Grounds for detention mentioned in an order that has been overturned by the court cannot be considered a new detention order: J&K&L High Court

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The High Court of Jammu and Kashmir and Ladakh recently observed that once a preventive detention order is revoked, the grounds for detention mentioned in that order cannot be considered, either as a whole or in party, for the purpose of enacting further suppression orders.

A bench of Judge Sindhu Sharma observed:

If a detention order is revoked, the grounds for the order so revoked cannot be considered, either in whole or in part, or even together with the new grounds for detention to derive subjective satisfaction from passing a new detention order. .

The applicant challenged his detention on several grounds, including that he was taken into custody earlier under orders dated 24 January 2019 and 19 March 2017. These orders were however overturned by the High Court in habeas corpus applications and subsequently no further such activity. was alleged against him to warrant a detention order. .

It was alleged that his detention was based on the same grounds on which previous detention orders had been issued and overturned.

It was further alleged that he had not received all the elements on which the detaining authority relied when issuing the detention order, thus preventing it from making an effective representation and leading to a violation of Section 22(5) of the Constitution and Section 13 of the J&K Public Safety Act.

Initially, the High Court relied on Chhagan Bagwan Kahar v. NL Kalna & Ors., 1989 AIR 1234, where it was held that where a detention order is quashed by the Court issuing a high prerogative order such as habeas corpus or certiorari, the grounds for such order shall not be taken into consideration in order to derive the subjective satisfaction required to render a new order. This is because once the Court reverses a previous order by issuing a rule, it voids the entire order.

Next, the Court noted that the fact that the detaining authority did not provide him with the elements on which he relied when issuing the detention order rendered the detention illegal.

Accordingly, he granted the request and quashed the detention order.

Case title: Reyaz Ahmad Dar V/s UT from J&K and another

Click here to read/download the judgment

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