Srinagar: The J&K High Court quashed Public Safety Act (PSA) against a former special police officer turned ‘militant worker/member’ and a fruit seller turned ‘militant sympathiser’ on the ground that ‘the detention has expired’ and “there is no proper application of mind applied by the detaining authority”.
In the case of Abdul Qadoos Rather of Kupwara, the court said the detenu was admittedly in police custody in FIR No. 87/2019 when the order of detention was passed by the detaining authority.
“His bail application had been dismissed by the competent court on merits but later on because of the failure of the prosecution to produce the charge sheet, he had been conveyed by the court that he had a right to move default bail application. As is claimed by the petitioner, he had actually moved such an application, but, before he could be released, he was detained in terms of the detention order,” Justice Sanjeev Kumar recorded.
The Court said that all these facts as is apparent from the bare reading of the grounds of detention were not within the knowledge of the detaining authority and requisite material had not been placed before it by the police authority.
“This obviously has deprived the detaining authority of the requisite material that was required to be considered by it for deriving his subjective satisfaction with regard to the necessity of placing the petitioner under preventive detention. This ground alone is sufficient to quash the impugned order of detention,” the court said.
The court also said that apart from the further perusal of the detention record produced by the respondents, it transpires that the impugned order was issued by the detaining authority on 22nd November 2019 and the same was confirmed by the Government under Section 17(1) of the J&K Public Safety Act 1978 for a period of six months in the first instance, then further six months.
“There is, however, no further extension issued by the Government that could be traced in the records. In the absence of any further extension granted by the Government, the petitioner cannot be kept under preventive detention after 23rd November 2020. For that reason also, the detenu becomes entitled to be released forthwith,” court said.
In another case of Riyaz Khaliq Parray of district Baramulla, the court quashed the detention after noting that at the time of passing of the detention order, the detaining authority was not aware whether the detenue was in police/judicial custody or he stood released on bail.
“It is difficult for me to say as to what impact it would have made on the satisfaction of the detaining authority but it cannot be denied that it was a relevant information that was required to be produced before the detaining authority to enable it to derive subjective satisfaction with regard to necessity of placing the petitioner under preventive detention,” Justice Sanjeev Kumar said.
“The non-application of mind by the detaining authority is fatal and goes to the root of the detention and, therefore, is sufficient to vitiate the impugned order of detention. Direction is issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case,” the court directed.