Srinagar: The J&K High Court on Tuesday quashed the PSA detention order of Hurriyat leader and Acting Chairman of the Muslim League, Farooq Ahmad Tawheedi, on the grounds that the detaining authority had violated Article 22 (5) of the Constitution by not considering ‘his representation’.
The court recorded that the non-consideration of the representation of the detenue cannot but be said to be an infringement of Article 22 (5) of the Constitution, thus vitiating the order of detention.
Farooq Ahmad Bhat ‘Tawheedi’ was arrested on 11 July, 2020, and was slapped with the Public Safety Act (PSA).
Counsel Syed Musaib representing Tawheedi challenged the detention mainly on the grounds that it had been passed without application of mind as the detenue had been granted bail in all the FIRs referred to and relied upon by the respondents.
He further submitted that the detaining authority despite having received representation of the detenue failed to consider it.
Justice Javed Iqbal recorded that the law enjoins upon the detaining authority to be alive to all the facts and circumstances of the case and on application of the mind to all those facts and circumstances, the detaining authority had to draw subjective satisfaction that the detention of the detenue becomes imperative.
“In case all the facts are not brought to the notice of the detaining authority or it is not aware of all the facts and circumstances of the case and without considering the same it derives subjective satisfaction to detain a person, the same would amount to non-application of the mind,” the court said.
The court while giving reference to Supreme Court directives in case titled Vijay Narian Singh Vs State of Bihar and others said, “It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed.”
The judge said that so far as the second ground of challenge is considered, it is well settled that whenever the detaining authority is being approached with a representation, it needs consideration and a reply.
However, in the instant case, the detaining authority has failed to reply to the said contention of the petitioner, thus vitiating the order of detention, the judge said.
“In view of this, the other grounds need not be to be dealt with. In the context what has been observed, analyzed and considered, the instant petition is allowed and the order of detention dated 11 July, 2020 is quashed,” the judge ordered.
“Respondents are directed to release the detenue forthwith from preventive custody, unless he is not required in any other case,” he directed.

NUSRAT SIDIQ