Ukkash F | Sastra School of Law, Tamil Nadu | 29th May 2020
Mian Abdul Qayoom v. Union Territory of J&K & Ors.
The J&K HC on Thursday upheld the detention of the HC Bar association president Mian Abdul Qayoom under the J&K public safety Act, 1978 for preventive detention.
FACTS OF THE CASE
The detention passed by the detaining authority was challenged by the Petitioner on the ground that the detenue was not supplied the material documents based on which the detaining authority had attained the requisite satisfaction; thereby the detenue was prevented from making an effective representation against his detention, violating the most precious right guaranteed to him. Also, that the detenue was previously detained in the year 2010 and the very same FIRs and the allegations made therein were then relied upon for detaining the detenue, but that detention order was subsequently withdrawn.
The Court dismissed the writ petition stating that,
“Preventive detention is thus, based on suspicion or anticipation and not on proof. The responsibility for security of State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention”
It is often said and held that the Courts do not even go into the question of whether the facts mentioned in grounds of detention are correct or false.
ISSUE
- Whether the detention of the HC Bar association president, Abdul is justifiable since the detention is based on suspicion?
COURT’S OBSERVATION
The counsel for the petitioner stated that the Police Dossier submitted before him by the Sr. Superintendent of Police, Srinagar; the Case Diaries of the FIRs; the reports and the newspaper reports, besides referring to the proceedings initiated against the detenue under Sections 107/151 Cr. P. C. in connection with which he was in preventive custody on the date of passing of the detention order. Mr. Shah, further, inviting the attention of the Court to the endorsement contained in the detention order, submitted that while forwarding the detention order. Also, he submitted that because of such a failure, the detention of the detenue is rendered illegal; therefore, the detention order is liable to be quashed.
The counsel placed reliance on the case Thahira Haris v Govt. of Karnataka, where the case held that “non-supply of all the materials, relied upon by the detaining authority to arrive at the requisite satisfaction, renders the detention order illegal and is a sufficient ground for quashing the order of detention”.
Concomitantly, it was argued that since the detenue was already in preventive custody of the respondents on the date of his detention, the detaining authority has not shown any compelling reason that despite that fact, it was necessary to detain him under the provisions of Public Safety Act.
The counsel on behalf of the respondents broke to own the cited judgments by the opposing counsel and placed reliance on the same case where it was held that There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue becomes illegal and the detention order has to be quashed on that ground alone.
CONCLUSION
In the instant case, admittedly, the detenue has been detained on the satisfaction of the District Magistrate, Srinagar, intending to prevent him from acting in any manner prejudicial to the maintenance of public order, it was necessary to do so. The examination of cases registered against him reveals that despite holding a responsible position of Bar Association President he wilfully and actively indulged in unlawful activities and instigated the people for violence thereby disturbing the public order. The ideology of nature reflected in the FIRs and alleged against the detenue herein is like a live volcano.
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