SC Seeks J&K Govt’s Reply On Mian Qayoom’s Detention

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Kashmir Bar Association president Mian Abdul Qayoom – File Pic

New Delhi– The Supreme Court Friday issued notice to Jammu and Kashmir administration on a plea filed by high court’s bar leader Mian Abdul Qayoom challenging his detention under Public Safety Act since August 7 last year.

A bench of Justices Sanjay Kishan Kaul and B R Gavai issued notice to the Union Territory’s administration and sought its reply by first week of the reopening of the top court.

Senior advocate Dushyant Dave and advocate Vrinda Grover, appearing for Qayoom, said that they have challenged the order of the high Court which had upheld his detention under the J-K Public Safety Act.

The bench also passed an interim direction for providing some daily essentials to him while in detention at Tihar Jail.

In his appeal, Qayoom said that he has challenged the May 28 order of the Jammu and Kashmir High Court rejecting his plea against his prolonged illegal detention under the PSA in jails outside the UT.

He said that he is a Senior Advocate with more than 40 years’ standing at the Bar and has served as President of the J&K High Court Bar Association for many terms, including from 2014 till the present day.

Qayoom said he was detained on the intervening night of August 4th and 5th, 2019, under the provisions of Jammu and Kashmir Code of Criminal Procedure and thereafter, an order of detention under the PSA was passed against him on August 7, 2019.

He said that on August 8 he was taken to Central Jail, Agra, Uttar Pradesh, without any prior notice of intimation, where he was kept in solitary confinement.

He said that the high court’s May 28 order is ex facie unsustainable in law as it is premised on “stale, irrelevant, remote, vague, imprecise and deficient” grounds of detention.

The impugned judgment and order concluded that most of the grounds in the detention order are somewhat clumsy which implies that the High Court too found them wanting. Placing reliance on the doctrine of severability as enunciated by this Hon’ble Court in Gautam Jain v Union of India…the High Court then proceeds to uphold the detention order solely on one ground, his appeal said.

He said the high court makes it abundantly clear that the detention order has been upheld solely on one ground – the four FIRs dating back to 2008 and 2010, as enumerated in the detention order.

These FIRs are stale, irrelevant and have no proximate, pertinent or live link to the present, and are thus superfluous and extraneous to the satisfaction required in law qua the tendency or propensity to act in a manner prejudicial to public order. Pertinently, even in the said decade old 4 FIRs, the Petitioner was neither arrested, nor any charge sheet ever filed by the police against the Petitioner, he added in his plea.

Qayoom said he had already been detained in 2010 on the basis of the said FIRs under the PSA, and the said detention was subsequently revoked.

Thus, the same FIRs cannot be used to pass another order of detention under the PSA, as held by this Hon’ble Court , his plea said.

Qayoom said he is suffering from serious health ailments and is at a high-risk vulnerability for COVID-19 due to his co-morbid conditions.

The Petitioner has numerous serious medical conditions for which he has been receiving treatment for the last 25 years under the care and supervision of his doctors in Srinagar, Kashmir. The Petitioner is also dependent on his family for ensuring the regular and daily intake of medicines and regular injections, he added.

His plea said that the impugned judgment and order is also unsustainable in law as it relies on material presented for the first time in appellate proceedings to justify the validity of the detention order.

It is a matter of record that this new material was not relied upon by the Detaining Authority and it is undisputed that the same was not supplied to the detenu, he said, adding that the detention order passed against him was also vitiated, as materials relied upon were not provided to him.

As an interim prayer, he sought his transfer to Central Jail, Srinagar, during the pendency of the present petition, ensuring that all necessary medical precautions are taken qua COVID-19.

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