Srinagar, Jan 28: The High Court of Jammu & Kashmir and Ladakh Friday overturned three detention orders under Public Safety Act against three persons and ordered their release from the preventive custody forthwith, provided they aren't required in any other case
The court quashed detention orders against Ahtisham ul Haq Bhat resident of Chittaybandy Aragam of district Bandipora who was detained on March 03, 2021, Adil Manzoor Mir resident of Ashajipora, Anantnag, who was booked under PSA on February, 26, 2021 and Mohammad Aslam Sheikh resident of Gudpora Yarikah Khansahib, Budgam, who was slapped with PSA on November, 11, 2020.
The court of Justice Sanjay Dhar noted that the detenu has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention and the translated copies of grounds of detention has not been supplied to him.
Justice Dhar held that non-furnishing of relevant material forming the basis of the grounds of detention deprives a detenu of his Constitutional right to make a representation against the order of detention.
"The denial of this Constitutional right renders the order of detention unsustainable in law," the court said while citing various Supreme Court judgments.
The court recorded that the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention orders against the petitioners/detainees.
"The impugned order of detention is, therefore, unsustainable. Accordingly, the same is quashed," the court said.
While quashing the detention order of Mohammad Aslam Sheikh, the court noted that the detenu was already in custody in case FIR No.86/2020 for offences under Sections 18, 20, 23, 38, 39 of ULA(P) Act and 7/25 Arms Act of Police Station, Khansahib, and there were no compelling reasons for the Detaining Authority to make the impugned detention order.
It further noted that the Detaining Authority has not spelt out the compelling reasons for detaining the detenu under preventive laws.
"It is a settled position of law that preventive detention orders can be passed even when a person is in police/judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded," the court said.
The Detaining Authority, Justice Dhar recorded, is bound to record the compelling reasons as to why the detenu could not be deterred from indulging in subversive activities by resorting to normal law.
"In the absence of these reasons, the order of detention becomes unsustainable in law," the court said.
The bench recorded that in the grounds of detention, after referring to the allegations made in the FIR, it has been mentioned that these activities of the detenu are prejudicial to the security of state that have a potential of destabilizing the country in case the detenu is allowed to remain at large.
However, the court said, the Detaining Authority has not referred to any other cogent material or furnished any other cogent ground to show that if the detenu is allowed to remain at large, he will be a potential threat to the security of the state.
"It appears that the satisfaction of the Detaining Authority that the detenu is a potential threat to the security of the State is solely based on the allegations made in the FIR and no other material," the court recorded.
The court noted that the detenu was already in custody in the aforesaid FIR and there were remote chances of his getting bail as he was involved in the offences to which rigor of Section 43D of UAPA is attracted.
"Thus, there were no compelling reasons for the detaining authority to pass the impugned order of detention. The same, therefore, is not sustainable in law," the court said while setting aside the detention order of Sheikh.