Srinagar, Oct 19: The High Court of Jammu & Kashmir and Ladakh has quashed detention orders of six persons who were booked under Public Safety Act (PSA) and ordered their immediate release from preventive custody.
The court of Justice Sanjay Dhar quashed detention orders against Majid Rasheed Dar of Papchan Bandipora, Fayaz Ahmad Shergojri resident of Anantnag, Pulwama and Nazir Ahmad Rather of Tral district Pulwama.
While Justice Sanjeev Kumar and Justice Moksha Khajuria Kazmi overturned detention orders of Niyaz Ahmad Wani of district Pulwama, Bashir Ahmad Chauhan and Huzaif Mushtaq Matoo residents of Srinagar.
Allowing their separate habeas corpus petitions, the court directed the authorities to release the detenues immediately from their preventive custody, unless they are not required in connection to any other case.
While quashing the detention orders, Justice Sanjay Dhar observed that there has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution of India.
The court noted that a detenu cannot be expected to make an effective and purposeful representation which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the order of 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 in law,” the bench said.
In Nazir Ahmad’s case, Justice Dhar noted that the incidents referred in the detention order pertain to the years 2001, 2008, 2013 and 2016, that is more than 21 years, 14 years, nine years and six years prior to the passing of order of detention.
The court pointed out that there is no reference to any recent incident involving the petitioner in the grounds of detention.
“Thus, it is clear that the order of detention has been based on past and stale incidents,” the court said.
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 September, 10, 2016, which was quashed by the Court while disposing of the habeas corpus plea which fact is also mentioned in the grounds of detention.
“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 ruled.
Justice Dhar held that there has to be a live and proximate link between the past conduct of the detenu and the activities alleged to be prejudicial to the maintenance of security of the state.
In the instant case, the bench noted, 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 while quashing the detention order.
