Double Bench dismisses appeal, leaves it up to detenue to make a representation to Home Department
Srinagar, May 28: The Jammu and Kashmir High Court Thursday dismissed an appeal challenging the detention of Kashmir Bar Association president Mian Abdul Qayoom under the Public Safety Act (PSA) but allowed the lawyers representing Mian Qayoom that they can send a representation to Home Department.
Qayoom was detained on 5 August last year-the day the Government of India announced the abrogation of Article 370 and has since remained under detention. He was later shifted to a jail in Agra, where his health deteriorated. He was brought then to Delhi’s Tihar Jail.
Earlier in February as well, a single bench under Justice Tashi Rabstan had dismissed the petition about the quashment of Public Safety Act against the elderly lawyer who is incumbent President Kashmir Bar Association.
The counselors Zaffar Ahmed Shah, Nazir Ahmed Ronga and Mian Tufail Ahmad then filed an appeal that was today heard by double bench comprising Justice Ali Muhammad Magray and Justice Vinod Chatterji Koul.
The lawyers representing Mian Qayoom told news agency KNT that they questioned the grounds of Qayoom’s detention, stating that the same was signed by the District Magistrate “without application of mind and without going through the grounds of detention”.
“Grounds of detention are vague, indefinite, uncertain, and baseless as also ambiguous and lack in material particulars and essential details, which has rendered the detenue, unable to make an effective representation against his detention to appropriate authority,” they submitted.
The lawyers appealed court that government under section 19 of Jammu Kashmir Public Safety Act has the power to revoke the detention of any prisoner under PSA.
Advocate Zaffar Ahmed Shah submitted that the detenue, was not provided the materials viz. the Police Dossier, Case Diaries, reports, newspaper reports. He submitted that for lack of such material, the detenue was prevented from making an effective representation to the detaining authority and the Government against his detention, and was, thus, deprived of his most precious right of making the representation, guaranteed to him by law. The senior counsel submitted that because of such a failure, the detention of the detenue is rendered illegal; therefore, the detention order is liable to be quashed. The learned senior counsel submitted that the learned Single Judge has erred in holding that the contentions raised in this regard are meretricious. The learned counsel submitted that it has consistently been held by the Supreme Court that non-supply of all the materials, relied upon by the detaining authority to arrive at the requisite satisfaction, renders the detention order illegal and is a sufficient ground for quashing the order of detention.
Advocate Zaffar Ahmed Shah reiterated his submissions based on the health condition of the detenue and submitted that the Government has got the power to revoke, amend or alter the detention order and even to release the detenues on parole. He prayed for such a direction. During the course of arguments, when this prayer was put to D. C. Raina, Advocate General, he submitted that the prayer of the applicant stands already considered and rejected.
The court after hearing the arguments observed that it leaves it to the detenue to decide whether he would wish to make a representation to the Home Department for the revocation of PSA slapped on him. “Simultaneously, we also leave it to the discretion of the Government and of the concerned competent authority to take a decision in terms of the relevant provisions of the Jammu Kashmir Public Safety Act on any such representation, if made, by the detenue. It is made clear that an adverse order on any such application, if made, shall not entail any legal proceedings. With these words, the court disposed off the appeal.