Preventive detention orders must be based on fresh grounds and provide the detenue with all relevant materials to ensure effective representation, as per Article 22(5).

JUDGMENT :

1) The petitioner, through the medium of present petition, has sought a Writ of Habeas Corpus for quashing the detention order bearing No.DMS/PSA/27/2023 dated 12.04.2023, passed by District Magistrate, Srinagar (the detaining authority) with a view to prevent him from acting in any manner prejudicial to the security of the State. The order is, purportedly, passed by the detaining authority in exercise of powers conferred under Section 8 of the J&K Public Safety Act, 1978 (the Act of 1978),

2) The impugned order has been assailed by the petitioner, inter alia on the following grounds:

(I) That in the previous past the detenue was placed under preventive detention pursuant to detention order bearing No.DMS/PSA/32/2022 dated 09.04.2022. The said order expired on 08.04.2023 but without there being any fresh material or grounds, the impugned detention order has been passed by the detaining authority;

(II) That whole of the material on the basis of which impugned detention order has been passed has not been supplied to the detenue thereby disabling him from making an effective representation against his detention.

(III) That the impugned order of detention is based upon stale incidents having no proximate link to the activities alleged to be prejudicial to the maintenance of security of the State.

3) On being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein besides other contentions, it is submitted that detention was necessitated because of involvement of the detenue in very serious offences against the State as mentioned in the FIRs registered against him. The detenue was informed that he can make a representation to the government as well as the to detaining authority against his detention. It is further contended that all statutory requirements and constitutional imperatives have been fulfilled and complied with by the detaining authority. That the order has been issued validly and legally. The respondents have placed reliance on various judgments of the Supreme Court including Haradhan Saha v. State of W.B (1975) 3 SCC 198. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for the parties and perused the material available on record.

5) So far as the first ground urged by the learned counsel for the petitioner is concerned, the petitioner has placed on record copy of the earlier grounds of detention. A perusal of the grounds of detention that are subject matter of the instant petition and the earlier grounds of detention reveals that the same are identical, inasmuch as, the grounds of detention on both the occasions are based on same FIRs. In fact, the grounds of detention that have formed the basis of the impugned detention order reveal that there is no reference to any fresh material against the detenue.

6) The Supreme Court in the case of Chhagan Bhagwan Kahar Vs. N. L. Kalna and others, (1989) 2 SCC 318, while dealing with a similar situation, has observed as under:

“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 the period of detention, there must be fresh facts for 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.

7) Again, in the case of Jahangir Khan Fazal Khan Pathan Vs. The Police Commissioner, Ahmadabad and another, (1989) 3 SCC 590, the Supreme Court has held as under:

“……It is, therefore, clear that an order of detention cannot be made after consider