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'sMatibugh village in district Kulgam, Pala was arrested under Public Safety Acton August 7 this year soon after Article 370 was abrogated and J&K Statebifurcated into two Union Territories. He was imprisoned in District JailBareilly in Uttar Pradesh.
Pala's familychallenged the detention order issued by District Magistrate Kulgam throughadvocates Mir Shafaqat Hussain and Wajid Haseeb. After hearing the parties, abench of Justice Ali Muhammad Magrey scraped the detention.
"In view of thesettled position of law, the detention of the detainee is vitiated," the courtsaid, observing that the detainee was prevented from making an effective andpurposeful representation against the order of his detention.
In its plea beforethe court, Pala's family had submitted that the victim was suffering frompapillary carcinoma of thyroid and was under treatment at SKIMS before hisdetention. In support of its contention the family produced a certificate fromDepartment of Nuclear Medicine of SKIMS.
The family wasseeking directions for Pala's release besides a compensation of Rs 10 lakh fromthe government for detaining him "illegally".
According to thefamily, 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 inany activity against the State.
But on August 6 thisyear, the family said, Pala was called to police station Yaripora and wasshifted to Central Jail Srinagar to be detained under PSA.
Pala's counselssubmitted that the grounds taken in the detention order and the materialreferred to and relied upon had no relevance because the detainee was admittedto bail and no fresh activity had taken place after he was granted the bail.
They submitted thatthe detaining authority passed the detention order on the previous activitiesof the detainee.
The counsels furthersubmitted that there was inordinate delay in passing of the detention order.The last activity, on the basis of which the detention order was passed, theysaid, took place on October 22, 2017, whereas the detention order was passed onAugust 7, 2019 – two years after.
They submitted thatPala's further detention will lead to his death.
In support of theircontention, the counsels referred to J&K High Court judgment delivered incase titled "Bashir Ahmad Rather vs State of J&K and Ors" and SC judgmentdelivered in the case titled "Rajinder Arora vs Union of India" wherein thecourt has held that if no explanation was furnished for long delay in passingorder of detention, the same was vitiated in law.
"The explanation putforth by respondents that detainee may disrupt the security of the State nolonger survives as the detainee was already facing trail in the competent courtof jurisdiction," the court said. Pointing out that counsels representing thegovernment have failed to explain the delay in passing the order of detention,the court said, "Therefore, on this ground alone the impugned order is liableto be quashed."
With regard tomaking representation against the order of detention, the court said such aneffective representation can only be made by a detainee when he is supplied therelevant grounds of detention.