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Judgment
Order impugned bearing No.191/DMB/PSA/2018 dated 03.03.2018, passed by District Magistrate, Baramulla, has been questioned by the
petitioner, namely, Wasim Mehraj Farash @ Wasim Farash S/o Mehraj-U-Din Farash R/o Khanpora, District Baramulla (for brevity “Detaining
Authorityâ€), by virtue of which he has been placed under preventivedetention, on the  grounds projected in the petition.
On notice, counter-affidavit has been filed by respondents, resisting the petition.
I have heard learned counsel for parties and considered the matter.
The detention order has been challenged mainly on one of the grounds that the detenu was earlier detained in Central Jail, Kotwal Bhalwal Jammu
under Public Safety Act in terms of order No. 251/DMB/PSA/2017 dated 06.02.2017 passed by respondent No.2, which was challenged by the
detenu by filing HCP No.65/2017 and the same was allowed vide order dated 21.07.2017 with a direction to release the detenu. The aforesaid
detention order was also quashed but the detenu was not released and taken into custody in connected with FIR No.391/2016 and during custody
another detention order bearing No.96/DMB/PSA dated 07.09.2017 was passed by virtue of which he was lodged in District Jail, Kathua. It is
contended that the detention order dated 07.09.2017 was also questioned in HCP No.348/2017 and the coordinate Bench of this Court in terms of
order dated 31.01.2018 allowed the petition by directing the detaining authority to release the detenu from preventive detention and on his release, he
was again arrested in case FIR No.154/2016, Police Station, Baramulla and during the custody period another detention order slapped on him, which is
impugned in this petition lodging him in District Jail, Kathua. The ground of challenge thrown to assail the impugned detention order is that it has been
passed on the basis of allegations relating to year 2016 and such allegations were no longer relevant for passing a detention order in absence of fresh
activity, therefore according to learned counsel for the petitioner, the detention order has been passed illegally and unjustifiably. It is also contended by
the petitioner that the detaining authority has not spelled out the reasons for re-detaining the detenu on the similar allegations as were levelled against
him in earlier detention order and it has been admitted by the detaining authority that the earlier detention orders have been quashed by this Court on
the technical grounds. It is also contended that in case FIR Nos.391/2016 and 154/2016, during custody period, the petitioner has not applied for bail
before any competent court of jurisdiction. Petitioner also contends that the detaining authority has not furnished the material record like copy of
dossier, detention order, copy of FIR, seizure memo, statement u/s 161 Cr.P.C, copy of order passed in HCP No.348/2017 whereby detention has
been quashed, so that he can make an effective representation to the Government, even the respondents have also not informed the detenu that within
how much period he can make a representation to the Government or to the detaining authority. Further, neither respondent No.2 nor any body on his
behalf, has read over and explained the grounds of detention to the detenu in the language which he understands i.e., Urdu or Kashmiri. It is alleged by
the petitioner that the detaining authority has no power to pass a successive detention order on the same grounds after earlier order has been quashed.
Therefore, according to learned counsel, detention is liable to be set aside as the same is violative of Article 21 and 22(5) of the Constitution of India
and provisions of Public Safety Act.
The failure on part of detaining authority to supply material relied at the time of making detention order to detenu, renders detention order illegal and
unsustainable. While holding so, support is drawn from law laid down in Thahira Haris Etc. Etc.v. Government of Karnataka (AIR 2009 SC
2184)Union of India v. Ranu Bhandari (2008, Cr. L. J. 4567);DhannajoyDass v. District Magistrate (AIR, 1982 SC 1315);Sofia Ghulam Mohammad
Bam v. State of Maharashtra &ors(AIR, 1999, SC 3051); and Syed AasiyaIndrabi v. State of J&K &ors(2009 (I) S.L.J 219); and Union of India v.
Ranu Bhandari (2008 Cr. L. J. 4567);
Per contra, Mr. Shah Aamir, learned AAG has argued that the entire material record on the basis of which the impugned detention order is passed
has been supplied to the petitioner well in time.
It is contended in the counter affidavit that the activities of the detenu have been reflected in the grounds of detention and the same were highly
prejudicial to the sovereignty and security of the State and his remaining at large would have caused more damage to public order, and in order to curb
his activities, the detenu was detained under the provisions of Jammu and Kashmir Public Safety Act, 1978.
It is averred in the counter affidavit that detenu is deeply involved in anti-national/anti-social activities which are prejudicial to the maintenance of
public order for being affiliated with JeM Militant Outfit, as organization which has been involved in inception. It is also contended in the counter that
detenu is instigating the general public against the government and spreading anti national feelings by holding public demonstrations and to vitiate the
peaceful atmosphere prevailing in Baramulla right from the year 2008 to 2016, which lead to increase in violence and exhorted upon the youth to
indulge in stone pelting.
Learned counsel for the petitioner has relied upon the judgment dated 05.02.2008 rendered by coordinate Bench of this Court in HCP No.225/2007
titled “Mst. Zahida Vs. State of J&K and ors.â€, reported as 2008(1) S.L.J 245. It would be appropriate to reproduce paragraph No.8 of the
aforesaid judgement hereunder:-
“8. By interpreting Sub Section (2) of Section 19 of the Act, it is to be made clear that the detention order if revoked or discontinued on account of
technical defect or on account of legal defect by the authorities concerned, then it is open for the detaining authority to pass second order on the same
grounds after removal of technical defects or legal flaws but once order of detention has been quashed by the court while invoking writ jurisdiction,
then on the same grounds, fresh detention order cannot be passed. The judgment referred and relied as reported in AIR 1985 SC 697 is quite
applicable to the facts of the instant case. In the reported judgment it has been held:-
“9. The power conferred under clauses (a) and (b) of sub-s(1) of S.11 is in fact extension of the power recognized under S.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 S.11 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 is exercise of the 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 S.11(1) of the Act, the order is not known the statute and is
exercises by an authority beyond the purview of sub-section (1) of S.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-s(2) of S.11 is not applicable and the detaining authority is not entitled to make another order
under S.3 of the Act on the same grounds.
We are of the view that this seems to be the legislative scheme. The pronounced judicial view of this Court was that repeated orders of detention
are not be made. Parliament while making provision in S.1(2) of the Act, must be taken to have aware of such view and in conferring the power of
making repeated orders, safeguards have been provided under sub-s(1) by confining the exercise of power to limited situations. Clothing the
prescribed authority to exercise power under S.3 even in a situation where the Court has intervened to bring about nullification of the order of
detention would give rise to complicated situations and keeping the scheme of the section in view we are of the clear opinion that where an order is
quashed by a Court in exercise of extraordinary jurisdiction, the power of making a fresh order under sub section (2) of S.11 is not available to be
exercised.â€
From the above, it is crystal clear that the aforesaid judgment is squarely applicable to the case of the petitioner as the impugned detention order
has been passed detaining him on the same set of grounds that were made basis in earlier detention orders which were also quashed by coordinate
Bench of this Court. Â
In view of the discussions made herein above and law laid down in the judgment cited above, this petition is allowed and detention Order bearing
No.191/DMB/PSA/2018 dated 03.03.2018, passed by District Magistrate, Baramulla â€"respondent No. 2, directing detention of Wasim Mehraj
Farash @ Wasim Farash S/o Mehraj-U-Din Farash R/o Khanpora, District Baramulla, is quashed. Respondent No.2 is directed to release the detenu
from preventive detention, provided he is not required in connection with any other case. The detention record so produced be returned back to Mr.
Shah Aamir, learned AAG.
Disposed of on the aforesaid terms.