Jammu & Kashmir High Court – Srinagar Bench
Arshid Ahmad Khan @ Abu Musa vs Union Territory Of J&K Through on 17 April, 2026
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 161/2025
Reserved on: 09.04.2026
Pronounced on: 17.04.2026
Arshid Ahmad Khan @ Abu Musa
S/O Mohammad Altaf Khan
R/O Wayil Wooder Gutlibagh
District Ganderbal, through
his father.
...Petitioner(s)
Through: Advocate N.A.Tabasum.
Vs.
1. Union Territory of J&K through
Principal Secretary to Govt., Home Deptt.
Civil Secretariat, Srinagar.
2. District Magistrate, Ganderbal.
...Respondent(s)
Through: Govt. Advocate Waseem Gull.
CORAM: HON'BLE MR. JUSTICE M. A.CHOWDHARY, JUDGE
JUDGMENT
1. Through the medium of this petition, the petitioner has challenged the
detention Order No. 01-DMG-PSA-2025 dated 05.04.2025 issued by
District Magistrate, Ganderbal – respondent No. 2 (for short detaining
authority) by virtue of which the petitioner (for short ‘detenue’) has
been ordered to be detained under Section 8 of the Jammu & Kashmir
Public Safety Act, 1978 (for short ‘the Act’) to prevent him from
activities prejudicial to the security of the State.
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1. It is stated in the petition that the detenue was initially arrested and was
falsely implicated in FIR No. 199/2020 registered in Police Station,
Ganderbal for the commission of offences under Sections 13, 18, 20,
23, 39 UA(P) Act and Section 7/25 IA Act, wherein he was bailed out.
Thereafter, the detenue was called by the Police Station, Ganderbal and
told that in view of incoming Independence Day and in view of ongoing
Amarnath Ji Yatra he will have to be in custody for some days,
however, the detenue was, thereafter, detained under the provisions of
J&K Public Safety Act, 1978 vide detention Order No. 03/DMG/PSA of
2023 dated 10.08.2023; that the said order of detention was challenged
by the detenue through the medium of writ petition HCP No. 116/2023
and the said order was quashed by virtue of the judgment dated
14.10.2024. It is further alleged that after 5½ months the detenue was
detained vide another detention order arbitrarily, impugned in the
instant petition; that the detenue has filed representation against his
detention but the same has not been considered by the authorities.
2. The detenue has questioned the impugned order of detention inter alia
on the grounds that the constitutional as well as procedural safeguards
as envisaged under the Constitution of India as well as under the Public
Safety Act have not been complied with by the Detaining Authority
while passing the order of detention. The material that has been relied
upon by the Detaining Authority has not been furnished to the detenue
thereby depriving him of his valuable right of making effective
representation against preventive detention. The order of detention has
been passed after a gap of not more than 06 months, as such, the order
of detention has been passed on stale grounds.
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3. Respondents have filed their counter affidavit, in which they have stated
that the detenue has been detained, pursuant to the order of detention
passed by the respondent No. 2 and while doing so, the procedural as
well as statutory safeguards enshrined under Article 22(5) of the
Constitution of India and Section 13 of the Act, have been complied
with by the respondents; that all the requisite documents have been
supplied to the detenue, so as to enable him to make an effective
representation to the Detaining Authority and to the Government. The
order of detention was executed and the detenue was taken into
preventive custody after the contents of the detention order/warrant and
the grounds of detention were read over and explained to him in the
language which he fully understood and the detenue was also informed
of his right to make an effective representation to the Detaining
Authority. The Detaining Authority found it necessary to detain the
detenue under the Act to prevent him from the activities prejudicial to
the security of the State.
4. Heard learned counsel for the parties and considered the rival
submissions.
5. Learned counsel for the detenue while reiterating the grounds of
challenge, has vehemently argued that as the subsequent impugned
order of detention has been passed substantially on the same grounds on
the basis of which the earlier detention order was passed, as such, the
order of detention is bad in law and is liable to be quashed.
6. Learned GA appearing for the respondents, ex adverso, contended that
all the documents have been served upon the detenue. He has also
contended that the detention order is legal and all procedural and
statutory safeguards have been complied with, while passing the order
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of detention, as such, the order of detention is sustainable in the eyes of
law and prayed that the same be upheld.
7. From the perusal of the material placed on file, it transpires that the
order impugned has been passed on the similar grounds as narrated in
the earlier grounds of detention on the basis of which the earlier order
of detention was passed. FIR No. 199/2020 based in both the detention
orders, as narrated in the grounds of detention, reveals that the detenue,
with regard to his past activities, was involved in the said FIR and the
investigation of the case was finally concluded into a charge sheet
which was produced before the competent court of law. It is worth to
mention here that the said FIR is of the year 2020, whereas the earlier
detention order was passed in the year 2023, meaning thereby that on
the basis of said FIR, the detention order was not found to be
sustainable. The grounds of detention of the earlier detention order have
been taken into consideration while passing the present impugned order
of detention by the Detaining Authority. The same grounds could not
have been relied upon by the respondents for issuance of the fresh
detention order.
8. The law is well settled that if the order of detention comes to an end
either by revocation or by the expiry of the period of order of detention,
there must be fresh facts for passing a subsequent order of detention.
When the detention order has been quashed by the Court, the grounds of
said detention order are not to be taken into consideration, either as a
whole or in part, even along with the fresh grounds of detention in order
to pass a fresh detention order and, if such previous grounds of
detention are taken into consideration while passing a fresh detention
order, the order of detention will be vitiated.
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9. In the judgment rendered in case ‘Chhagan Bagwan Kahar v. N.L.
Kalna, reported as (1989) 2 SCC 318′, the Hon’ble Apex Court has
discussed the above issue meticulously, relevant paragraph of the
judgment is reproduced as under :-
”12. 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. 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 rule it
nullifies the entire order.”
10. Having regard to the facts of the case that the detenue was ordered to
be detained vide impugned order on the almost same grounds, by which
he was detained earlier in the year 2023 and that order was quashed on
being challenged by the detenue vide order dated 14.10.2024 passed in
HCP No.116/2023 and the aforestated law laid down by the Apex Court
in the law of precedence reported as (1989) 2 SCC 318. It is needless to
repeat the other aspects when impugned order is found to be liable to be
quashed on the aforestated ground.
11.In view of the above, this petition is allowed. Impugned detention Order
No. 01-DMG-PSA-2025 dated 05.04.2025, is, hereby, quashed. As a
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result, detenue namely Arshid Ahmad Khan @ Abu Musa S/O
Mohammad Altaf Khan R/O Wayil Wooder Gutlibagh, Ganderbal, is
ordered to be released from the preventive custody forthwith, provided
he is not required in any other case(s).
12. Disposed of accordingly.
(M. A. CHOWDHARY)
JUDGE
Srinagar
17.04.2026
Muzammil. Q
Whether the order is reportable: Yes / No