Grounds Of Detention Mentioned In An Order That Was Quashed By Court Can't Be Considered To Pass Fresh Detention Order: J&K&L High Court

A bench of Justice Sindhu Sharma observed:

"If a detention order is quashed, the grounds of the order so quashed cannot be taken into consideration either in whole or in part or even along with the fresh grounds of detention for drawing subjective satisfaction to pass fresh order of detention."

The Petitioner herein had challenged his detention on several grounds, including that he was placed under detention earlier vide order dated January 24, 2019 and March 19, 2017. These orders were however quashed by the High Court in the habeas corpus petitions and thereafter, no such fresh activity was alleged against him to warrant an order of detention.

It was further contended that he was not provided all the material relied upon by the Detaining Authority while passing the order of detention, thus, preventing him from making an effective representation and resulting in infraction of Article 22(5) of the Constitution and Section 13 of the J&K Public Safety Act.

At the outset, the High Court relied on Chhagan Bagwan Kahar vs. NL Kalna & Ors., 1989 AIR 1234, where it was held that 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 for drawing the requisite subjective satisfaction to pass a fresh order. This is because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order.

Next, the Court noted that the Detaining Authority's failure to provide him the material relied upon at the time of passing of the order of detention has rendered the detention illegal.

Accordingly, it allowed the petition and quashed the detention order.