Justice Vinod Chatterji Koul said that a detenu cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention Order is based is supplied to him.
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LAST week, the Jammu & Kashmir and Ladakh High Court quashed the detention of Kashmiri journalist Asif Sultan Saida under the Jammu and Kashmir Public Safety Act (PSA), 1978, for not supplying Saida with the material on the basis of which the detention Order was passed.
In 2018, Asif Sultan was booked under the Unlawful Activities (Prevention) Act (UAPA), 1967 and the Ranbir Penal Code (subsequently replaced by the Indian Penal Code, 1860 in J&K after the deoperationalisation of Article 370) and arrested by the J&K police.
The police claim was that “incriminating evidence” has been discovered at Asif Sultan’s residence, who used to work with the local monthly English magazine Kashmir Narrator.
On April 5 last year, a court in Srinagar granted him bail on account of the failure of the investigation agencies to establish his links with any militant group.
Subsequently, Asif Sultan was detained on April 9, 2022 on an Order by the district magistrate, Srinagar to prevent him from “acting in any manner prejudicial to the maintenance of security of the State”. He was later shifted to Agra Central Jail.
The detention authority had given a reference to a first information report (FIR) against Asif Sultan under the UAPA.
In his petition before the high court, Asif Sultan contended that the grounds of detention were vague, indefinite and cryptic inasmuch as the detaining authority had not attributed any specific allegation against him.
He added that the detaining authority had not furnished the material, including the dossier, relied upon by it to him to enable him to make an effective representation by giving his version of the facts attributed to him and make an attempt to dispel the apprehensions nurtured by detaining authority concerning involvement of detenu in alleged activities.
Finding merit in the petition, Justice Vinod Chatterji Koul observed that the detention record did not indicate copies of the FIRs, statements recorded under Section 161 of the Code of Criminal Procedure and other material collected in connection with the investigation of the FIRs were ever supplied to Asif Sultan.
“It needs no emphasis, that a detenu cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention Order is based is supplied to him.
“It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and, thereafter, the government that their apprehensions vis-à-vis his activities are baseless and misplaced,” Justice Koul held.
Justice Koul thus quashed the detention Order holding that the failure on the part of the detaining authority to supply the material, relied at the time of making the detention Order of the detenu, renders the detention Order illegal and unsustainable.
Last month, the J&K High Court quashed the preventive detention of journalist Sajad Ahmad Dar. The court had termed the detention of the 24-year-old on account of criticising the policies of the government as a misuse of the preventive detention law.
Dar had been placed under preventive detention on January 14, 2022.
Click here to read the order.
