Jammu and Kashmir and Ladakh High Court
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Jammu and Kashmir High Court: Rajnesh Oswal, J., while rejecting the present petition on lack of merits, said, “…this Court is of the considered view that the order of detention impugned has been issued by the detaining authority well within the parameters of law and no fault can be found with it and, as such, the same is upheld.”

Background

Through the medium of this petition, the petitioner has questioned the order of detention dated 04-07-2019 issued by the respondent 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978.

 Issue

  1. Whether detaining authority followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution as well as Section 13 of the Public Safety Act?
  2. Whether detaining authority furnished the material relied upon them, that has deprived the petitioner of his right to make an effective and purposeful representation to the Government against the order of detention?
  3. Whether the order of detention has been passed on irrelevant, vague and non-existent grounds, as contended by the petitioner?
  4. Whether the detention order was approved within the statutory period?
  5. Whether it was mandatory for the respondent authorities to invoke the Public Safety Act and the same could not be dealt by procedure under criminal law?

 Observations

Upon the first issue, reliance was placed on the case of Abdul Latif v. B.K. Jha, (1987) 2 SCC 22, wherein it was held by the Supreme Court that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go beyond the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. With respect to the present facts and circumstances, the Court noted, “Despite having been informed about the grounds of detention and also furnishing of the relevant documents, the petitioner has not chosen to make any representation either to the Detaining Authority or to the Government. Thus, there is compliance of both the Article 22(5) of Constitution of India as well as section 13 of the Act.”

Addressing the second issue, the Court remarked, “The perusal of detention record reveals that the detention order, notice of detention and grounds of detention and other related documents, 21 in number, have been handed over to the detenue-petitioner on the date of execution of warrant of detention i.e. 10-07-2019 and the execution report has been duly signed by the petitioner… More so, from both the execution report as well as receipt of grounds of detention, it is evident that the grounds of detention were read over to the petitioner in English and explained to him also in Kashmiri language.” It was concluded by the Court that the petitioner was well aware of all the grounds of detention and was also supplied with the documents relied by the detaining authority and therefore any contention claiming otherwise shall be groundless and without merit.”

Answering issue no. 3, Court said, “…the detention order has been issued by the respondent No. 2 on various grounds duly supported by documentary evidence. The grounds cannot be considered as vague, non-existent or irrelevant. Even otherwise, when the detention order has been issued on various grounds and even if one of the grounds is un-sustainable, still the detention order can be sustained as the other grounds.”

To determine the fourth issue, Court placed reliance over the statutory provisions, in the words, “As per the mandate of section 15 of the Public Safety Act, the Detaining Authority within four weeks from the date of detention, has to place before the Advisory Board the grounds on which the order has been made and the representation, if any, by the person affected by the order. As per section 8(2) of the Act, when the order of detention has been issued under this section, the Detaining Authority has to send the order to the Government along with grounds of detention and other particulars as may be required and no detention order has to remain in force for more than 12 days after making thereof, unless it has been approved by the Government. The perusal of the detention record reveals that the detention order has been approved by the Government on 12-07-2019, that is, within the statutory period. More so, the case of the petitioner was also referred to the Advisory Board and the Advisory Board vide its opinion dated 23-07-2019 has opined that there are sufficient grounds for detention of the petitioner and it has also been observed that the detenue was informed of his right to make representation.”

Delving into issue no. 5, Court disagreed with the precedent relied by counsel for the petitioner, stating that, “…the petitioner has indulged in subversive activities prejudicial to the security of the State and such type of activities are not conducted openly but in clandestine manner” and therefore unlike the case relied on, the ordinary law of the land does not seem adequate to take care of such illegal activities. Reliance was further placed on Sasti v. State of West Bengal, (1972) 3 SCC 826, wherein the Supreme Court said, “The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention. There would be no legal bar to the making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be relevant and germane to the object for which a detention order can be made under the Act. Even in cases where a person has been actually prosecuted in a Court of law in respect of an incident and has been discharged by the trying Magistrate, a valid order of his detention can be passed against him in connection with that very incident.”

 Decision

While rejecting the present petition, Court discussed at length, the requisites of a valid detention order and compliance of the same in the present case.[Asif Rashid Mir v. State of Jammu and Kashmir, 2020 SCC OnLine J&K 714, decided on 30-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Hot Off The PressNews

Supreme Court: The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah, JJ has issued a notice to the Jammu and Kashmir administration seeking its response on a plea filed by Iltija, daughter of former chief minister Mehbooba Mufti, challenging her mother’s detention under the Jammu and Kashmir Public Safety Act, 1978. The bench also asked Iltija to file an affidavit that no similar case is pending before any other court and posted the matter for hearing to March 18.

During the hearing, senior advocate Nitya Ramakrishna appearing for Iltija assured the court that no petition is pending before any court. The court also asked the counsel about the situation in the Kashmir.

“What’s the position now? Schools have started? It came in the newspaper,”

At the outset, the bench even suggested the counsel to approach Jammu and Kashmir High Court. Senior counsel responded that High Court had taken a view that it can’t go into
the administrative issues, to which the bench replied that it’s not an administrative issue. “Cheap politics among masses,” counsel argued while reading out reasons for Mufti’s detention. The counsel also said that they (administration) have not referred to a single instance against former Chief Minister of inciting people.

The Jammu and Kashmir administration had, on February 5, invoked PSA against the former Chief Ministers Mehbooba Mufti and Omar Abdullah. Both the former Chief Ministers were detained after the government abrogated Article 370 last year. Earlier, the bench had also sought response from Jammu and Kashmir administration on a plea of former Jammu and Kashmir Chief Minister Omar Abdullah’s sister challenging his detention under the Jammu and Kashmir Public Safety Act.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A bench headed by Justice Arun Mishra has issued a notice to the Jammu and Kashmir administration on the plea of National Conference leader Omar Abdullah’s sister challenging his detention under the Jammu and Kashmir Public Safety Act, 1978. The Jammu and Kashmir administration has to file a reply by March 2. Justice Mohan Shantanagoudar on Wednesday had recused from hearing the plea.

The Court inquired whether any similar plea filed by any person is pending before the High Court. On this, senior lawyer Kapil Sibal, who is appearing for Omar’s sister Sara Abdullah Pilot, said “no”.

In her plea, Sara Abdullah Pilot, Omar’s sister and wife of Rajasthan Deputy Chief Minister Sachin Pilot, said the order of detention is manifestly illegal and there is no question of him being a “threat to the maintenance of public order”. She also said that exercise of powers by authorities under the CrPC to detain individuals, including political leaders, was “clearly mala fide” to ensure that the opposition to the abrogation of Article 370 of the Constitution is “silenced”.

The plea has sought quashing of the February 5 order detaining Omar Abdullah under the PSA and also sought his production before the court.

“The intent of exercise of power was to incarcerate not just him but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the State and the Union over several years… stood by India whenever the situation so demanded,”

The plea added that the grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention. The Jammu and Kashmir administration on February 5 had invoked the stringent PSA against former Chief Minister Abdullah and People’s Democratic Party leader Mehbooba Mufti. Both the former Chief Ministers were detained after the government abrogated Article 370 last year.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Hot Off The PressNews

Supreme Court: Justice Mohan Shantanagoudar on Wednesday has recused from hearing the plea of former Jammu and Kashmir Chief Minister Omar Abdullah’s sister, challenging his detention under the Jammu and Kashmir Public Safety Act, 1978. A three-judge Bench of Justice NV Ramana, Justice Mohan Shantanagoudar and Justice Sanjiv Khanna was scheduled to hear the case today after the matter was mentioned before the Court on Monday.

Another Bench has agreed to hear the case tomorrow. Senior advocate Kapil Sibal, appearing for Sara, mentioned that he will not be available for the hearing on Thursday. Thus, the top court scheduled the matter for hearing on Friday i.e. February 14, 2020.

In her plea, Sara Abdullah Pilot, Omar’s sister and wife of Rajasthan Deputy Chief Minister Sachin Pilot, said the order of detention is manifestly illegal and there is no question of him being a “threat to the maintenance of public order”. She also said that exercise of powers by authorities under the CrPC to detain individuals, including political leaders, was “clearly mala fide” to ensure that the opposition to the abrogation of Article 370 of the Constitution is “silenced”.

The plea has sought quashing of the February 5 order detaining Omar Abdullah under the PSA and also sought his production before the court.

“The intent of exercise of power was to incarcerate not just him but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the State and the Union over several years… stood by India whenever the situation so demanded,”

The plea added that the grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention. The Jammu and Kashmir administration on February 5 had invoked the stringent PSA against former Chief Minister Abdullah and People’s Democratic Party leader Mehbooba Mufti. Both the former Chief Ministers were detained after the government abrogated Article 370 last year.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A petition has been filed in the Supreme Court challenging the detention of former Jammu and Kashmir Chief Minister Omar Abdullah, under the Public Safety Act (PSA). The plea was filed by Abdullah’s sister Sara Abdullah Pilot.

Abdullah and People’s Democratic Party (PDP) leader Mehbooba Mufti were recently booked under PSA. Both the former Jammu and Kashmir chief ministers were detained after the government abrogated Article 370 last year.

On the intervening night of 4 and 5 August 2019, Omar Abdullah was placed under preventive detention by the Indian Government. This came as a backdrop to the government’s decision of scrapping Article 370 of the Constitution of India, which gave the state of Jammu & Kashmir semi-autonomous powers. On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)