J&K HC quashes detention of NCP member, says his activities were of a normal politician in a democracy

The single judge bench quashed the February detention order and directed that he be released forthwith

DetentionImage Courtesy:lawsisto.com

The Jammu and Kashmir High Court quashed a detention order passed in February against an NCP member while he still under arrest. The court held that the activities that were made the basis for detention are regular activities of a politician in a democracy

The petition was filed by the detenu, Ali Mohammad Sagar, a member of the National Conference Party, who was arrested on August 6, 2019 under sections 107 [Security for keeping the peace in other cases] and 151 [ Arrest to prevent the commission of cognizable offence] of the CrPC and an order of detention was passed against him on February 5, under the J&K Public Safety Act.

The detention order has been challenged on the grounds that it is unconstitutional, illegal and bad in law; lacks subjective satisfaction and is based on mere apprehension. The counsel for the petitioner, Shuja-ul-Haq pointed out that that the detention order was passed while disregarding the fact that the detenu was already in custody at that time and the detention order is liable to be quashed since there is no mention of any cogent and compelling reasons justifying the detention.

The respondents, on behalf of the detaining authority contended that it was found necessary to detain the detenu to prevent him from acting in a manner prejudicial to the maintenance of public order. The respondents further mentioned that the detention order gives cogent reasons wherein the detenu’s July 2019 address is mentioned. In his address, the detenu had allegedly stated that if Article 370 & 35 (A) are abrogated he will unite and raise voice against Union of India and asked party workers to inform the youth of Khanyar Constituency to be ready for mass agitation if Article 370 is revoked. The detention order based on the ground that the detenu has been very vocal against abolishing of Article 370 and 35(A) of Constitution of India and also against bifurcation of erstwhile J&K State. The order also points out that the detenu was able to convince your electorate to come out and vote in huge numbers even during peak militancy and poll boycotts.

The single judge bench of Justice Sindhu Sharma held that the grounds relied upon in the detention order are in fact normal activities of a politician in a democracy. The court stated that his opposition to the abrogation of Articles-370 & 35(A) of the Constitution of India is not something new, and opined that the grounds of detention are rather fragile and do not justify his detention. Reliance was placed on a case decided by the apex court, Mohd. Yousuf Rather vs. State of Jammu and Kashmir and others, (AIR 1979 SC 1925), whereby the detenu was alleged to be a Naxalite and the court had held that a detenu has two rights under Article 22(5) of the Indian Constitution; a.) to be informed, as soon as may be, of the grounds on which the order of detention is based and b.) to be afforded the earliest opportunity of making a representation against the order of detention. The court held thus,

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.

The High Court held that the detention was also bad in law because the detenue was already under arrest when the detention order was passed and there is nothing on record to show that the detaining authority was aware of the fact or that the detenu was likely to be released. Reliance was placed on another apex court judgment in Vijay Kumar vs. Union of India & ors. (AIR 1988 SC 934) whereby the court had held that in absence of compelling reasons as follows would make the detention illegal:            

“(i) awareness of the detaining authority of the fact that the detenu is already in detention and

(ii) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.”

The court also observed that the detention order failed to mention the dates on which certain protest rallies were addressed by the detenu thus failing to prove a nexus between these rallies and the abrogation of the Articles as mentioned before.

The court held the detention order to be illegal on these grounds and quashed the same and directed that the detenu be released forthwith, provided he is not required in any other case.

The order may be read here:


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