SRINAGAR The Jammu and Kashmir High Court has quashed the 37th detention order under PSA of Muslim League chairman Masrat Alam Bhat and directed his release him from the preventive custody if not required in connection with any other case.
Holding Alams detention illegal, a single bench of Justice Rashid Ali Dar quashed the detention passed by District Magistrate Baramulla.
The respondents are directed to release the detenu (Masrat) from preventive detention, provided he is not required in connection with any other case, said a bench of Justice Rashid Ali Dar.
It is well settled law that when the detention order is quashed by the Court, grounds of the order so quashed should not be taken into consideration, either as whole or in part, even along with fresh grounds of detention for drawing subjective satisfaction to pass fresh detention order, the court said.
It is to be appreciated that once the Court sets-aside the detention order, it nullifies the entire order, the court said.
The Detaining Authority, therefore, cannot make use of the grounds that were relied upon to pass the earlier detention order(s) or activities that were detailed in such grounds. No such recourse is available where the earlier detention order is struck down by the Court as it sets at naught not only detention order but the grounds on which the detention order is based.
The court referred to the law law laid down in Masrat Alam Bhats case by the Supreme Court in 2008.
The court observed that the Constitution of India Article 22(5) and Section 13, J&K Public Safety Act 1978, guarantee two important safeguards to the detenu first that the detenu is informed of grounds of detention that prompted the detaining authority to pass the detention order and second that the detenu is allowed to represent against his/her detention immediately after the detention order is made or executed.
The Constitutional and Statutory safeguards guaranteed to the detenu are to be meaningful only if the detenu is handed over the material referred to in the grounds of detention that lead to subjective satisfaction that the preventive detention of detenu is necessary to prevent him from acting in any manner prejudicial to the security of the State of public order and further it is ensured that the grounds of detention are not vague, sketchy and ambiguous so as to keep the detenu guessing about what really weighed with the detaining authority to make the order.
The court observed that past history and activities of the detenue have been narrated in the grounds of detention but reference of the documents in the grounds of detention and the order of detention would suggest that it was imperative for the detaining authority to supply copies of the documents to the detenue. This has not been done which in turn deprived the detenue of his right of making an effective representation against his detention. Infringement of such right as guaranteed under Article 22(5) of the Constitution of India would render the order of detention as illegal.
Earlier, Masarat was detained and booked under the PSA following the 2010 unrest that left over 100 people dead in the Kashmir valley.
On October 30, 2012, Aalam was booked under PSA for running the 2010 mass agitation. He was released on March 1, 2015. However, his release sparked political storm after Indian media hyped his release, terming him as threat to peace.
Alam was detained under PSA for the first time on October 2, 1990.
He was released in November 1991. He was detained for second time in 1993 and released in February 1997.
On September 1997, he was detained third time for nearly three years and released in May 2000. He was detained for the fourth time in January 2001 and released in August 2003.
He was detained for the fifth time and was in detention till July 2005. Since 16 January 2008, he has been detained on nine occasions under the PSA.
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