Excelsior Correspondent
SRINAGAR, Mar 23: High Court has said that in case the authorities intend to remand the under-trial to any prison other than located nearer to his residence that must be subject to approval of the concerned court where the case of the under-trial is pending.
The observations have been made by Justice V C Koul in a case where the detenu had challenged his PSA through the medium of Habeas Corpus petition seeking therein quashing of his PSA passed by the Divisional Commissioner Kashmir.
Detenue-Mudasir Sultan Bhat of Bemina Srinagar was detained by virtue of order dated 27.12.2022 in order to prevent him from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act.
Justice Koul while quashing the PSA directed the authorities to release him forthwith, provided he is not required in any other case. It was also sought by the detenu-Bhat the authorities be directed to produce him before the Trial Court and that further orders for his custody, if any, need be solicited by respondents from the Trial Court.
The court while citing a judgment on this issue said if the authorities concerned having control over the prisons and having power to regulate and control the prisons and to manage prisoners, may pass such orders as may be necessary to meet any exigency but same should be subject to approval of the concerned criminal court where the case is pending.
“In case, concerned criminal court is approached by such authorities with any memo or prayer for remanding the under trial to any prison other than located nearer to his place of residence, the said court shall consider the same under the relevant provisions and rules having regard to the object sought to be achieved and dispose off same by issuing speaking orders”, reads the judgment.
The court quashed the PSA citing that the procedural requirements are the only safeguards available to the detenu since the Court cannot go behind the subjective satisfaction of the detaining authority and the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and constitutional rights guaranteed to him in that regard.
The detenu court added, has not been provided the material on which detaining authority placed reliance and derive subjective satisfaction to detain him as it could have been only after detenu had been supplied all the material that weighed with detaining authority to pass detention order that he could have made an effective representation to detaining authority and also to the Government and if the same has not been done as such detention order, renders impugned detention illegal.
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