Authority Has To Furnish All Pertinent, Proximate Facts & Materials To Detenu: J&K&L HC Quashes Detention Order Passed Against Advocate Accused Of Spreading Secessionists Ideologies
The Jammu & Kashmir and Ladakh High Court quashed a detention order passed against Advocate Miyan Muzaffar accused of providing a platform to secessionists and terrorists to preach their ideologies. The High Court noted that the relevant material was not supplied to the family of the detenue or to the detenue even on their request, which was essential for making an effective representation.
The High Court also made it clear that the detaining authority is under an obligation to furnish all the pertinent and proximate facts and material relied upon in passing the detention order to the detenue.
The Single-Judge Bench of Justice Moksha Khajuria Kazmi asserted, “...the detenue has to be informed, not only of the inferences of the fact but of all the factual material which have led to the inference of fact. If the detenue is not informed about his right as enshrined in the Constitution, the opportunity granted by the Constitution itself becomes an exercise in futility if not a nullity.”
Senior Advocate R. A. Jan represented the Petitioner while AAG Satinder Singh Kala represented the Respondents.
The petition, before the High Court, had been filed at the instance of the detenue by his wife challenging the detention order passed by the District Magistrate Srinagar under the provisions of Section 8 of the Jammu & Kashmir Public Safety Act,1978 on the ground that his activities were prejudicial to the maintenance of Security of the State. He had been directed to be lodged at district Jail, Kathua Jammu, where he has been undergoing detention.
The detenue was arrested during the intervening night of July 13-14, 2024. In the morning hours, the detenue was told that he had been detained under provisions of the Act. It was stated that the detenue was not provided with the order of detention, grounds of detention or any other relevant documents, on the basis whereof the impugned order was passed by the District Magistrate, Srinagar. Thereafter, the detenue was taken to the District Jail.
It was the case of the appellant the District magistrate Srinagar had passed order of detention on vague and irrelevant grounds. Till date, no FIR had been registered against the detenue, which was also clear from the grounds of detention. In the grounds of detention, no incident was susbstantiated by any document as to in what manner the detenue was responsible for violence in the valley.
It was also submitted that the grounds mentioned in the detention order were vague so much so, that one of the allegations raised against the detenue was that he is a lawyer by profession and a close relative of Mian Abdul Qayoom, Senior Advocate, J&K High Court. The Detenue only met his uncle Mian Abdul Qayoom when he was jailed and except him he has never met anyone else, or visited any jail. As a lawyer, it was his professional duty to provide legal assistance. The detaining authority had not mentioned any date or document which has supported the allegations mentioned in the grounds of detention. It is not stated as on which date, year or month detenue on Human Rights Day, tried to internationalise the Kashmir dispute, along with terrorist and secessionist groups like Syed Ali Shah Geelani, Yaseen Malik etc.
The respondents, on the other hand, contended that the detenue met Mian Abdul Qayoom during his detention at Agra Jail and received orders from him to act as a spokesperson for terrorists and secessionists. He also visited several jails where the detenue spoke with terrorists and secessionists and promised them support in both High Court as well as in the Lower Courts. Pursuant to the detention order, the warrant was executed through concerned police, who handed over the detenue to Assistant Superintendent District Jail, Kathua, who took over the detenue against proper receipt and lodged him in the jail.
As per the Bench, the submission with respect to the allegation against the detenue of having organized seminars along with Syed Ali Shah Geelani and Yasin Malik on Human Rights Day being vague and ambiguous was justified as the respondents had nowhere stated as to on which date, month or year such an act was committed by the detenue.
It was also noted that the detenue had not specifically shown to have indulged in subversive or anti-national activities warranting his preventive detention. “The learned senior counsel is quite right in submitting that the detaining authority has passed the impugned order on flimsy grounds inasmuch as one of the grounds taken in support of the detention is that the detenue is an advocate by profession and a relative of Mian Abdul Qayoom, Sr. Advocate”, it said.
The Bench further explained, “...the acts of the detaining authority are subject to judicial review and the authority is not immune to it ipso facto. The subjective satisfaction is the condition precedent for the exercise of power conferred on the executive and the constitutional Court can always examine whether the requisite satisfaction is arrived at by the authority, if it has not, the exercise of power would be bad. In this case the detaining authority has not based the impugned order on its subjective satisfaction; in reaching to the requisite satisfaction. The detaining authority has not applied its mind to the relevant circumstances, the detention order is based on material extraneous to the scope and purpose of the statute. The grounds on which the impugned order has been based are not only vague, but illusive also.”
“There is neither any clarity nor any live and proximate link between any past conduct of the detenue, and the imperative need to detain him. The Advisory Board has also not specified effectively the sufficient cause for the detention of the detenue”, it further added.
Referring to the judgment of the Apex Court in Jaseela Shaji vs. Union of India (2024), the Bench said, “The grounds of detention must be self – sufficient and self – explanatory. The detaining authority is under an obligation to furnish all the pertinent and proximate facts and material relied upon in passing the detention order to the detenue. In the instant case the relevant material was not supplied to the family of the detenue or to the detenue even on their request, which was essential for making an effective representation.”
Thus, allowing the petition, the Bench quashed the impugned detention order.
“The detenue namely Miyan Muzaffar S/o Miyan Mohammad Yousuf R/o Barzulla Bulbulbagh, Srinagar, is directed to be set at liberty forthwith, if not required in any other case”, the Bench concluded.
Cause Title: Miyan Muzaffar v. UT Of Jammu & Kashmir (Case No.: HCP No. 281/2024)
Appearance:
Petitioner: Senior Advocate R. A. Jan, Advocate Suhail Mehraj
Respondents: AAG Satinder Singh Kala
