Srinagar: The High Court of J&K and Ladakh quashed detention order of brother of slain separatist leader, Maqbool Bhat after court noticed that there are no fresh grounds of detention and there is a delay of seven months in executing the detention order without any explanation provided by detaining authority.
Justice Sanjay Dhar struck down the detention order passed by district magistrate Kupwara against Zahoor Ahmad Bhat, a resident of Trehgam village, Kupwara by recording that the detaining authority has passed the fresh detention against the detenue based on earlier detention order.
Justice Dhar said, “A perusal of the grounds of detention which are subject matter of instant petition and the grounds of detention which were subject matter of earlier detention order reveals that they are identical and, in fact, more or less Xerox copies of each other.”
While giving reference to Supreme Court directions in case titled Chhagan Bhagwan Kahar Vs. N. L. Kalna and others, (1989) 2 SCC 318, while dealing with similar question, has observed as under:
“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.”
Court said 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 either expired or has been quashed by a Court.
“This alone can render the detention illegal,” Justice Dhar said.
With respect to execution of the detention order, Court said that the detention order was issued on 28 June, 2023 but the same has been executed on 21, January 2024 that is after a period of about six months.
“There is no explanation on the part of respondents regarding delay in execution of the detention order. Even the record produced by the respondents does not offer any explanation for delayed execution of the order of detention,” court said.
Justice Dhar said In fact, even in their counter affidavit the respondents have not offered any explanation whatsoever regarding delayed execution of the order of detention.
Court also recorded the fact that the detention order has not been executed by the respondents for about seven months shows that there was no urgency for taking resort to preventive detention of the petitioner.
“There was sufficient time with the respondents to take resort to normal criminal laws, if at all they wanted to proceed against the petitioner,” court said.
“The unexplained delay in execution of the warrant of detention upon the petitioner renders the subjective satisfaction of the detaining authority doubtful. Consequently, the impugned order of detention has been rendered unsustainable in law,” court said and directed.
Justice Sanjay Dhar while allowing the petition quashed the detention order and a direction was issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case.
The detainee, Zahoor Ahmad Bhat was detained in 2022 and was lodged in Haryana jail. He was represented by Advocate Bashir Ahmad Tak before court.