Grounds In Detention Order Quashed By Writ Court Can't Be Considered While Passing Fresh Detention Order: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High has ruled that when a Court quashes a detention order using a high prerogative writ, the grounds of the previous order should not be considered, either in whole or in part, when determining new grounds for detention. This is because when the Court strikes down an earlier order with a writ, it renders the entire order null and void, it clarified.

Justice Moksha Kazmi Khajuria made these observations while hearing a Habeas Corpus petition seeking quashing of detention order passed by the respondent No. 2-District Magistrate, Pulwama (Detaining Authority), whereby the petitioner detenue had been taken into preventive custody by invoking the powers under Section 8 of J&K Public Safety Act and lodged in Central Jail (Kotbalwal), Jammu.

Challenging the detention order, counsel for petitioner argued that the allegations and the grounds pressed into service have already been made use of by the Detaining Authority in the earlier detention order, which was quashed by the High Court vide judgement dated March 1, 2021.

Dealing with the matter the bench observed 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 detention order. It added,

"An order of detention cannot be made after considering previous grounds of detention when the same have been quashed by the Court, and if such grounds of detention are taken into consideration while forming subjective satisfaction by the Detaining Authority in making a fresh detention order, the order of detention will be vitiated. It is of no consequence if further fresh facts, disclosed in the grounds of impugned detention order, have been considered."

To fortify this position, the bench found it worthwhile to record the observations of Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat (1985) 2 SCC 24:

"By issuing a high prerogative writ like habeas corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by Section 11(1) of the Act"

Thus, the bench quashed the detention order observing that the grounds of detention pressed into service by the respondent no.2 while passing earlier detention order, which were subsequently quashed by the Court, had been again put into service.

Case Title: Showkat Ahmad Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 124

Counsel For Petitioner: Mr R. A. Jan, Sr. Advocate with Mr. Aswad Attar, Advocate.

Click Here To Read/Download Judgement