WP(Crl)/177/2019 of ASIF AHMAD BHAT Vs STATE OF J AND K AND ORS. (HOME DEPARTMENT) on 31 December 2019

JUDGEMENT

1. Challenge in this petition is thrown to the Order no.16-DMK/PSA of ––2019 dated 30.04.2019, passed by District Magistrate, Kuwpararespondent no.2 herein, whereby Asif Ahmad Bhat son of Abdul Gani Bhat resident of Shalgund, Lalpora, Lolab District Kupwara (for brevity the “detenu”), has been placed under preventive detention, on the grounds set out in the petition in hand. respondent no.2 herein, whereby Asif Ahmad Bhat son of Abdul Gani Bhat resident of Shalgund, Lalpora, Lolab District Kupwara (for brevity the “detenu”), has been placed under preventive detention, on the grounds set out in the petition in hand.

2. Counter affidavit has been filed by the respondents, vehemently resisting the petition. the petition.

3. Heard the learned counsel for the parties and considered the matter.

4. Apart from other grounds of challenge taken by the petitioner in the petition on hand, the ground which is strenuously urged is that the detention of the detenu on the selfsame grounds on which earlier detention order had been passed and subsequently quashed by this Court, was sheer abuse of police power by the State. petition on hand, the ground which is strenuously urged is that the detention of the detenu on the selfsame grounds on which earlier detention order had been passed and subsequently quashed by this Court, was sheer abuse of police power by the State.

5. Perusal of the file reveals that in view of the active involvement of the detenu in the activities prejudicial to the maintenance of public order, he was placed under preventive detention vide Order no.11-DMK/PSA of 2018 dated 18.09.2018. Ostensibly, while passing the aforesaid detention order, the activities of the detenu indulged till 18.09.2018, had been taken note of. It is not disputed that the aforesaid order of detention could not stand scrutiny of this Court and the same was quashed by this Court vide judgement dated 17.04.2019, passed in HCP no.339/2018. What prompted the Detaining Authority to pass a fresh order of detention, impugned in the petition, is anybody’s guess. There is, however, bald detenu in the activities prejudicial to the maintenance of public order, he was placed under preventive detention vide Order no.11-DMK/PSA of 2018 dated 18.09.2018. Ostensibly, while passing the aforesaid detention order, the activities of the detenu indulged till 18.09.2018, had been taken note of. It is not disputed that the aforesaid order of detention could not stand scrutiny of this Court and the same was quashed by this Court vide judgement dated 17.04.2019, passed in HCP no.339/2018. What prompted the Detaining Authority to pass a fresh order of detention, impugned in the petition, is anybody’s guess. There is, however, bald assertion in the grounds of detention suggesting that normal law of the land has not deterred the detenu from indulging in subversive activities prejudicial to the maintenance of public order. There is absolutely no mention in the grounds of the detention with regard to any activity the detenu has indulged in or continued with after quashment of his earlier detention order dated 17.04.2019.

6. For the foregoing reasons and in view of the settled legal position, the fresh order of detention on the selfsame grounds is vitiated in the law and, therefore, can not sustain. This view is supported by a three Judge judgement of the Supreme Court rendered in the case of Ibrahim BachuBafan v. State of Gujarat (1985) 2 SCC 24. While noticing similar provisions of the Conservation of Foreign Exchange and provisions of Smuggling Activities Act 1974 (COFEPOSA), Supreme Court in paragraph 10 has held thus: fresh order of detention on the selfsame grounds is vitiated in the law and, therefore, can not sustain. This view is supported by a three Judge judgement of the Supreme Court rendered in the case of Ibrahim BachuBafan v. State of Gujarat (1985) 2 SCC 24. While noticing similar provisions of the Conservation of Foreign Exchange and provisions of Smuggling Activities Act 1974 (COFEPOSA), Supreme Court in paragraph 10 has held thus:

“ …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”.

7. This judgement was subsequently followed by the Supreme Court in the case of ChhaganBagwanKahar v. N. L. Kalna&Ors, 1989 AIR 1234. Referring to the earlier judgement in Ghulam Nabi Zaki v. State of Jammu and Kashmir, 1970 (3) SCR 35: 1971 CriLJ (N) 24, which was rendered in the context of the J&K PSA and also taking note of the Constitution Bench judgement in the case of HadibandhuDass v. District Magistrate Cuttak (1969) 1 SCR 227, the Supreme Court in the case supra concluded thus:

“… It emerges from the above authoritative judicial pronouncements that even if the order of detention come to an end either by revocation or by expiry of the period of detention there must be fresh facts of 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. In the present case, no doubt, the order of detention contains fresh facts. In addition to that the detaining authority has referred to the earlier detention order and the judgement of the High Court quashing it, presumably for the purpose of showing that the detenu in spite of earlier detention order was continuing his bootlegging activities”.

8. It is, thus, seen that the detaining authority while arriving at subjective satisfaction has not only taken into consideration the future prospectus of the detenu indulging in similar activities but has also taken into consideration the grounds on which the earlier order of detention dated 18.09.2018 had been passed. The judgement referred to above lends support to the contention of the learned counsel for the petitioner that the detention order without fresh material, is not sustainable. satisfaction has not only taken into consideration the future prospectus of the detenu indulging in similar activities but has also taken into consideration the grounds on which the earlier order of detention dated 18.09.2018 had been passed. The judgement referred to above lends support to the contention of the learned counsel for the petitioner that the detention order without fresh material, is not sustainable.

9. For the foregoing reasons, the petition is disposed of and detention Order no.16-DMK/PSA of 2019 dated 30.04.2019, passed by District Magistrate, Kupwara, is quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of. no.16-DMK/PSA of 2019 dated 30.04.2019, passed by District Magistrate, Kupwara, is quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.

10. Detention record be returned to learned counsel for respondents.

Srinagar31.12.2019 Ajaz Ahmad, PS

(Sanjeev Kumar)

Judge

Whether the order is speaking: Yes Whether the order is reportable: Yes/No.