Srinagar: High Court of J&K and Ladakh on Monday ordered immediate release of two persons while quashing their detention under Public Safety Act(PSA).
Allowing their habeas corpus pleas, a bench of Justice Sanjay Dhar quashed the detention orders of Zubair Ashraf Khan of Buderkund, Khan Mohalla and Aurang Zab Khan of Wayil Bala, both from Central Kashmir’s District Ganderbal.
While Zubair was detained in terms of an order dated 18.10.2021, issued by District Magistrate Ganderbal under PSA, Aurang Zab was booked in terms of order dated 22.10.2021, issued by the District Magistrate.
In their separately filed pleas, the duo had challenged the detention orders through advocate G N Shaheen.
In the case of Zubair, the court noted that the record of detention produced by the officials did not contain any document evidencing the receipt of material by the petitioner.
While the court pointed out that the only document which was available in the detention record was the affidavit of the executing official wherein it was provided that the detenue had been supplied the warrant, notice of detention, grounds of detention and other relevant material, it said in the absence of any receipt executed by the petitioner, the contents of the affidavit could not be relied upon.
“Thus, it cannot be stated that the petitioner has been supplied the relevant material. Obviously, he has been hampered by non-supply of relevant material in making an effective representation before the Advisory Board, as a result whereof his case appears to have been considered by the Advisory Board in the absence of his representation. Thus, vital safeguards against arbitrary use of the law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law,” Court said.
“It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue”
The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable,” the Court said, citing a Supreme Court Judgment in support of its decision.
Quashing the detention of Zubair, the court detenue directed the government to release him from preventive custody forthwith provided he was not required in connection with any other case.
Similarly the Court quashed the detention of Aurang Zab.