1. Order of detention bearing No.DMA/PSA/DET/2012 dated 18.08.2012, passed by respondent No.2, is under challenge in this petition.

2. Detenue, Fayaz Ahmad Ward, is stated to have been taken into custody in the month of December, 2010 in connection with case FIR No.331/2010 P/S An-antnag. While in custody has been lodged in District Jail, Kathua pursuant to order of detention bearing No. Det/PSA/DMA/10/28 dated 05.01.2011. The said deten#31;tion order has been quashed vide judgment dated 10.06.2011 while disposing of HCPNo.100/2011.

3. It is stated that the detenue was not released but instead was again detained vide detention order No.61/DMA/PSA/DET/11 dated 22.09.2011 and lodged at District Jail, Udhampur. Again this order was quashed vide order dated 30.3.2012 while disposing of HCP No.358/2011 but in compliance to the said order was not released and was taken into custody in connection with case FIR Nos.39/2008, 437/2010 and 431/2004. Now again pursuant to order of detention impugned dated 18.8.2012 has been lodged in Central Jail, Kathua.

4. Contention of the learned counsel for the petitioner is that the grounds of detention which formed base for the earlier orders of detention cannot be made base for the impugned order of detention. Once the detention orders are quashed, whatever grounds which formed base, in law, cannot be used for passing fresh order of detention unless fresh facts, as would emerge after release of the detenue from the custody which, are such which would warrant detention but when the detenue is never released, there could be no new facts which would form base for the grounds of detention. In this connection, learned counsel placed reliance on the judgments reported in AIR 1974 SC 1155 and AIR 1974 SC 432. In the said judgments the principle, as has been laid down, is that fresh order of detention on same grounds on which earlier order was passed, is illegal. It has also been settled that fresh detention can be ordered only on fresh facts.

5. In the judgment captioned Kshetra Gogoi v. State of Assam, reported in AIR 1970 SC1664, the fresh order of detention was passed on the basis of grounds mentioned in the expired order with fresh ground that the detenue during his detention under the expired order had been maintaining links with his associates. It shall be quite relevant to quote following portion from para 4 of the judgment:

"Under Section 13(2) what is required is that fresh facts should have arisen after the expiry of the previous detention".

6. The grounds of detention forming base for the impugned order of detention would reveal that the detaining authority has given details of the earlier activities based on which earlier detention orders were passed and finally for sake of brevity has recorded as under:

"Whereas, the detention order has been quashed by the Hon'ble High Con rt vide HCP No.358/2011 dated 30.03.2012 and there is every possibility that you will again indulge in anti-national/subversive activities and will create law and order problem in the District. Your remaining at large will prove detrimental to the security of the State in general and safety of the general masses in particular.

Whereas, your release on bail will definitely disturb peace and tranquility in the valley in general and District Anantnag in particular.

Whereas, you are presently under Judicial and faces trial in case FIR No:39/2008 U/S 7/25 A. Act, 437/2010 U/S 7/25 A. Act and 431/2004 U/S 7/25 A. Act of P/S Anantnag;

Therefore, it is clear that your activities are highly prejudicial to the security of the State and maintenance of public order and warrants immediate preventive measures to be taken against you;

On the basis of the aforementioned activities, I have reached to the conclu#31;sion that it would be expedient to detain you under the provisions of J&K Public Safety Act, 1978, for which orders are being issued separately."

7. Reference to the past history/circumstances is no bar but for justifying the fresh detention

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