WP(Crl) No.161/2023 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 13.02.2025 Pronounced on:21.02.2025 WP(Crl) No.161/2023 ADIL SIRAJ MISGER ...Petitioner(s) Through: -Ms. Rehana, Advocate. Vs. UT OF J&K & OTHERS …Respondent(s) Through: -Mr. Syed Musaib, Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. 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 WP(Crl) No.161/2023 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. WP(Crl) No.161/2023 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 considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.” WP(Crl) No.161/2023 8) From the aforesaid enunciation of law on the subject, it is clear that unless there are fresh grounds of detention, a person cannot be put under preventive detention on the basis of the grounds of detention which have formed basis of an earlier detention order that has been quashed by a Court. The ratio laid down by the Supreme Court in the afore cited two cases squarely applies to the facts of the instant case. In fact, in the instant case not only once but on two earlier occasions, the Court has quashed the detention orders against the petitioner and on both these occasions, the detention orders were based on the same material as is the basis of the order of detention, impugned herein. Thus, the impugned order of detention cannot be sustained in the eyes of law. 9) So far as the next ground of challenge is concerned, a perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 26.04.2023. Report of the Executing Officer in this regard forms part of the detention record, a perusal whereof reveals that it bears the signature of the petitioner and according to it, copy of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related relevant documents (10 leaves), total 15 leaves, have been supplied to him. 10) If we have a look at the grounds of detention, it bears reference to as many as twelve FIRs viz. FIR Nos.75/2008, 12/2010, 43/2010, 49/2010, 96/2015, 67/2016, 93/2016, 94/2016, 96/2016, 52/2017, WP(Crl) No.161/2023 19/2019 all registered at P/S Rainawari and FIR No.51/2017 of P/S Nowhatta. It was incumbent upon the respondents to furnish not only copies of the FIRs but also the statements of witnesses recorded during investigation of the said FIRs and other material on the basis of which petitioner’s involvement therein is shown, which has not been done. All this material would run in hundreds of pages and it is impossible that all this material would be covered in only ten leaves. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Even the copy of the dossier of detention has not been supplied to the petitioner. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 11) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. WP(Crl) No.161/2023 While holding so, I am fortified by the judgments rendered in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440. 12) Next it has been contended by learned counsel for the petitioner that the impugned order of detention has been passed on the basis of stale incidents having no proximate link with the activities alleged to be prejudicial to the maintenance of security of the State. 13) A perusal of the grounds of detention reveals that the incidents referred therein pertain to the years 2008, 2010, 2015, 2016, 2017 and 2019, that is more than seventeen years, fifteen years, ten years, nine years, eight years and six years prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incidents. 14) The Supreme Court in the case of Sama Aruna v. State of Telengana and & anr, (2018) 12 SCC 150, while holding that the incidents which are said to have taken place long back, cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under: “17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant WP(Crl) No.161/2023 for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.” From the aforesaid enunciation of the law on the subject, it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of public order. In the instant case, the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained. 15) For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. Further custody of the detenue shall be regulated in accordance with the orders as may be passed in the criminal cases registered against him. 16) The detention record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 21.02.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 21.02.2025 12:41