Excelsior Correspondent
Srinagar, Mar 30: High Court today directed for the release of five detainees after it quashed their detention orders and upheld the detention of them.
Justice Tashi Rabstan after perusal of the record of detention pertaining to these five detenues and rival contentions raised by their counsels and counsels appearing for Government quashed five detention orders and directed the authorities to release them from the custody if they are not required in any other case.
Detenue Sajad Ahmad Dar son of Sonaullah Dar of Methan Chanapora was ordered to be detained by District Magistrate, Budgam vide Order no.DMB/PSA/28 of 2019 dated 10.07.2019.
In his case Justice Tashi, said, if detune is not supplied the material, on which detention order is based, he will not be in a position to make an effective representation against his detention order. “Failure on part of detaining authority to supply material, relied at the time of making detention order to detenue, renders detention order illegal and unsustainable”, court recorded.
In the present case, Court said, the procedural requirements have not been followed and complied with by respondents in letter and spirit and as a corollary thereof, petition requires to be allowed and disposed of the petition after quashing the detention order.
Detenue Mohammad Iqbal Dar alias Hilal alias Skindar son of Mohammad Yousuf Dar of Arreh District Kulgam was placed under preventive detention by District Magistrate, Kulgam vide Order no.29/DMK/PSA/2019 dated 04.07.2019.
In this case, court said, the grounds of detention do not mention that detaining authority is aware of the fact that Dar had already been released on bail by court of competent jurisdiction at the time of making detention order.
“In the present case detaining authority has not drawn any subjective satisfaction vis-à-vis detention of detenue. There is no mention of the fact that detenue has applied for bail in criminal case against him nor is there any satisfaction that detenue has been enlarged on bail before issuance of impugned order of detention”, court said adding “even there is no mention concerning any fresh activity of detenue from the date of release of detenue on bail till the time the order of detention was passed which clearly indicates and shows total absence of application of mind on the part of detaining authority while passing impugned detention order of detention. In that view of matter, impugned order is vitiated”.
Justice Tashi also recorded in the judgment that the detention record also does not comprise of any approval accorded by the Government and/or any report/approval given by the Advisory Board and orders followed thereafter as is required under the J&K Public Safety Act, 1978. By this as well, impugned order is vitiated.
Detenue Mohammad Shafi Yatoo alias Raja son of Ghulam Mohi u-din Yatoo of Audoora Sheeri District Baramulla was placed under Public Safety Act by District Magistrate, Baramulla vide his Order no.127/MB/PSA/2019 dated 14.02.2019.
In his case, court said the grounds of detention are vague and ambiguous, which have been attributed to detenue. Detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified.
Detenue Morifat Ahmad Mir son of Mohammad Akbar Mir of Kandoora, Beerwah was detained by District Budgam District Magistrate, Budgam vide Order no.DMB/PSA/25 of 2019 dated 22.05.2019. “For the foregoing reasons, this petition is disposed of and detention Order is quashed”, court directed.
Detenue Mohammad Akram Najar son of Abdul Gaffar Najar of Bicherwa Tehsil Kralgund was detained on 10.08.2016 by District Kupwara District Magistrate, Kupwara under preventive detention.
In his case, Justice Tashi while quashing the detention order said there is no reasonable or acceptable explanation for the delay. In a situation of turmoil as has been mentioned in grounds of detention, prompt action is imperative. It is, therefore, not possible for this Court to be satisfied that detaining authority had applied his mind and arrived at “real” and “genuine” subjective satisfaction that it was necessary to detain the detenue to “prevent” him from wrongdoing. The condition precedent, therefore, was not present.
“For the foregoing reasons, the petition is disposed of and detention Order no.14-DMK/PSA of 2016 dated 10.08.2016, passed by District Magistrate, Kupwara, quashed”, Court concluded.
District Magistrate, Budgam by Order no.DMB/PSA/59 of 2019 dated 20.08.2019, placed Shabir Ahmad Sofi son of Abdul Khaliq Sofi of Mazhama, Magam, Budgam under preventive detention, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
It is this order, of which petitioner is aggrieved and challenged the detention on the ground that the detenue is a Government employee and not a criminal or a stone-pelter, yet he has been detained on the ground of being a stone pelter because local intelligence people in villages often on the basis of mistaken identity and to win award from Government, have created a racket.
Court upheld the said detention and said it is the responsibility for security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention.
“Having said that, subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinize the merits of administrative decision to detain a person”, Justice Tashi said.
Court said, it should be kept in mind by one and all that the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused so as to endanger and threaten the very foundation of the pattern of our free society in which the guaranteed democratic freedom and personal liberty is designed to grow and flourish. “For the foregoing discussion, the petition sans any merit and is, accordingly, dismissed”, court concluded.
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