SrinagarThe Jammu and Kashmir High Court said quashed third consecutive detention order under Public Safety Act against a person from Rafiabad in north Kashmirs Baramulla district.
Referring to case of Ratan Singh Vs. State of Punjab and others 1981, a bench of Justice H K Hanjura emphasized the need to ensure that the constitutional and statutory safeguards available to a detainee are followed in letter and spirit. the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detainee, the court said and quashed detention order under PSA against Abdul Qayoom Ganai of Baramulla.
On 23 July 2016, Ganai was arrested by the SOG, Sopore, in connection with F.I.R bearing (No. 263/3016), registered at Police Station, Sopore, u/s 10,13 ULA Act. While in custody, District Magistrate, Baramulla passed an order of detention (No. 60/DMB/PSA/2016) on 08 August 2016. The order was challenged by the detainee before was quashed by the High Court and the officials were directed to release him forthwith. However, Ganai has stated that when the order was served on officials, instead of being released, he was shifted to the Police Station Sopore, and during his custody there, another order of detention bearing (No. 54/DMB/PSA/2017) on 04 July 2017 was passed against the detainee on the same grounds that were taken against him in support of the earlier order of detention.
This order of detention also came to be quashed by the High Court on 25 September 2017 with the direction to the government to release him forthwith. However, Ganai met the same fate and instead of being released, he was handed over to the authorities of the Counter Intelligence of Police, Jammu, who shifted his custody to the SOG, stationed at Police Station, Sopore.
After remaining in wrongful confinement in the Police Station Sopore, for more than a month, (Ganai) was produced before the Judicial Magistrate for remand in connection with F.I.R No. 85/2017 registered at Police Station, Bomai, u/s 10-13 ULA Act. He further stated that when he was produced before the
Judicial Magistrate, he decried for his wrongful confinement and false implications on the part of the respondents, but of no avail. He stated that instead of paying heed to his agony,
District magistrate BAramulla slapped yet another order of detention on him bearing No. 138/DMB/PSA/2017 on 08 November 2017 and ordered him to be lodged in Central Jail Kotebhalwal Jammu.
Ganai said the third order of detention was executed on 10 November last year. He challenged order of detention has been challenged on the grounds, inter alia, that he could not have been detained under the provisions of PSA when he was already booked in substantive offences under various F.I.Rs and was in their custody when the orders of detention were passed and no bail application was filed.
Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offences in which he was arrested and had not applied for bail, the court said, underling that that the proper course would have been to challenge the order of bail, if granted to him. The detainee could not have been detained preventatively. This single infraction renders the order of detention liable to be set aside. Moreso, the order of detention appears to have been passed on surmises, conjectures and repetition of the earlier grounds, questioned in the earlier writ petitions, which is bad in law, the court said and quashed detention order against Ganai with a further direction to the authorities to release Abdul Qayoom Ganai son of Mohammad Sultan Ganai of Nadihal, Rafiabad, Baramulla, Kashmir, forthwith from the preventive custody, unless required in any other case.
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