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2013 Supreme(J&K) 535

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Tashi Rabstan, J.
Nissar Ahmad Bhat -Appellant
Versus
State & Ors. -Resopndent
HCP No. 34 of 2013, IA No. 21 of 2013, 31 of 2013
Decided On : 11-09-2013

Advocates Appeared:
M.A. Qayoom, M.A. Chashoo.

Procedural safeguards in preventive detention cases are mandatory and vital, and fresh facts are required for passing a subsequent detention order.

Headnote:

Detenu - preventive detention - J&K Public Safety Act - 11.07.2008, 04.09.2009, 26.05.2010, 08.11.2012, 14.03.2013 - The detention order was challenged on the grounds that the detenu was repeatedly detained under identical grounds, which were quashed or revoked in previous orders. The court referred to various legal provisions and interpretations to emphasize that fresh facts are required for passing a subsequent detention order, and the grounds of a quashed order should not be considered for a fresh order. The court also highlighted the detenu's right to be informed of the grounds of detention and to make a representation against the order, emphasizing the importance of procedural safeguards in preventive detention cases.

Fact of the Case:

The detenu sought quashment of a detention order, arguing that the grounds of detention were repeatedly used for multiple detention orders, which were either quashed or revoked. The respondents did not file a reply, and the court found that the grounds of detention in successive orders were identical.

Finding of the Court:

The court found that the detention order was quashed as the grounds of detention were ambiguous and the detenu was not provided with the material on which the detention order was based. The court emphasized the importance of procedural safeguards in preventive detention cases.

Issues: Repeated detention under identical grounds, failure to provide material to detenu, ambiguity in the grounds of detention.

Ratio Decidendi: Fresh facts are required for passing a subsequent detention order, and the grounds of a quashed order should not be considered for a fresh order. The detenu has the right to be informed of the grounds of detention and to make a representation against the order, and procedural safeguards in preventive detention cases are mandatory and vital.

Final Decision: The petition was allowed, and the detention order was quashed. The respondents were directed to release the detenu from preventive detention.

1. Detenu - Shri Nissar Ahmad Bhat son of Abdul Rahim Bhat resident of Nai Basti, Arwani, Anantnag, through his father seeks quashment of detention order No. 82/ DMA/ PSA/ DET/2013 dated 14.03.2013, passed by District Magistrate, Anantnag (for brevity "Detaining Authority"), directing preventive detention of the detenu.

2. The detention order, through the medium of writ petition on hand, has been challenged on the grounds that the detenu was arrested on 01.12.2007 and detained under the provisions of J&K Public Safety Act by District Magistrate Srinagar vide Detention Order No. DMS/PSA/12/2008 dated 11.07.2008, which was challenged in petition - HCPNo.185/2008. The said detention order is stated to have been quashed vide order dated 27.12.2008. The detenu was not released but was produced before Sessions Judge, Anantnag on 30.07.2009 in FIR No. 131/2007 P/S Bijbehara. The detenu was directed to be released vide order dated 30.07.2009 passed by Sessions Judge, Anantnag. However, detenu thereafter was again vide Detention Order No. Det/PSA/DMA/09 dated 04.09.2009, detained, which was again challenged in HCP No. 199/2009. It is contended that during consideration of said petition, learned counsel for respondents made a statement that detention order dated 04.09.2009 was revoked, as a result thereof, the said petition - HCP No. 199/2009 was dismissed as having been rendered infructuous. It is averred that despite statement as regards revocation of detention order, the respondents did not release the detenu till another detention order No. Det/PSA/DMA/10/03 dated 26.05.2010 was slapped on detenu. The said detention order dated 26.05.2010 came to be challenged in HCP No. 225/2010, which was allowed by this Court and respondents directed to release detenu. However, according to petitioner, detenu was booked in FIR No. 216/2006. It is contended that detenu vide order dated 13.08.2012 passed on the application by Sessions Judge, Anantnag, was directed to be released but again Detention Order No. 77/DMS/PSA/DET of 2012 dated 08.11.2012 was slapped on detenu. The said detention order dated 08.11.2012 came to be challenged through medium of petition - HCP No. 170/2012. It is pleaded that while said petition - HCP No. 170/2012, was pending consideration, the impugned detention order dated 14.03.2013 came to be passed by respondent no.2.

3. Respondents, despite opportunities granted, have not opted to file their Reply. However, learned Additional Advocate General has made available the record.

4. Heard learned counsel for the parties and perused the record.

5. The first ground urged in the instant petition to assail the detention order is that the grounds of detention pressed into service to place the detenu under preventive detention, are identical to the grounds of detention in support of earlier detention orders which either were quashed or revoked. A closer look at the grounds of detention in support of detention orders dated 11.07.2008, 04.09.2009, 26.05.2010, 08.11.2012 and 14.03.2013 reveal that the grounds of detention intriguingly are identical, without any change in the sequence of events and activities attributed to detenu and the reasons that prompted detaining authority to pass detention orders.

6. The content and composition of the grounds of detention in successive detention orders remains same with only minor additions attributed to the developments subsequent to the detention orders, unmindful of the fact that the detenu all along remained in detention. Once we find the grounds of detention in support of quashed/revoked detention order(s) and one under challenge to be, in substance, identical, it is next to be seen what is its fall out on the detention order. The question surfaced in Chhagan Bhagwan Kahar v. N. L. Kalna and Others [AIR 1989 SC 1234]. The Supreme Court held:

"12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of


























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