Jammu & Kashmir High Court - Srinagar BenchSyed Asia Andrabi vs State Of J&K & Anr (2010(Ii) S. L. J on 19 May, 2011IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR         
HCP No. 160 of 2011 
Syed Asia Andrabi
 Petitioners
State & ors
 Respondents
!Mr. M. A. Qayoom, Advocate
^Mr. A. M. Magray, Advocate

Honble Mr. Justice Mohammad Yaqoob Mir, Judge 
Date: 19/05/2011
:J U D G M E N T:Vide judgment dated 24.3.2011, rendered in HCP No.244/2010, filed on behalf of
detenue, order of detention bearing No.DMS/PSA/64/2010 dated 1.9.2010 was
quashed. Subsequent thereto, detenue has again been detained vide order of detention
impugned bearing No.DMS/PSA/01/2011 dated 7.4.2011, validity of the same is
questioned.It is contended that the copy of the dossier has been reproduced verbatim in the
grounds of detention. Only word dossier is replaced by the word grounds of
detention, which according to learned counsel for the petitioner, would show that the
detaining authority has not applied its mind. Formulation of grounds is imperative for
deriving satisfaction so as to pass the preventive order. On this count, while contending
the order of detention to be invalid, learned counsel relied on the judgment captioned
Fiaz Ahmad through his Mother Atiqa Begum Vs. State of J&K & anr (2010(II) S. L. J.872), wherein, while noticing the same position and while relying on the judgment
captioned Jai Singh & Ors. Vs. State of J&K (AIR 1985 Sc 764), it was held that there
was no due application of mind by the detaining authority in passing the order of
detention.In the present grounds of detention, the grounds of detention of the earlier detention
order No.64 of 20101 dated 1.9.2010 along with few fresh facts have been taken into
consideration. Same is contended to nullify the entire order.In this connection learned
counsel has rightly placed reliance on the judgment captionedChhagan Bhagwan Kahar
Vs. N. L. Kalna and others(AIR 1989 SC 1234). Para 12 is relevant to be quoted: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.According to learned counsel for the respondents, the past conduct has to be taken into
consideration as has been done.In support thereof, learned counsel has relied on the
judgmentWasiuddin Ahmed Vs. District Magistrate, Aligarh UP and othersreported in
(1981) 4 Supreme Court Cases 521. Para 25 is relevant to be quoted:25. The past conduct or antecedent history of a person can appropriately
be taken into account in making a detention order. It is indeed usually from
prior events showing tendencies or inclination of a man that an inference is
drawn whether he is likely in the future to act in a manner prejudicial to the
maintenance of public order. Of course, such prejudicial conduct or
antecedent history should ordinarily be proximate in point of time and
should have a rational connection with the conclusion that the detention of
the person is necessary.
        It is true that the past conduct and antecedents are to be taken note of but when
the past conduct and antecedents have been taken note of in the order of detention
which has been quashed, same position could not be taken note of for deriving
satisfaction for passing the fresh order of detention as is the lawlaid down inthe
judgment AIR 1989 SC 1234referred above.In the judgment rendered in caseJahangir Khan Fazal Khan Pathan Vs. The Police
Commissioner, Ahmadabad and another(AIR 1989 SC 1812), it has been 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.
Again same position has been dealt with in the caseRamesh Vs. State of Gujarat(AIR
1989 SC 1881). Para 10 is relevant to be quoted:10. On a careful scrutiny of grounds of detention, we
unreservedly hold that the detaining authority has taken into
consideration the two criminal case mentioned under Sr. Nos.1
and 2 of the table which where the materials in the earlier
order of detention that had been quashed and that it cannot be
said that those two cases are mentioned only for a limited
purpose of showing the antecedents of the detenue.
In the grounds of detention while reproducing the earlier grounds of detention, following
paras have been added:It may be appreciated that during detention you were brought
for court production before the Honble Court of CJM Srinagar on
03/03/2011 for facing trial in case FIR No.09/2007 u/s 452, 148, 149
RPC of P/S Khanyar, Srinagar. Prior to the date of hearing and
subsequent thereto, you were lodged in Women Police, Station
Rambagh Srinagar. During your lodgment in the police station a
number of women came to meet you on 02/03/2011, 04/03/2011 and
05/03/2011. The details of the meetings between you and your
associates are given below:On 02-03-2011 some activists (wrongly written as activities) of
Dukhtarani-Milat lead by one Mst. Afroza called upon by you in womens
police station. During the meeting, you instigated them to strengthen
their carders and continue to carry on antinational activities.
On 04-03-2011 four women activists (wrongly written as activities)
lead by one Nahida Ji came to meet you in womens Police Station
and during the meeting, you again resorted to the same strategy of
arousing their anti-India sentiments by provoking them to keep their
carders ready.On 05-03-2011, similar type of activities are reported to have taken
place when some of your associates lead by one Mst. Rukaya came
to see you in Womens Police Station.It has further been learnt through reliable source that you are
contemplating to launch a fresh phase of agitation with the assistance
of your likeminded associates. In this regard you are believed to have
discussed some secret strategy with your colleagues.
During the meetings, reportedly you have stressed upon them to
continue their secessionist activities and aroused anti India sentiments
in them. You have further reported to have instigated them to
strengthen the secessionist network and to remain in a state of
preparedness for launching fresh agitation, once you are released
from jail. You are believed to have discussed some new strategy with
your colleagues and party carders regarding your designs to disturb
the public order during the coming summer. As in the past, you are
believed to be a major threat to the law and order, if you remain at
large. During the previous agitations, your activities have remained
highly objectionable and provocative and there is a well founded belief,
based on the reports, that if you are allowed to remain at large at this
stage, it will affect the maintenance of security of state adversely.
It is clear that all the aforesaid facts are relatable to the period when the detenue was in
custody in connection with earlier order of detention and it is also clear that the detenue
was not released after the earlier order of detention was quashed, instead, while in
custody, impugned order of detention was executed. whether on such grounds order of
detention is valid, has to be answered in negative in view of the lawlaid down bythe
Honble Apex Court in the judgment captionedKshetra Gogoi Vs. State of Assam(AIR
1970 SC 1664). It shall be quite relevant to quote  following sub-para of para 4 ofthe
said judgment:We have found it very difficult to appreciate how a person in
preventive custody could continue to maintain links with his
associates outside jail who had gone underground even through
his friends and relatives. If the present petitioner was able to
maintain such links, it casts a sad reflection on the persons in
charge of him while he was in custody and, in any case, it would
appear that his detention could serve no useful purpose. It
appears us to be, in fact, very doubtful whether any such contacts
could possibly have been maintained. However, even if we accept
that such links were maintained, this additional ground mentioned
does not satisfy the requirements of section 13(2) of the Act,
because the only allegation is that the links were maintained
during the period of preventive detention. Under Section 13(2)
what is required is that fresh facts should have arisen after the
expiry of the previous detention. Facts arising during the period of
detention are, therefore, not relevant when applying the provisions
of Section 13(2). In the present case, the fresh order was passed
on 28th August, 1969, a day before the expiry, and it is obvious
that no fresh facts could by that date arise and yet we held to
have arisen after the date of expiry. The order dated 28th August,
1969 was, therefore, not at all justified under Section 13(2) of the
Act and that order being in violation of the provisions of the Act
has to be held to be invalid, so that the detention under that order
is illegal. The petition is allowed. The petitioner shall be set at
liberty forthwith.
The next contention that the copies of the documents, statements and other material as
referred to in the grounds of detention, have not been supplied to the detenue, has to
be repelled as the detention record produced would indicate that the detenue has been
supplied seven leaves of the grounds of detention and 52 relevant papers, receipt of
which is acknowledged by the detenue. In this connection the judgment captioned
Thahira Haris etc. etc. Vs. Government of Karnataka & ors reported in AIR 2009 SC
2184, as relied by the learned counsel is of no help to him.
Next contention is that the order of detention has not been furnished to the detenue
which renders the order of detention as bad.In support of this contention, learned
counsel has relied on the judgments captioned Abdul Rashid Saraf Vs. State & another
(S.L. J. 1988 J&K 346) and Ghulam Muhammad Hajam Vs. State of J&K (S. L. J.1991
J&K 364). In both the two judgments it has been held that supply of detention order to
the detenue is mandatory, failure renders the detention illegal.
In the backdrop of the factual and legal position as noticed, only conclusion in-keeping
therewith is that the order of detention is unsustainable so is quashed. Detenue be
released provided not required in connection with any other case.
Detention records as produced be returned to the learned counsel for the respondents.
(Mohammad Yaqoob Mir)  
      Judge
19.05.2011
Srinagar