The High Court of Jammu Kashmir and Ladakh has quashed the detention orders of Moulana Abdul Rashid Dawoodi and Moulana Mushtaq Veeri under the Public Safety Act on Friday afternoon.
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Two separate Bench of Justice Sanjay Dhar and Justice Rajnesh Oswal passed the judgments in the cases of both the Islamic scholars and ordered their release from the jail.
The petitioner Dawoodi has challenged detention order No.65/DMA/PSA/DET/2022 dated 13.09.2022, issued by District Magistrate, Anantnag (for brevity “detaining authority”). In terms of the aforesaid order, Molvi Ab. Rashid Sheikh @ Dawoodi son of Late Ab. Rehman Sheikh resident of BadhooYaripora A/P SofiporaTakiaBehram Shah Anantnag District Anantnag (for short “detenue”) has been placed under preventive detention and lodged in Central Jail, Jammu (Kotbhalwal), in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order.
In an order, a copy of which lies with Srinagar based news agency Kashmir Dot Com, Court of Justice Sanjay Dhar while allowing the bail application of Dawoodi referenced the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under: “The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads: When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
“This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution,” the court said as per Kashmir Dot Com.
The further said “From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law.”
Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.
In Molana Veeri Case the court of Justice Rajnesh Oswal while allowing the bail application said “Perusal of the grounds of detention also reveals that the same are vague more particularly in respect of allegations leveled against the petitioner that he was delivering anti national speeches. No date, month and year of the alleged delivering of anti-national speeches have been mentioned in the grounds of detention. Law is well settled that order of preventive detention cannot be issued on vague grounds as it disables the detenue to make effective and purposeful representation against the same. Reliance is placed on judgment of the Supreme court in Jahangirkhan Fazalkhan Pathan V. Police Commissioner, Ahmedabad and another reported as (1989) 3 SCC 590, where in it has been held that the order of detention passed on vague grounds deprives the petitioner of his right to make an effective representation against the order of detention.”
The present petition is allowed and the detention order No. 64/DMA/PSSA/DET/2022 dated 13.09.2022 passed by District Magistrate, Anantnag is quashed, court said, adding that However, taking into consideration the submissions made by learned counsel for the petitioner under instructions from the petitioner in respect of the voluntary offer of the petitioner to submit an undertaking, the petitioner is directed to furnish an undertaking before the District Magistrate concerned that the petitioner will not deliver any hate or anti-national speech on any occasion. The undertaking shall be furnished by the petitioner with in the period of two days after his release from custody and the receipt of the same be furnished before Registrar, Judicial of this court. The petitioner is ordered to be released forthwith, provided he is not required in any other case, the order added. KDC
