In an observation that can bring relief to thousands of Kashmiris incarcerated under the Public Safety Act, the Jammu and Kashmir High Court has said: “that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the court”.
A single-judge bench of the high court made the observation while quashing the Public Safety Act detention of Mushtaq Ahmad Wani, a resident of Kokernag in Anantnag district.
A bench of Justice Sanjay Dhār also referred to Supreme Court judgment to underline that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the court.
In simple terms, the high court said that police need to produce fresh evidence to impose PSA if an earlier PSA was quashed by the court.
“If such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated,” the court said, adding, “It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered,” the high court judge said while quashing Wani’s detention.
Referring to another judgment by the Supreme Court, Justice Dhar observed that “even if the order of detention comes to an end either by revocation or by the expiry of the period of detention, there must be fresh facts for passing a subsequent order”.
Hundreds of Kashmiris are booked under PSA, which allows detention up to two years without trial, and the ‘lawless law’ is reposed on them even after the court quashes it.
“A fortiori 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 either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing the rule, it nullifies the entire order.”
Subsequently, the high court quashed the impugned order of detention against Wani which was passed by Deputy Commissioner Anantnag on 7th July 2020.
“Direction is issued to the officials to release Wani from the preventive custody forthwith, provided he is not required in connection with any other case.”