The High Court has quashed the detention orders (37th Public Safety Act (PSA)) of incarcerated chairman of Muslim League Jammu Kashmir, Masrat Alam Bhat and directed State authorities to release the detenu from preventive detention.
While quashing the detention orders of Masrat Alam, the Court of Justice Rashid Ali Dar directed respondents to release the detenu from preventive detention, provided he is not required in connection with any other case.
Justice Dar remarked that the detention record testifies the fact that the detention order has been passed during the currence of earlier order of detention.
“The detention orders reveal that the content and composition of the grounds of detention in successive detention orders remains same with only minor additions attributed to the developments subsequent to the detention orders, unmindful of the fact that the detenu all along remained in detention,” Dar said.
On 13 November 2018 District Magistrate Baramulla passed the detention orders of Alam while directing his preventive detention.
The uncle of the petitioner challenged the detention orders and sought quashment of the same through petitioner counsel Mian Qayoom.
Mian Qayoom that at the very prelude, the question to be determined is as to whether fresh detention order could be passed when earlier detention order was in force
He submitted that fresh detention order passed on 13 November 2018 makes substantial reference of earlier incidents and FIRs for justifying the fresh detention of the petitioner which, according to him, could not be done. He also submitted that the mention in the grounds of detention that “you have managed bail in FIR No.53/2013 U/S 13 ULA (P) Act” is “derogatory” to judicial system and ought not to have been used in the grounds of detention.
“The only addition of FIR No.52/2017 U/S 13 ULA(P) Act regarding the incident that Police Station, Baramulla, received an information to the effect that detenues, namely, Bashir Ahmad Sofi, Tariq Ahmad War along with other associates who are lodged in District Jail, Baramulla, were advocating secessionist/anti national sentiments among the jail inmates and have discussed the future strategy with them for carrying out illegal activities, could in no case be relied by the District Magistrate Baramulla to derive subjective satisfaction,” Qayoom submitted. The petition states that the order of preventive detention is admittedly an invasion on the legal and fundamental rights of a person. “Such an order cannot be passed by the detaining authority on his ipse-dixit (assertion without proof).”
It says that when a person has been booked in a substantive offence, he has to be tried under the normal law and if the allegations levelled against him are proved, he can be punished. “Preventive law being not a substitute for the normal law, therefore, it cannot be resorted to by the detaining authority to avoid the prosecution of the said person under ordinary law,” reads the petition. The petition states that in the instant case, the respondents having registered 20 cases against the detenu, therefore, “they were obliged under law to file the police reports against the detenu before the appropriate court and produced evidence against him so as to sustain the allegations levelled against him. The respondents having not done so and instead they have detained the detenu under the PSA.”
It further states that it is a well settled proposition of law that when a person is booked in a substantive offence, the State can oppose his release on bail and even when the bail application is opposed, the person is granted bail, that order of granting bail can be challenged before the higher forum but he cannot be detained under PSA.
“In the instant case, even though, the detenu has been shown booked in 20 cases and in most of the cases, he having not obtained bail, and the cases in which he has been granted bail having not been challenged by the respondents, therefore, there was no justification for District Magistrate Baramulla to detain the detenu under the provisions of PSA,” petition reads.
The respondents on the other hand termed the challenge of the order as misplaced, misdirected and misconceived both in law as well as on facts. “The preventive detention of the detenu is neither illegal nor unconstitutional. There is no other purpose behind detention of the detenu other than the one to prevent him from acting in any manner harmful to the maintenance of security of the State because the detenu has been found advocating secession of the State from the Union of India and indulging in anti-national activities,” the respondents submitted.
The respondent counsel further submitted that a number of cases stand registered against the detenu, from which it is quite clear that the detenu has been a “chronic and habitual” in resorting to activities, “which are highly prejudicial to the maintenance of the security of the State.”
Court after perusing the records remarked that the Constitution of India – Article 22(5) and Section 13 of J&K Public Safety Act 1978, guarantee two important safeguards to the detenu – the detenu is informed of grounds of detention that prompted the detaining authority to pass the detention order and second that the detenu is allowed to represent against his/her detention immediately after the detention order is made or executed.
“The Constitutional and Statutory safeguards guaranteed to the detenu are to be meaningful only if the detenu is handed over the material referred to in the grounds of detention that lead to subjective satisfaction that the preventive detention of detenu is necessary to prevent him from acting in any manner prejudicial to the security of the State of public order,” Justice Dar remarked.
The judgment reads that it is ensured that the grounds of detention are not vague, sketchy and ambiguous so as to keep the detenu guessing about what really weighed with the detaining authority to make the order.