Srinagar: A division bench of the High Court on Friday set aside the judgement of its single bench that had ruled in favour of the government’s contention that if the detention of a person under Public Safety Act (PSA) has been extended by a fresh order, then no relief can be granted to him until he files a new habeas corpus petition to challenge the fresh detention order.
On Friday, a division bench comprising Justices Ramalingam Sudhakarand and Ali Mohammad Magrey set aside this judgment and ruled that the habeas corpus petition filed by a person detained under PSA will remain valid even if his PSA detention has been extended by a separate order.
“The Habeas Corpus petition will not lose its validity nor can it be closed merely because the extension order (under Section 18 of PSA) has not been challenged,” the division bench said, underling that the extension order under Section 18 of PSA is an “extension order and nothing more.”
“The detention order lapses under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, after the specified period mentioned therein. It gets extended in terms of Section 18 of the said Act. By the order passed in terms of Section 18, what is made valid is the original detention order passed under Section 8 of the Act for a further period. The conclusion that the order passed under Section 18 of the Jammu and Kashmir Public Safety Act, 1978, also should be challenged cannot be justified because detention order can be passed only under Section 8 and not under Section 18 of the Act. Section 18 has no independent application in the absence of Section 8 and, therefore, the reasoning of the learned Single Judge cannot be countenanced,” the bench said.
“If the original detention order is challenged, that would suffice,” the court ruled.
The bench said that being the custodian of the fundamental rights of citizens, it is the court which has to satisfy itself that procedural safeguards and requirements of law have been followed in the case of a person’s detention and “”the breach thereof vitiates the order of detention.”
The court made clear that the detainee can challenge the extension order if there is any inherent infirmity in it.
The court passed the judgment while hearing four Letters Patent Appeals, arising out of the decision of the single bench on February 1 this year, which held that as the order extending the period of detention was neither on record nor was it challenged, no effective relief could be granted to the petitioner.
The precise point before the division bench in these LPAs was limited to the question whether, in order to enable the court to consider a habeas corpus petition, it is obligatory that the detainee should challenge the government order issued under Section 18 of the PSA which extends the period of detention passed under Section 8 of the Act? The petitioners–Tariq Ahmad Sofi, Shahid Ahmad Bhat, Tajamul Islam Mir, and Arif Rashid Shah–were represented by advocate Mian Qayoom, president of the Kashmir High Court Bar Association.
The government was represented by Additional Advocate General RA Khan and Deputy Advocate General Irfan Andleeb.