Court said detention has been passed on flimsy grounds while the detenue is having no past or present criminal record
The court of Justice Moksha Khajuria Kazmi while overturning the decision of the Srinagar Magistrate said that the detaining authority has failed to apply its mind while passing the detention order.
Court recorded that the submissions made by counsel R A Jan representing the detenue are completely justified 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 as the respondents have nowhere stated as to on which date, month or year such an act was committed by the detenue.
“The allegation thus is certainly inexplicable, depicting complete non application of mind on the part of the detaining authority,”court said.
Court also said that the detenue is not specifically shown to have indulged in subversive or anti-national activities warranting his preventive detention.
Justice Kazmi said that the senior counsel is quite right in submitting that the detaining authority has passed the 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, Senior Advocate.
“From the above it is clear that the acts of the detaining authority are subject to judicial review and the authority is not immune to it ipso facto,” court said.
It also recorded that 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 order on its subjective satisfaction; in reaching to the requisite satisfaction,” court said.
It was also noted by Court that the grounds on which the 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. This question of law is answered in negative,” court said.
Earlier Advocate Miyan Muzaffar who is a practising lawyer at J&K High Court was arrested by police on interviewing night of 13/14 July last year. He was later on detained under the provisions of Public Safety Act and was lodged in Kathua Jail.