appellant/petitioner(s) : Mr. M. A . Qayoom, Adv. For

HIGH COURT OF JAMMU AND KASHMIRAT SRINAGAR

HCP No. 248/2017

Date of decision: 30.12.2017

Shariq Maqbool Ganie vs. State of J&K and others

Coram:

Hon’ble Mr. Justice Janak Raj Kotwal, Judge Appearance:

For the appellant/petitioner(s) : Mr. M. A. Qayoom, Adv. For the respondent(s): Mr. Asif Maqbool, GA

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1. Impugned in this petition is order No. 61/DMB/PSA/2017 dated 05.07.2017 issued by the District Magistrate, Baramulla, herein respondent No. 2, whereby petitioner, Shariq Maqbool Ganie, S/O Mohammad Maqbool Ganie, R/O Tawheed Gunj, Baramulla, has been taken into preventive detention under section 8(a) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act). issued by the District Magistrate, Baramulla, herein respondent No. 2, whereby petitioner, Shariq Maqbool Ganie, S/O Mohammad Maqbool Ganie, R/O Tawheed Gunj, Baramulla, has been taken into preventive detention under section 8(a) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act).

2. Common ground of both the sides is that earlier the petitioner was taken into preventive detention by virtue of order No. 213/DMB/PSA/2017 dated 09.01.2017 passed by respondent No. 2 in order to stop him from indulging in such activities, which disturb the peace and public order. The said order, however, was quashed by this Court vide judgment dated 05.06.2017 passed in HCP No. 56/2017 on the ground that after passing the order, he was not apprised of his right to submit representation against his detention to the detaining authority. preventive detention by virtue of order No. 213/DMB/PSA/2017 dated 09.01.2017 passed by respondent No. 2 in order to stop him from indulging in such activities, which disturb the peace and public order. The said order, however, was quashed by this Court vide judgment dated 05.06.2017 passed in HCP No. 56/2017 on the ground that after passing the order, he was not apprised of his right to submit representation against his detention to the detaining authority.

3. While challenging the impugned detention order dated 05.07.2017 on various grounds, it is alleged in this petition also that when the judgment dated 05.06.2017 was served on the respondents, the petitioner was shifted to Sub Jail, Baramulla and instead of releasing him from custody, he was implicated in FIR No. 54/2016 of Police Station, Sheeri. The impugned detention order is challenged on various ground inter alia that once a detention order is quashed by the court, a fresh order cannot be passed unless there are some fresh facts warranting preventive detention of the detenue. It is alleged that after detention of the earlier order, petitioner was not physically released from custody and instead he was arrested in FIR No. 54/2016 and while he was in police custody, the impugned detention order was issued. grounds, it is alleged in this petition also that when the judgment dated 05.06.2017 was served on the respondents, the petitioner was shifted to Sub Jail, Baramulla and instead of releasing him from custody, he was implicated in FIR No. 54/2016 of Police Station, Sheeri. The impugned detention order is challenged on various ground inter alia that once a detention order is quashed by the court, a fresh order cannot be passed unless there are some fresh facts warranting preventive detention of the detenue. It is alleged that after detention of the earlier order, petitioner was not physically released from custody and instead he was arrested in FIR No. 54/2016 and while he was in police custody, the impugned detention order was issued.

4. In their counter, respondents have stated that the petitioner was released in compliance to the judgment of this Court. He was, however, arrested by the police on 27.06.2017 in FIR No. 54/016. A fresh dossier was then prepared by the police, while finding that the activities of the petitioner were prejudicial to the maintenance of public order and normal law of the land was not sufficient to deter him from his nefarious activities.

5. In support of the contention that after an order of preventive detention is quashed by court, fresh order cannot be passed on the same grounds, learned counsel appearing on behalf of the petitioner relied upon Supreme Court judgment in Baidya Nath Mandi v State of West Bengal and others, (1974) 3 SCC 489. Contra argument of learned Government Advocate is that the impugned detention order was issued after a fresh dossier against the petitioner was submitted by the police and the detaining authority had arrived at a conclusion that the activities of the petitioner were highly prejudicial to maintenance of the public order in the area and his preventive detention was therefore, urgently required to stop him from indulging in such activities.

6. The copies of the grounds of detention formulated by the detaining authority, both before passing the detention order dated 09.01.2017 and the impugned detention order dated 05.07.2017, have been produced on behalf of the petitioner as annexure-B and annexure-D respectively to the petition. On a plain look on the grounds so formulated, it is clear that the impugned detention order has been passed virtually on the same grounds on which the earlier order was passed and no activity/incident in which the petitioner was involved is said to have taken place after quashing of the earlier detention order by this Court vide judgment dated 05.06.2017. On comparison of the grounds formulated at the two different times, it has been found that all the incidents right up to 01.09.2016 in which the petitioner was involved have been stated pari meteria in both. The only addition in the grounds formulated before passing the impugned detention order is that after quashing of the earlier detention order by this Court, the petitioner was arrested by police of Police Station, Sheeri on 27.06.2017 in FIR No. 54/2016 of that Police Station. Neither in the grounds so formulated nor in the counter filed on behalf of the respondents, it is evident that the petitioner had indulged in such activities, which were prejudicial to the maintenance of public order, even after his release after the earlier detention order was quashed. Contextually, it has been noticed that the respondents have not even stated in their counter as to when the petitioner was released from custody after the earlier order of detention was quashed.

7. It can, thus, be safely held that the impugned detention order has been passed on the basis of same facts on which the detention order was earlier passed and there is no allegation that the petitioner had indulged in any objectionable activity after his release from earlier detention.

8. In the authority (supra) relied upon on behalf of the petitioner, the fresh detention order was passed on the same grounds on which the earlier detention order had been passed, which had been quashed. The Supreme Court quashed the fresh order on that ground. The said authority directly applies to the case on hand so this petition is allowed and the impugned detention order is quashed and the petitioner/detenue be set at liberty, if not required in any other case.

9. Disposed of.

(Janak Raj Kotwal)

Judge

Srinagar: 30.12.2017 Rakesh

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