The Jammu and Kashmir High Court has ruled that mere possibility of moving a bail application by a detenue is an insufficient reason for passing of an order of detention under preventive detention laws.
A division bench of Justice Ali Muhammad Magrey and Justice Vinod Chatterji Koul while quashing the detention of a man who was booked under Public Safety Act held that in keeping with the supreme court decisions “merely the possibility of the detenue moving the bail application in a case in which he was in custody, but had not obtained the bail order, has been held to be insufficient reason for passing of an order of detention under preventive detention laws.
The remarks came after advocate G N Shaheen, representing one Muhammad Iqbal Malla from south Kashmir’s Shopian district, in an appeal contended that the appellant was in police custody at the time of passing of the detention order in connection with the FIRs registered against him.
” There was no chance of his being released on bail,” he said.
Citing a supreme court judgment, Shaheen submitted that it was categorically held by the apex court that such a conclusion must be drawn from the available material on record and must not be the ‘ipse dixit’ of the officer passing the order of detention.
The apex court, he said, has held that “likelihood of detenue’s moving an application for bail is not a cogent material.”
He submitted that the Supreme Court has observed that “likelihood of moving an application by detenue for bail is different from likelihood to be released on bail.”
The court also did not endorse other grounds of detention against Malla. “District Magistrate Shopian while passing the order has recorded his satisfaction with regard to the sufficiency of grounds ‘on the basis of a dossier placed before him by the SSP” the Court said.
The appellant, the Court said, was prevented from making an effective representation in accordance with law and his rights under Article 22 of the Constitution, again lending substance to the challenge to the detention order.
The Court while setting aside its single bench judgment which had upheld the detention order passed by district Magistrate Shopian against Malla, the court also quashed the detention order by virtue of which he was booked on August 10 last year.
The Court directed the authorities to release the detenue from the preventive custody forthwith.