The Jammu and Kashmir High Court has quashed a series of detention orders under the Public Safety Act including that of journalist Fahad Shah on ground that the “detaining authority did not apply its mind”.
In one of the cases pertaining to the detention of Srinagar resident Peerzada Mohammed Waseem, the court came down heavily on the district administration for stating in the dossier that the accused had indulged in rioting and stone pelting in 2020 whereas he was in jail since 2017.
How can a detenu already in jail and facing trial participate in rioting and stone pelting during that intervening period, the judge asked.
This “clearly proves that the detaining authority has passed the order without application of mind”, Justice Wasim Sadiq Nargal said in his order.
“I have gone through minutely the grounds of detention and perusal whereas reveals that the Detaining Authority has shown its wavering mind by stating that the activities of the detenu are prejudicial to the security of the State and in the same breath had said that the activities of the detenu are prejudicial to the maintenance of public order (sic),” Justice Nargal said, adding the authorities had used disturbance of the public order as well as maintenance of security on grounds of detention with a “wavering mind and uncertainty without any basis”.
The judge cited a 1980 order of the Supreme Court in which the top court stated that expressions “law and order”, “public order” and “security of the State” are distinct concepts, though not always separate.
Every breach of peace may amount to disturbance of law and order but does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State”, the order quoted the 1980 judgement of Supreme court.
Quashing another PSA order of Amir Ali Bhat, the judge said “It can safely be concluded…that the failure on the part of the detaining authority to supply the material relied upon at the time of passing the detention order against the detenu renders the detention order illegal and unsustainable in the eye of law.”
The court said the detaining authority used the grounds of detention with a “wavering mind and uncertainty and accordingly, the impugned order gets vitiated and is held illegal”.
Besides this, the contradictory statements of the detaining authority clearly proves “beyond any shadow of doubt” that the authority has not applied its mind before arriving at subjective satisfaction to detain Bhat in accordance with the law laid down by the Supreme Court.
In the case of Peerzada Shah Fahad alias Fahad Shah, the judge said that on careful analysis of the record, it is evident that the dossier has not been provided to the detenu and added “the non-supplying of the dossier is one of the main lacunae in the detention of the detenu” and it vitiates the detention order and cannot sustain the test of law and is liable to be quashed.
Perusal of the detention record further reveals that the person who executed the document has not sworn in affidavit on that behalf and as such, the procedural requirement as envisaged under law has not been followed by the respondents, the judge said while quashing the order.
The court also cancelled the PSA order of Naseer Ahmad Dar on similar grounds.
The judge, while passing these five orders separately on April 17, asked the authorities to release them forthwith in case they were not required in any other case.
