Srinagar: The J&K High Court on Tuesday quashed Public Safety Act (PSA) against two alleged Over Ground Workers (OGWs) while upholding the detention of another alleged ‘militant supporter’.
The court while quashing the PSA detention order of Umar Yousuf Naik and Mumtaz Ahmad Balgati said that the detenues were already in custody when the detention order was executed.
In case of Naik, the court recorded that on the date of detention the detenue was already in jail in FIR No. 65/2018 for very serious non-bailable
offences. The detenue had not even applied for bail before any competent court of law.
“And it is because of this reason perhaps the detaining authority did not voice apprehension of likelihood of the detenue being released on bail. That being the situation, it was incumbent on the detaining authority to indicate compelling reasons for resorting to provisions of Section 8(a) of
the J&K Public Safety Act, 1978 and place the detenue under preventive detention,” court said.
It recorded that if the idea of issuing the detention order was to prevent the detenue from acting in any manner prejudicial to the security of the State,
that objective stood already achieved with the arrest of the detenue in connection with commission of substantive offences. In these circumstances
the detaining authority could not have absolved itself of the responsibility to, at least, indicate the compelling circumstances for taking such a decision.
“In that view of the matter, the detention of the detenue, when he was already in custody, cannot be said to have been made because of any undisclosed
compelling reasons, and, therefore, cannot be justified in view of the law,” the court said.
In case of Balgati, the court recorded that the detention order was passed on 25 November, 2019 but was executed on 28 December, 2019 without giving any proper explanation for the delay in the execution.
“Once the petitioner was in custody, the detention order could have been executed without any delay upon the detenue. It is not that the detention order can be executed as per the convenience of the authority but has to be executed at an earliest unless there are reasons which delayed the execution of the detention order,” the court said.
In the case of Nayeem Ahmad Mir, the court said that the detention order was passed with application of mind and the detaining authority had supplied all relevant material to the detenue to make an effective representation, which he opted not to before the advisory board.