Javaid Ahmad Dar vs State and Others

Mohammad Yaqoob Mir, J.—Pursuant to detention order No. 14/DMK/PSA/09 dated 2.7.2009, passed by District Magistrate, Kulgam,

detenue has been lodged in District Jail, Kathua.

Illegality of the order of detention is projected on various grounds, particularly on the ground that earlier on similar grounds detenue was

detained pursuant to detention order No. 03/PSA of 2008 dated 11.1.2008 passed by District Magistrate, Jammu which order stand quashed by

this Court vide judgment dated 22.09.2008 passed in HCP No. 70/2008. This ground being a star ground if prevails is enough for quashing the

order of detention. Record of the earlier disposed of HCP No. 70/2008 is also called for perusal.

Grounds of detention forming base for earlier order of detention and the impugned order of detention are almost similar with small variations i.e.

some portions as contained in the earlier grounds of detention are deleted from the grounds of detention forming base for the impugned order. To

be more specific, in both grounds of detention reference is made to the position of the detenue having been appointed in IRP battalion, then having

absconded along with service weapon (AK 47 Rifle), then having joined HM outfit and thereby handing over the service weapon along 30

cartridges to the District Commander of HM against an amount of Rs. 40,000. Registration of case FIR No. 246/2007 in Police Station. Kulgam

is referred to in bom the grounds of detention. In earlier grounds of detention reference was also made to FIR No. 123/2007 which is not made in

the present grounds of detention.

The important question which arises for consideration is as to whether earlier grounds of detention which formed base for the earlier order of

detention, which stand quashed by this Court, can again be made base for passing impugned order of detention. My answer is in negative. If the

question is answered in affirmative, then a strange position will emerge i.e. passing of fresh detention order on the basis of earlier grounds of

detention would amount to negating the judgment where-under earlier order of detention has been quashed.

No doubt the government has power for making of fresh order of detention on the same facts provided continuance of earlier order of detention

on account of technical defects or order of detention has been revoked, which is permissible u/s 19 of the Public Safety Act but once order of

detention is challenged and judgment is rendered by the Court, then same facts rather grounds of detention cannot be made base for passing a

fresh order of detention. This being so, impugned order of detention on the face of it is bad.

Though the aforesaid ground is enough for quashing the order of detention, in addition thereto petitioner has not been furnished the copies of

documents relatable to FIR No. 246/2007 nor the grounds of detention have been read over and explained to the detenue, though shown to have

been read over to him but no affidavit in support thereof by the person who is shown to have read over the same to him has been filed, detenue

thereby has been deprived of making an effective and purposeful representation for showing his innocence. Resultantly valuable right guaranteed to

the detenue under Article 22(5) of the Constitution has been infringed.

For the stated reasons, the order of detention being illegal is quashed. Detenue be released forthwith provided he is not required in connection

with any other case. Record of HCP No. 70/2008 be detached.