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Judgment
Mazhar Ali Shah, J.—All the above quoted three petitions arise out of the order of detention passed by District Magistrate, Anantnag u/s
8(2) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter called the Act). In all the three petitions identical questions of fact and law
have been raised, thus all the three petition' are heard and disposed of together. In the abovesaid three petitions respectively, following are the
detenus:
(1) Abdullah Teli s/o Qadir Teli r/o Akhal Tehsil Kulgam, detained vide Order No. 1907-ST/85 dated 18-3-1985. Subsequent to the said order
of detention, another order of detention on the similar grounds has been passed by District Magistrate against the detenu u/s 8 of the Act read with
Clause (2) of the Ordinance No. 11 of 1984 vide Order No. 76/ST/85 dated 4-4-1985, which has been brought on record vide application filed
on 31-5-1985 and is a part of the present petition.
(ii) The detenu Gani Parray s/o Ramzan Parray r/o Khulshan Akhal Tehsil Kulgam has been detained under the provisions of the Act by District
Magistrate, Anantnag vide Order No. 1289/ST dated 21-11-1984. Subsequent to the said order of detention, another order of detention has
been passed vide No. 26/ST/85 dated 4-5-1985 u/s 8 of the Act read with Clause (2) of the Ordinance No. 11 of 1984 on the grounds annexed
with the order against the detenu, which has been brought on record by an application dated 31-5-1985.
(iii) The detenu Mohiuddin Teli s/o Moma Teli r/o Akhal Tehsil Kulgam has been detained by District Magistrate, Anantnag under the provisions of
the Act vide Order No. 1276-ST dated 22-11-1984. Subsequent to the said order the District Magistrate passed another order against the
detenu vide No. 59/ST/85 dated 4-4-1985 u/s 8 of the Act read with Clause (2) of the Ordinance No. 11 of 1984 on the grounds annexed with
the order of detention, which has been brought on record by an application dated 31-5-1985.
In all the three abovesaid petitions, District Magistrate, Anantnag has filed the counter-affidavit without filing any annexures with his affidavits, on
which a reference is made. The counter-affidavits filed in all the three petitions concentrate only on the subsequent orders passed referred to above
respectively without making any reference of the orders earlier passed against the same detenus, which are subject-matter of the writ petition. It is
also not mentioned in the affidavits of, the District Magistrate that he was aware of the previous orders under which the detenus were already in
detention at the time when the subsequent orders were passed. There is no mention worth the name about the allegations made in the writ petition
controverting the averment: all the allegations are..simply denied by saying:
The contentions raised by the petitioner in the petition from paras 4 to 5 and are, therefore, totally misconceived, untenable and without any
substance. The contentions/averments made by the petitioner which run contrary what has been stated by him are vehemently denied.
I am not inclined to accept the contention of the learned Counsel for the respondents that there was no necessity for controverting the facts relating
to the previous orders passed.
Heard learned Counsel for the respective parties on the merits of the petitions. No record has been produced for perusal of the court by the
learned Government Advocate. He states that the same could not be procured despite his efforts. To find out the fact whether the District
Magistrate was aware of the detention of the detenus while passing the subsequent order, it was necessary for the respondents to produce the
record or to explain in the affidavit in the absence of which it is difficult to hold that there was a proper application of mind. Learned Counsel for
the petitioners relying on an authoritative pronouncement of their Lordships of the Supreme Court reported in Avtar Singh and Others Vs. State of
Jammu and Kashmir and Others, submits that the order of detention is liable to be quashed simply on the ground that from the subsequent order or
even from the affidavit of the District Magistrate it is not clear that the detaining authority was aware of the fact that the detenus were already in
detention for some months, thus the authority Avtar Singh and Others Vs. State of Jammu and Kashmir and Others, is applicable with full force in
the present cases on the basis of which alone the orders of detention are liable to be quashed. Learned Counsel for the respondents on being
asked even could not point out that the previous order passed against the detenus were revoked and at the time when the subsequent order has
been passed they were free at large or that the District Magistrate found it necessary to continue the detention of the detenus for the reasons best
known to him, which are not disclosed by the affidavits. In order to support his contention on the plea that on the same and similar grounds the
detention order may be passed subsequently and the same shall not be liable to be quashed on the ground of vagueness of the grounds, he refers to
the larger bench authority of their Lordships of the Supreme Court reported in Ujagar Singh Vs. The State of The Punjab, and Masood Alam etc.
Vs. Union of India (UOI) and Others, . On going through the authorities, I find that the authorities are distinguishable. It is true that a subsequent
order of detention mentioning same grounds as in prior order of detention of detenus who all were in Jail, subsequent order cannot be said to be
mala fide, but the fact remains as held by their Lordships in Ujagar Singh Vs. The State of The Punjab, :
If the authority satisfied himself that the original ground was still available and that there was need for detention on its basis, no mala fides can be
attributed to the authority from this fact alone.
In the authority cited Masood Alam etc. Vs. Union of India (UOI) and Others, , it is further held by their Lordships of the Supreme Court with
reference to Section 14 of the Maintenance of Internal Security Act, 1971:
The principle underlying this section has its roots in the vital importance attached to the fundamental right of personal liberty guaranteed by our
Constitution. The Act fixes the maximum period of detention to be 12 months from the date of the detention with the proviso that the appropriate
Government can revoke or modify the detention order at any earlier time: Section 13. It is to effectuate this restriction on the maximum period and
to ensure that it is not rendered nugatory or ineffective by resorting to the camouflage of making a fresh order operative soon after the expiry of the
period of detention.
From the ratio of the abovesaid pronouncements, I am of the opinion that the contention of the learned Counsel for the respondents has no legs to
stand on in order to support the subsequent order of detention, it is imperative for the District Magistrate to show that he was aware of the earlier
detention and that after considering the circumstances he found it necessary to continue the detention of the detenus, it is not possible to uphold the
detention. Relying on the authoritative pronouncements of their Lordships in Avtar Singh and Others Vs. State of Jammu and Kashmir and Others,
, I find from the reading of the grounds of detention in the present case, it is nowhere indicative that the detaining authority was aware that the
detenus were already in detention for some months; nor does it indicate whether the detaining authority considered the question whether further
detention of the detenus was necessary in the circumstances. Thus I find force in the contention of the learned Counsel for the petitioners that both
the orders referred to above detaining the detenus respectively in all the three cases are liable to be quashed.
For the reasons stated hereinabove, both the orders referred to above in the petitions respectively detaining the detenus under the provisions of
the Act read with Ordinance are hereby quashed. It is directed that all the three detenus referred to in the petitions respectively be released
forthwith and be set at liberty if not wanted in any other cases.