Sameer Ahmad Wani vs State of Jammu & Kashmir and others

The appellant through his father questioned Detention Order No. DMU-JC/11/PSA/1 dated 13th May 2011 of District Magistrate, Udhampur

(hereinafter Detaining Authority), whereby he was directed to be placed under preventive detention, in petition registered as HCP No. 253/2011.

The petitioner's case was that respondents in the petition while making Detention Order and executing it, had violated Constitutional and Statutory

safeguards available to the detenue. It was further pleaded that the Detaining Authority lacked power to slap Detention Order on the same grounds

on which earlier detention orders questioned in HCP No. 58/2010 and HCP No. 306/2010 were quashed by the High Court vide order dated

05.06.2010 and 08.04.2011. The petitioner insisted that the material relied upon by the Detaining Authority while passing Detention Order was

not supplied to the petitioner and that the grounds of detention being vague and sketchy, the petitioner was prevented from exercising his

Constitutional and Statutory rights in effective and meaningful manner. The respondents did not file their counter affidavit in opposition to the

petition. The Learned Single Judge vide order dated 03.12.2011 dismissed the petition observing that all the safeguards as provided under the

Constitution and J&K Public Safety Act, 1978, had been observed by respondents.

The order of Learned Single Judge, dismissing the petition is questioned in Letters Patent Appeal on hand, on the grounds that once the

respondents opted not to controvert the averments made in the petition, the right course for the Learned Single Judge was to accept the stand

taken by the petitioner and allow the petition. Learned Single Judge is said to have assumed supply of material relied upon by the Detaining

Authority to the detenue, for the reason that such material was available on the detention record. It is pleaded that as the petitioner had no access

to the detention record such assumption was misplaced. It is reiterated that the grounds of detention are vague, ambiguous and sketchy and the

petitioner has been prevented from making representation against his detention.

We have gone through the memo of Appeal, the Writ Court record as also the detention record, made available by Learned Deputy Advocate

General. We have heard counsel for the parties.

Learned Single Judge while dismissing the petition has observed that the grounds of detention and other material was supplied to the detenue on

the date of execution of detention order and that the detenue was also informed of his right to make a representation against detention. Learned

Single Judge has further opined that as per the grounds of detention the detenue was not amenable to ordinary course of law and had been rightly

detained under the provisions of J&K Public Safety Act.

It is pertinent to point out that the positive case of petitioner before the Court was that material on which reliance was placed by the Detaining

Authority to order preventive detention of the detenue was not supplied to him and that he resultantly was not in a position to represent against his

preventive detention. The averments made in the petition were not controverted by the respondents. The detention record would show that the

Detaining Authority recorded subjective satisfaction on the basis of grounds of detention wherein reference is made to alleged involvement of

detenue in case 'FIR No. 180/2004 u/s 457/380 RPC P/S Achabal; FIR No. 457/2005 u/s 457/380 RPC P/S Achabal; FIR No. 38/2005 u/s

341/383 RPC P/S Achabal; FIR No. 165/2004 u/s 457/380 RPC P/S Achabal; FIR No. 30/2005 u/s 457/380 RPC P/S Achabal; FIR No.

183/2008 u/s 379 RPC P/S Kulgam; FIR No. 104/2008 u/s 392 RPC, 7/25 A.Act P/S Dooru; FIR No. 63/2008 u/s 7/25 Act, 109 RPC P/S

Kud; and FIR No. 01/2010 u/s 18/ULS m 120B/121/RPC P/S Jammu. The detention record does not indicate that copies of First Information

Reports that weighed with the Detaining Authority or material collected during investigation was supplied to detenue. There is no mention to this

effect on the endorsement recorded by Sub Inspector Shri Keshwa Singh No. 6731/NGO P/S Udhampur Camp Jammu 'Executing Officer, on

the reverse of the detention order. The 'Receipt of grounds of detention' on which the detenue is claimed to have put his signatures in token of

receipt of material delivered at the time of execution of the Detention Order, also does not make mention of copies of the afore-stated FIRs or

other material collected during investigation. There was thus no material before the Learned Single Judge to conclude that the material relied upon

by the Detaining Authority while passing Detention Order was made available to detenue.

The Detention Order was also questioned by the petitioner on the ground that he was not informed by respondents at the time of execution of

detention order or immediately thereafter that he had a right to make a representation to the Detaining Authority against his preventive detention.

The 'Receipt of grounds of detention' which bears signature of detenue, does not indicate that the petitioner was informed by the Executing Officer

at the time of execution of detention or by any other officer thereafter that he had a right to file a representation against his detention to the

Detaining Authority pending approval of his detention by the Government u/s 8(4), J&K Public Safety Act. It is pertinent to point out that the

detenue's right to represent against his detention cannot be postponed to the stage after the approval is accorded to his detention by the

Government. The petitioner had a right to even persuade the Detaining Authority during the period between the date of detention order and the

date it was approved by the Government that his preventive detention was unwarranted and all apprehensions regarding his alleged activities were

misplaced. Learned Single Judge without going into this aspect of the case arrived at a conclusion that the petitioner was informed that he had right

to file a representation against his detention.

One of the important grounds urged by petitioner to question his preventive detention was that he had been detained by successive preventive

detention orders and all the previous orders had been quashed by the High Court in HCP No. 58/2010 and 306/2010 disposed of on 05.06.2010

and 08.04.2011 and that the detention order impugned in the petition was based on the same grounds that were made use of by the Detaining

Authority to slap previous detention orders. The averment was not controverted by respondents. However, this aspect of the case appears to have

escaped the attention of Learned Single Judge. It is settled legal position that the Detaining Authority cannot make use of grounds of detention

quashed by the Court to order detention afresh.

In Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others, , Supreme Court held:-

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.

From the above discussion it is abundantly clear that the Constitutional and Statutory safeguards available to the detenue under Article 22(5),

Constitution of India and Section 13, J&K Public Safety Act, 1978, were observed in breach. The detention order in the circumstances was liable

to be quashed.

For the reasons discussed above we allow this Appeal, set-aside the order of Learned Single Judge dated 03.12.2011 in HCP No. 253/2011.

Resultantly the detention order No. DMU-JC/11/PSA/1 dated 13th May 2011 passed by District Magistrate, Udhampur respondent No. 2,

directing detention of Shri Sameer Ahmad Wani son of Ghulam Rasool Wani resident of Hardpora, Achabal Tehsil and District Anantnag, is

quashed. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DMU-

JC/11/PSA/1 dated 13th May 2011. The respondents are directed to release the detenue from preventive detention, ordered vide order No.

DMU-JC/11/PSA/1 dated 13th May 2011.

Detention record be returned to the counsel for respondents. Disposed of