Srinagar: The J&K High Court on Wednesday quashed the Public Safety Act (PSA) slapped on Jamaat-e-Islami spokesman Advocate Zahid Ali Lone and directed the respondents (UT of J&K and others) to release the detenue from preventive detention forthwith, if not required in any other case.
Justice Sanjay Kumar set aside the judgement dated June 29, 2020, vide Order No. 11/DMP/PSA/20.
The petition in the nature of Habeas Corpus was filed by his son through Advocate Salih Pirzada, throwing a challenge to the order passed by the District Magistrate Pulwana on June 29 last year.
The petitioner had argued that the impugned order of detention has been passed on the same facts and for the same activities which were part of the grounds of detention in the earlier detention order passed against the detenue, which was quashed by the Court and, therefore, the same is not sustainable in law.
The petitioner also argued that the grounds of detention in his client’s case were vague and general, and mostly about the alleged activities of the detenue as a member of Jamaat-e-Islami, which came to be banned by the government only when the detenue was already in the custody of the respondents. “There is no fresh activity attributed to the detenue after the ban of aforesaid organization.”
The Court noted that the order of detention is not sustainable for more than one reason.
The Court observed that there was hardly any need to place the detenue under preventive detention yet again on the same set of grounds on which he was detained earlier twice and the orders of detentions in which were quashed by the Court.
“The first order of detention was quashed by this Court in HCP No. 75/2019 on 11.07.2019. All the activities, to which reference has been made in the grounds of detention, were the activities attributed to the detenue in the aforesaid detention. There is thus no new activity attributed to the detenue which would necessitate passing of [the] order of detention,” the Court noted.
“Similar was the position when the second detention order was slapped on the detenue, which became the subject matter of challenge in HCP No. 323/2019. This Court, vide order dated 03.03.2020, quashed the aforesaid order as well.”
The Court noted that the grounds of detention, based on which the detenue has been placed under preventive detention in terms of the impugned order, are stale.
“The Detaining Authority, in the grounds of detention served upon the detenue, has not indicated any fresh material, necessitating the passing of fresh order of detention, except that the organization Jamat-e-Islami, of which the detenue is allegedly a spokesman, is now banned by the State,” the Court observed.
The Court noted that the detenue was in the custody of the State when the Jamat-e-Islami — the organisation he was affiliated to — was banned and continues to be so as of date.
“That being so, the banning of the organization cannot be said to be a ground for detaining the detenue,” it said.
“The detenue has placed on record the bail order dated 11.04.2020 passed by the competent Court of law, whereby he has been bailed out in FIR No. 339/2008. The Detaining Authority is not aware of the aforesaid bail granted to the detenue.”
“That apart, this Court is of the view that the grounds of detention, on the basis of which the detenue has been placed under preventive detention in terms of the impugned order, are stale … and there was no fresh material available against the detenue which would justify his further detention in the preventive custody.”
“The factual averments made by the detenue in his petition have not been denied by the respondents,” the Court noted.