High Court quashes PSA detention of Kulgam cancer patient

Jammu and Kashmir High Court has quashed the detention of a Kulgam resident, Parvaiz Ahmad Pala, who is suffering from cancer. Pala is serving detention under Public Safety Act since August 7.

From south Kashmir’s Matibugh village in district Kulgam, Pala was arrested under Public Safety Act on August 7 this year soon after Article 370 was abrogated and J&K State bifurcated into two Union Territories. He was imprisoned in District Jail Bareilly in Uttar Pradesh.

Pala’s family challenged the detention order issued by District Magistrate Kulgam through advocates Mir Shafaqat Hussain and Wajid Haseeb. After hearing the parties, a bench of Justice Ali Muhammad Magrey scraped the detention.  

“In view of the settled position of law, the detention of the detainee is vitiated,” the court said, observing that the detainee was prevented from making an effective and purposeful representation against the order of his detention.

In its plea before the court, Pala’s family had submitted that the victim was suffering from papillary carcinoma of thyroid and was under treatment at SKIMS before his detention. In support of its contention the family produced a certificate from Department of Nuclear Medicine of SKIMS.   

The family was seeking directions for Pala’s release besides a compensation of Rs 10 lakh from the government for detaining him “illegally”.

According to the family, Pala was arrested in December 2018 by police station Yaripora in a case (FIR 83/2017). He was granted bail on April 23 this year. After his release, the family said Pala remained confined to treatment and he did not indulge in any activity against the State.

But on August 6 this year, the family said, Pala was called to police station Yaripora and was shifted to Central Jail Srinagar to be detained under PSA.

Pala’s counsels submitted that the grounds taken in the detention order and the material referred to and relied upon had no relevance because the detainee was admitted to bail and no fresh activity had taken place after he was granted the bail.

They submitted that the detaining authority passed the detention order on the previous activities of the detainee.

The counsels further submitted that there was inordinate delay in passing of the detention order. The last activity, on the basis of which the detention order was passed, they said, took place on October 22, 2017, whereas the detention order was passed on August 7, 2019 – two years after.

They submitted that Pala’s further detention will lead to his death.

In support of their contention, the counsels referred to J&K High Court judgment delivered in case titled “Bashir Ahmad Rather vs State of J&K and Ors” and SC judgment delivered in the case titled “Rajinder Arora vs Union of India” wherein the court has held that if no explanation was furnished for long delay in passing order of detention, the same was vitiated in law.

“The explanation put forth by respondents that detainee may disrupt the security of the State no longer survives as the detainee was already facing trail in the competent court of jurisdiction,” the court said. Pointing out that counsels representing the government have failed to explain the delay in passing the order of detention, the court said, “Therefore, on this ground alone the impugned order is liable to be quashed.”

With regard to making representation against the order of detention, the court said such an effective representation can only be made by a detainee when he is supplied the relevant grounds of detention.