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Mst. Zahida v. State Of J. & K. And Ors.
Factual and Procedural Background
The petitioner, Mst. Zahida, was subjected to three detention orders under the Jammu & Kashmir Public Safety Act, 1978. The allegations against her include affiliation with the Lashkar-e-Taiba militant outfit, providing shelter to militants, and involvement in transporting arms and ammunition, including AK rifles and hand grenades. These allegations are linked to a conspiracy culminating in a suicidal attack in Sheri Kashmir Park in May 2006, after which FIR No. 51/06 was registered against her for offences punishable under Sections 302 and 307 of the Indian Penal Code.
Mst. Zahida was initially arrested in connection with the FIR and detained under the first detention order dated 30-9-2006, which was quashed by the Court on 29-12-2006. A second detention order dated 8-1-2007 was also quashed by the Court on 1-5-2007. Before her release on bail, a third detention order dated 21-7-2007 was passed against her, which is the subject of the present petition.
Legal Issues Presented
- Whether a fresh detention order can be passed on the same grounds after earlier detention orders on those grounds have been quashed by the Court exercising writ jurisdiction.
- Interpretation of Section 19(2) of the Jammu & Kashmir Public Safety Act, 1978, in relation to the permissibility of repeated detention orders following quashment by the Court.
Arguments of the Parties
Petitioner's Arguments
- All three detention orders were passed on identical grounds, which is unwarranted and impermissible.
- Relied on the Supreme Court judgment reported as (1985) 2 SCC 24 : AIR 1985 SC 697 : 1985 Cri LJ 533 to support the position that repeated detention on the same grounds after quashment is not allowed.
Respondents' Arguments
- Under Section 19(2) of the Jammu & Kashmir Public Safety Act, a fresh detention order on the same facts is permissible if the earlier order was discontinued due to a technical defect or revoked.
- Implied that the quashment of earlier detention orders does not preclude passing a fresh detention order on the same grounds.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| (1985) 2 SCC 24 : AIR 1985 SC 697 : 1985 Cri LJ 533 | Interpretation of sub-section (2) of Section 11 of COFEPOSA Act (analogous to Section 19(2) of the Jammu & Kashmir Public Safety Act) regarding revocation and quashing of detention orders; the distinction between revocation by the authority and quashing by the Court under writ jurisdiction; and the impermissibility of passing fresh detention orders on the same grounds once quashed by the Court. | The Court applied the precedent to hold that once a detention order is quashed by the High Court in exercise of writ jurisdiction, the detaining authority cannot pass a fresh detention order on the same grounds under Section 19(2) of the Public Safety Act. |
Court's Reasoning and Analysis
The Court analyzed the scope of Section 19(2) of the Jammu & Kashmir Public Safety Act by referring to the analogous provision under Section 11(2) of the COFEPOSA Act as interpreted in the cited Supreme Court judgment. It distinguished between revocation of detention orders by the detaining authority on grounds of technical or legal defects and quashing of such orders by the High Court through writ jurisdiction. The Court emphasized that while the statute permits fresh detention orders if earlier orders are revoked or discontinued due to technical defects, it does not permit fresh detention orders on the same grounds once the earlier orders have been quashed by the Court. The Court found that the earlier two detention orders against the petitioner had been quashed on substantive grounds, and the third detention order relied on substantially the same grounds, differing only in minor wording changes. Therefore, the third detention order could not survive legal scrutiny.
Holding and Implications
The Court quashed the third detention order bearing No. DMS/PSA/19/2007 dated 21-7-2007.
The petitioner, Mst. Zahida, was ordered to be released forthwith unless required in connection with any other case. The detention record was directed to be returned to the concerned Deputy Attorney General. This decision directly affects the parties by invalidating the latest detention order and securing the petitioner's release. No broader precedent beyond the application of the cited Supreme Court judgment was established.
1. After quashment of two detention orders passed against the petitioner, third detention order which is impugned in the instant petition has been passed. The gravamen of the allegations against the detenue is that she allegedly is affiliated with Lashkar-e-Taiba outfit. She has been providing shelter to the militants. She is alleged to have carried two bags containing arms and ammunition. In the month of April, 2006, a person known as Abdullah visited her house and asked her to conceal a bag containing arms and ammunition i.e 2 AK rifles and four hand grenades. Thereafter, some more hand grenades were delivered to her. So in addition to dumping the arms and ammunition, she used to transport the same. In the month of May, 2006, Lashkar-e-Taiba outfit hatched a conspiracy and carried out suicidal attack in Sheri Kashmir Park. In this connection she was contacted and was asked to hand over a bag full of arms and ammunition to one Mohd. Yousuf Dagga. On 20-5-2006, she is alleged to have handed over bag containing two rifles to Mohd. Yousf Dagga at Idd Gah and one grenade was retained at her residence. After suicidal attack was carried out case as FIR No. 51/06 was registered in Police Station, Kothi Bagh, for commission of offences punishable under Sections 302, 307 R.P.C
2. Mst. Zahida, detenu, initially had been arrested in connection with said case. Thereafter, while in custody was detained pursuant to detention order No. DMS/PSA/29 Page: 3487dated 30-9-2006. The said order of detention was quashed by this Court while disposing of HCP No. 481/06 on 29-12-2006. Again the detenu while in custody was detained pursuant to second detention order bearing No. DMS/PSA/42 dated 8-1-2007. The said detention order again was challenged through the medium of Habeas Corpus Petition No. 12/07 which was disposed of by this Court on 1-5-2007 wherein the second detention order was quashed.
3. Detenu had been granted bail in connection with FIR No. 51/06 but before she could be released, she was again detained under third detention order bearing No. DMS/PSA/19/2007 dated 21-7-2007 which is under challenge in the instant petition.
4. Heard appearing counsel for the parties.
5. Learned counsel for the petitioner highlighted that all the three detention orders have been passed on similar grounds, which is unwarranted. In support thereof, he relied on judgment (1985) 2 SCC 24 : AIR 1985 SC 697 : 1985 Cri LJ 533.
6. Appearing counsel for respondents confronted with this situation, submitted that as per Section 19(2) of J & K Public Safety Act, 1978, (hereinafter referred to as “Act”) fresh order of detention on the same facts is permissible, in case of, discontinuance of earlier order of detention on account of technical defect. Secondly, when the earlier order of detention has been revoked.
7. Though appearing counsel for the petitioner projected other grounds as find place in the petition but same are not required to be dealt with as already projected contention has the prevailing force. The question as to whether on similar grounds third detention order could be passed; requires consideration.
8. By interpreting sub-section (2) of Section 19 of the Act, it is to be made clear that the detention order if revoked or discontinued on account of technical defect or on account of legal defect by the authorities concerned, then it is open for the detaining authority to pass second detention order on the same grounds after removal of technical defects or legal flaws but once order of detention has been quashed by the Court while invoking writ jurisdiction, then on the same grounds, fresh detention order cannot be passed, the judgment referred and relied as reported in (1985) 2 SCC 24 : AIR 1985 SC 697 : (1985 Cri LJ 533) is quite applicable to the facts of the instant case. In the reported judgment it has been held:—
“9. The power conferred under clauses (a) and (b) of sub-s. (1) of S. 11 is in fact extension of the power recognized under S. 21 of the General Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of S. 11(1) of the Act are also entitled to exercise the power of revocation. When the High Court exercise jurisdiction under Article 226 of the Constitution it does not make an order of revocation. 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 is 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 S. 11(1) of the Act, the order is not known the statute and is exercises by an authority beyond the purview of sub-section (1) of S. 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, sub-s. (2) of S. 11 is not applicable and the detaining authority is not entitled to make another order under S. 3 of the Act on the same grounds.
10. We are of the view that this seems to be the legislative scheme. The pronounced judicial view of this Court was that repeated orders of detention are not to be made. Parliament while making provision in S. 11(2) of the Act, must be taken to have been aware of such view and in conferring the power of making repeated orders, safeguards have been provided under sub-s. (1) by confining the exercise of power to limited situations. Clothing the prescribed authroity to exercise power under S. 3 even in a situation where the Court has intervened to bring about nullification of the order of detention would give rise to complicaed situations and keeping the scheme of the section in view we are of the clear opinion that where an order is quashed by a Court in exercise of extraordinary jurisdiction, the power of making a fresh order under sub-section (2) of S. 11 is not available to be exercised.
9. In the reported judgment scope of sub-section (2) of Section 11 of COFEPOSA Act has been settled, said provision prescribed for revocation of detention order, which more or less is similar to sub-section (2) of the Sec. 19 of Public Safety Act.
10. Applying ratio of judgment (supra) to the facts and features of the present case, it is quite clear that detention order under challenge cannot survive because the grounds on the basis of which earlier two detention orders were passed stand quashed by this Court while disposing of HCP No. 481/06 and HCP No. 12/07. Grounds of detention are same with one difference i.e only change of words here or there.
11. Viewed thus, order of detention under challenge bearing No. DMS/PSA/19/2007 dated 21-7-2007 is quashed. Detenu Mst. Zahida W/O Nazir Ahmed Bhat, R/o Gani Stadium, Rajouri Kadal at present Narwara, Iddgah Safakadal, Srinagar, be released forthwith, if not required in connection with any other case. Detention record be returned to Mr. N.H Shah, Dy. AG concerned.
12. Petition allowed.
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