Srinagar, Feb 15: The High Court of Jammu & Kashmir and Ladakh quashed detention of three persons under Public Safety Act (PSA) and directed the authorities to release them immediately if they were not required in any other case.
Allowing separate habeas corpus pleas, the court of Justice Sanjay Dhar quashed detention orders against Irfan Mehraj Bhat of Anantnag, Khalid Nazir Wagay and Waseem Maqbool Bhat of Kulgam district.
Mehraj Bhat, who was booked under PSA on February 14, 2022 for allegedly providing logistical support to militants, challenged his detention through counsel Wajid Haseeb on the ground that detaining authority passed the detention order mechanically without application of mind and the grounds of detention are vague.
Haseeb contended that the petitioner made a representation before the Detaining Authority but the same has not been placed before the Advisory Board.
The court while terming the grounds of detention vague noted that there is no mention of the particulars of the place, the identity of the persons (militants) alleged to have received support of the petitioner and the particulars of the period in the grounds of detention.
“These grounds, being vague and lacking in material particulars, as such, the detenu could not have made an effective representation against his detention, on the basis of these vague allegations, ” the court said.
Justice Dhar underscored that the detention record does not suggest that the representation made by petitioner has been either placed before the Advisory Board or considered by the Board.
“The failure of the respondents to place the representation submitted by the detenu before the Advisory Board and its consequent non-consideration indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution,” the court said while quashing a detention order against Bhat.
While quashing detention orders of Wagay and Maqbool Bhat, who were placed under PSA detention on March 29, 2022, the court noted that there is no reference to any recent incident involving the petitioners in the grounds of detention.
The duo, Wagay and Maqbool Bhat challenged their detention order through counsel Ashiq Hussain on the ground that the petitioners right of making an effective representation against their detention has been violated as whole of the material, on the basis of which the grounds of detention have been formulated, has not been supplied to them.
The counsel contended that the order of detention is based upon stale incidents having no proximate link to the activities alleged to be prejudicial to the maintenance of public order.
In Wagay’s case, Justice Dhar pointed out that the incidents referred in the detention order pertain to the year 2016, 2017 and 2018, “that is more than six years, five years and four years respectively prior to the passing of impugned order of detention.”
In fact, the court underscored that the incidents and FIRs which formed basis of the grounds of detention have been the basis of earlier detention of petitioner which was made in terms of order passed on October, 04, 2018 which was quashed by the court in 2018.
“Thus, using the same grounds and material for passing subsequent detention order without actually mentioning that the petitioner had been previously detained on the basis of this very material not only amounts to an illegality but also shows lack of application of mind on the part of the detaining authority” the court said.
Underscoring that the incidents referred in Maqbool Bhat’s detention order pertain to the year 2018, the court noted that it is more than four years prior to the passing of order of detention.
“Thus, it is clear that the order of detention has been based on past and stale incidents,” the bench said.
Allowing the pleas, the court held that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of public order.
“In the instant case, the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained,” the court said.
The bench also recorded that the petitioners were hampered by non-supply of vital documents in making an effective representation before the Advisory Board, as a result whereof their cases has been considered by the Advisory Board in the absence of their representation, as is clear from the detention record.
“Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law,” the court said while striking down the detention orders.
Justice Dhar said that it needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue.
“The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable,” the court held.
