SRINAGAR: The detaining authority has the onerous duty to see that its act should not offend the spirit of the Article 21 of the constitution (personal liberty), the J&K high court has said.
“For arriving to conclusion (of detaining a person), the detaining authority has to lay a solid foundation in keeping view the rule of law so that (its) act may not offend the very spirit of the Article 21 of the Constitution of India,” a bench of Justice Mohammad Yaqoob Mir observed while quashing a detention under Public Safety Act of one Suhail Ahmad Koul.
According to Koul’s counsel, the order of detention has been passed in a most casual fashion and that non-application of mind was quite apparent. The counsel said that Koul was arrested on April 3 in connection with a case (FIR No.92/2015) police station Budgam. However Koul had not applied for bail and he was behind the bars when order of the detention was passed.
“When a person is already in custody and is not released on bail then question is whether there can be requirement of passing order of detention. It is now settled that when a person is in custody in connection with any other criminal case or otherwise then in that eventuality detention order can be passed provided detaining authority records sufficient reasons so as to demonstrate there that compelling circumstances persuaded the authority to pass the order of detention,” the court said, adding that the simple jugglery of words shall not be a substitute for recording sufficient reasons.
The court also observed there was nothing on the record to suggestion that the material forming base for the order of detention was furnished to Koul “except that he is shown to have received copy of the grounds of detention, four leaves and no other material.”
“For enabling a person to make an effective representation, all material which has formed the base for the grounds of detention was required to be furnished to the detainee which has not been done. As a result, whereof, right of effective representation has been denied to the (Koul) which infringes his right as guaranteed under Article 22 of the Constitution of India,” the court said, observing PSA detention order against Koul was unsustainable. “Detenue be released provided not required in connection with any other case,” the court added. .