Srinagar: Terming the detention of Ali Mohammad Sagar, National Conference (NC) general secretary, as illegal, the J&K High Court ordered the government to “set him at liberty”.
Sagar was one of the scores of political leaders and civil society activists taken in to custody in the aftermath of the abrogation of the autonomy of Jammu and Kashmir in August 2019.
His son agitated the detention in J&K High Court which said “the detention order of detenu is illegal because the detaining authority has not shown its awareness to the fact that the detenu was already in custody in view of the law laid down”.
Pronouncing the judgment Justice Sindhu Sharma said that there was no need to advert to the other grounds taken in the petition.
“(Sagar’s) petition is allowed and the impugned detention order No. DMS/PSA/145/2020 dated 05.02.2020 passed by the District Magistrate, Srinagar is quashed accordingly”, he ordered.
He directed the respondents to set the detenu at liberty forthwith, with a rider “provided he is not required in any other case”.
The detention was assailed by Sagar through his lawyer on the grounds that it was illegal and that he was already in custody under sections 107/151 Cr.P.C when he was re-detained under the “controversial” Public Safety Act.
The petitioner said, “He has always worked within the framework of Constitution of India and that as an opposition party leader it was his duty to criticize policies of the Government so that they are within the framework of Constitution of India”.
The senior additional advocate general of J&K countered the argument saying the detaining authority has passed the order of detention after carefully examining the record and recorded its satisfaction.
“It was found necessary to detain Sagar to prevent him from acting in a manner prejudicial to the maintenance of public order. All statutory and constitutional guarantees, have been complied and the grounds of detention were provided to him within the statutory period prescribed under section 13 of PSA”, he said.
The court considered the matter in light of a 1979 Supreme Court case titled Mohd. Yousuf Rather versus. State. The authorities had detained Rather labeling him “a die-hard Naxalite”. He was alleged of being involved in activities prejudicial to the maintenance of public order besides confronting the then Chief Minister and founder of NC, Sheikh Mohammmad Abdullah.
Justice Sharma observed. “even though Rather was a die-hard Naxalite and as compared to the grounds of detention in Sagar’s case, which in a democracy are the normal activities of a politician, who has been a member of the legislature as well as the Member of Cabinet in the erstwhile State of Jammu & Kashmir”.
“In my opinion, the grounds of detention of the detenu are so fragile in the present case that they do not justify his detention in view of the law laid down by the Supreme Court in case of Mohd Yousuf Rather (supra), holding that”, he said.
Referring to the interpretation of Article 22(5) by Supreme Court in Rather ‘s case Justice Sharma fell in line with its observation that a detenu has certain rights under Article 22(5) of the Constitution.
“The inclusion of an irrelevant or non- existent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the Constitutional rights of the detenu entitling him to approach the Court for relief”, he said.
He further said “there is nothing in the grounds of detention as to when and on which date he took out a protest rally with 250 party workers towards Lal Chowk after the so-called hearing, Article 35 (A) before whom as also the date on which he addressed gathering at Khansahib Budgam where he allegedly criticized the Government”.
Every such activity should have nexus with the alleged abrogation of Articles which took place on 5th & 6th of August, 2019 but no such nexus has been alleged in the grounds of detention, observed the judge.
