Excelsior Correspondent
Srinagar, Nov 12: The Division Bench of High Court set aside the writ court judgment upholding the detention order of a detenue and directed the authorities to release him from the preventive custody.
The detenue-Ghulam Mohammad Waza of district Bandipora was detained by the concerned District Magistrate under J&K Public Safety Act on 23.02.2024. Challenging the said detention order on various grounds before the Single Bench by way of a petition has been dismissed by the writ court and upholding his PSA.
The detenue-Waza challenged the judgment of writ court in an appeal before the Division Bench on various grounds including that writ Court has not appreciated that the petitioner-Waza had been detained earlier on the same grounds by the detaining authority on 19.05.2022, which was quashed by the Single Judge vide judgment dated 06.03.2023 and that it is not open to the detaining authority to base any subsequent detention order, on the same grounds which had been considered, while quashing the earlier detention order.
It has also been contended during the arguments of the appeal that the impugned order has been passed without application of mind, as the appellant-Waza had been discharged in a case registered vide FIR No. 67/2022 for commission of offences punishable under Section 13 UAP Act, 4-B Explosive Substances Act by the designated NIA Court of Bandipora vide order dated 03.08.2023, as such, there was no fresh material before the detaining authority to pass the impugned order of detention and the impugned order is bad in law and is liable to be quashed.
The Division Bench of Chief Justice Tashi Rabstan and Justice M A Chowdhary said the impugned detention order before the writ Court was based on the similar grounds, over which the earlier detention order has been passed, which was quashed by the writ Court. “Therefore, the impugned detention order subsequently passed on the same grounds, which has been upheld through the medium of the impugned judgment in this appeal, is liable to be interfered with”, DB recorded.
The DB added that as merely the apprehension of the detaining authority that the appellant-Waza shall disrupt the electoral activities in the area cannot be made basis for his detention to prevent him for carrying out the activities presumably prejudicial to the public order/security of State. “The appellant could have been detained for a shorter period during the election period in case so warranted under the Magisterial orders but not certainly under the preventive detention”, read the judgment.
“Viewed thus, having regard to the factual background and the law applicable, the appeal is allowed. The impugned judgment dated 30.08.2024 passed by the writ Court is set-aside. The petition moved by the appellant/petitioner is allowed. The appellant is ordered to be released forthwith, in case, he is not required in any other case”, DB concluded.
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