Srinagar, March 13: Jammu and Kashmir High Court on Friday quashed a detention order under Public Safety Act against Shahid Salam Naikoo of Bonbazar in southern Kashmir’s Shopian district for authorities go by to procedural safeguards, adherence of which are imperative in the case of preventive detention of any person.
Naikoo was granted bail by court but instead of releasing him, he was allegedly implicated in a case FIR (318 of 2018) and booked under PSA on 26 February 2020 despite being in custody and shifted to central Jail Kotebalwal Jammu.
His counsel, advocate Wajid Haseeb submitted that Naikoo was already under custody when the detention order was passed and there were no compelling reasons for the detaining authority—District Magistrate Shopian— to pass the order. Advocate Wajid said that the grounds of detention were not duly communicated to him, which renders the detention order bad.
State counsel—advocate MA Chasoo, relying on his counter affidavit argued that the copy of the grounds of detention was served on Naikoo and he was duly informed about his right to make a representation, and as such the detention was fortified in fact and law.
In the counter it was alleged that Naikoo was working as Over Ground Worker of militant organizations and also inculcate secessionist ideology in the mind of vulnerable youth and radicalize and motivate them to resort to stone pelting on security forces and other Government establishments aiming at demoralizing the police and other security agencies of the State.
“The detaining authority has not spelt out as to what were ‘other connected documents’. The detenu (Naikoo) has thus been not supplied complete documents which have affected his Constitutional rights guaranteed under Article 22(5) of Constitution of India to make effective representation against his detention,” a bench of Justice Ali Mohammad Magray according to GNS said after hearing both sides.
The court according to Global News Service said that the detention order was rendered illegal in view of the law laid down by Supreme Court, forging certain procedural safeguards in the case of preventive detention of citizens.
The constitutional imperative indicated in Art. 22(5) are twofold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the detainee the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detainee the earliest opportunity of making a representation against the order of detention.
“The right to make a representation implies what means the right of making an effective representation. Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents. The (detainee), therefore, has right to be furnished with the grounds of detention along with the documents relied upon,” the top court has underlined. The high Court while allowing Naikoo’s plea against PSA detention ordered authorities to “release (him) forthwith.”