Srinagar, Apr 26: The High Court of J&K and Ladakh has quashed fourth detention order in a row under Public Safety Act (PSA) against former spokesperson of banned Jamaat-e-Islami (JeI) while holding the same as “illegal”, even as it imposed a fine of Rs 5 lakh on government for “illegal infringement of fundamental right to personal liberty” of the former spokesperson of the JeI.
In his habeas corpus petition before the court, Advocate Ali Muhammad Lone alias Zahid of Nehama, Pulwama had challenged the detention order the district Magistrate Pulwama had passed against him in response to the dossier by SSP Pulwama.
“The petitioner has been made to suffer loss of his liberty for a cumulative period of more than 1080 days of preventive custody covered under the span of four detention orders in row from 2019 to ending March 2024,” a bench of justice Rahul Bharti said court said while holding the preventive detention of Lone as “mala fide and illegal from beginning and within”.
The Court underscored that the latest preventive detention of Lone was “compounding the illegality attending the breach and violation of his fundamental right to personal liberty with impunity and that entitled him to compensation”.
“Therefore, this court drew support from the judgment of the Supreme Court of India in the case of “Rudul Shah vs. State of Bihar” 1983 AIR SC 1086 and “N. Sengodan vs. Secretary to Govt. Home (Prohibition and Excise) Department, Chennai and others”, reckons this to be a fit case for this court to exercise its constitutional jurisdiction to extend constitutional remedy for grant of compensation in favour of the petitioner for illegal infringement of his fundamental right to personal liberty.”
The court observed that although the petitioner had claimed compensation of rupees twenty five lakh but a compensation of rupees five lakh, it said, would meet the ends of justice. “Therefore besides holding and declaring the preventive detention of the petitioner illegal, also holds the petitioner entitled to compensation of rupees five lakh payable by the respondents within a period of three months from the date of this judgment.”
The court also directed the Superintendent of the Jail concerned, where Lone is being detained, to release him “free from his prison.”
Before quashing the detention order, the court said: “….. this court finds that read between and behind the lines of the dossier and the grounds of detention, the SSP Pulwama and District Magistrate Pulwama are literally meaning to debunk the three judgments of this court whereby the preventive detention of the petitioner on all three occasions were quashed not on a technical ground but on the merits of the case holding the detention unjustified”.
Upon scratching below the surface, it said, there was nothing in the name of reasonableness and rationality to be found in the grounds of detention and in the order of the detention so framed and passed by District Magistrate Pulwama against the petitioner.
“It seems that the SSP Pulwama and the …District Magistrate Pulwama in continuing with the preventive detention of the petitioner meant to be law unto themselves having extra constitutional authority at their respective disposal in the matter of targeting the petitioner with repeated preventive detention custody unmindful of fact that each time failing to sustain the said preventive detention custody before the court of law.”
The court observed that in addition the preventive detention order of the petitioner was inherently bad as the purported basis of its passing was related to the security of state whereas, it said, the Jammu & Kashmir Public Safety Act, 1978 nowhere provides “Security of State” to be a basis under section 8 of the said Act as a ground for the Government, Divisional Commissioner or District Magistrate to inflict a preventive detention upon a person by reference to his alleged reported activities to be prejudicial to the Security of the State”
Meanwhile, in a separate case, a bench of Justice Puneet Gupta quashed detention of one Amir Ahmad Chana of Azad Gunj area of north Kashmir’s Baramulla district, who was booked under PSA in terms of an order passed by the District Magistrate Baramulla on 7 February 2023. The court ordered his release from the custody “provided he was not required in any other case.