Excelsior Correspondent
SRINAGAR, Mar 10: The Division Bench of High Court today set aside the single bench judgments and held that extension of detention order under Public Safety Act (PSA) does not mean a fresh detention and need to be challenged afresh before the Court.
The Division Bench of Justice Ramalingam Sudhakar and Justice Ali Mohammad Magrey while setting aside the four judgments passed by the single bench of the High Court said the judgments passed by the Writ Court does not declare the exact position in the law as such restored the four petitions wherein detention orders were challenged and directed Registry to list these petitions for hearing before an appropriate Bench in the next available cause list.
“In light of all what has been discussed and the apex court rulings on preventive detention referred to above we are of the considered view that the impugned judgment dated 01.02.2017 rendered by the learned Writ Court does not state the correct position in the law as such set aside”, adding with “Consequently, the orders passed on 01.02.2017 by the learned Single Judge in three other Heabus Corpus Petitions, are also set aside. The Heabus Corpus Petition are restored to file”, DB directed.
Court after extensive deliberations and in view of Supreme Court rulings concluded that the order extending the detention does not become a detention order and need not to be challenged afresh if there is basic detention already under challenge.
“Therefore, the finding that the detention order loses its validity consequent to the extension order is not the correct position of law. The Section 18 does not have the characteristics of a detention order passed in terms of Section 8 (1) of the Act. In fact there is nothing in the extension order to show that there are reasons or grounds to support the detention order as is the case of a detention order passed in terms of Section 8 in the present case. In any event, arguing that there is some material that is not enclosed as part of the Section 18 order”, read the judgment of Justice Lingam and Justice Magrey.
Court has held that the petition in which the basic detention orders is challenged will not lose its validity nor can it be closed merely because the extension order (Section 18 Order) has not been challenged. “In this view of the matter, the finding of the learned single Judge of closing the Habeas Corpus petition on the ground that the order of extension has not been challenged may not be the correct position of law”, theJudgment reads.
Court with reference of Chapter IV of the Jammu and Kashmir Public Safety Act 1978 said it becomes axiomatic that the Government can detain a person when it is satisfied that, with a view to preventing that person from acting in any manner prejudicial to the security of the State or maintenance of the public order, it may do so.
Differentiating the basic detention and its extension court observed that there is no other provision in the Act akin to Section 8 thereof in the instant petition. Therefore, if a person has to be detained, he can be detained only on any of the grounds mentioned in Section 8 of the Act, by the authorities enumerated therein.
Court in view of deliberation of the parties and keeping in view of the law laid down said the notion sought to be propounded by the State counsel that with the passing of Government order extending the period of detention, the initial order of detention, which formalizes the satisfaction of the detaining authority, loses its efficacy sounds illogical and contrary to the scheme and provisions of preventive detention law.
“Applying the law, as settled and laid down by the Supreme Court, we are of the considered opinion that the learned Writ Court was not right in holding that the appellants were required to place on record and challenge the orders passed by the Government under Section 18 of the Act extending their period of detention and then alone the Court could grant any effective relief in their favour”, DB said.
“The learned Writ Court was also not correct in holding that even if the original detention order was quashed, the detainee would continue to be in detention unless the order passed by the Government under Section 18 of the Act, extending his detention, is quashed”, DB said.
Four Letters Patent Appeals (LPAs) were filed against the judgment of the Writ Court dated 01.02.2017 rendering the Heabus Corpus petitions in fructuous in view of extending the period of detention of the petitioners (Appellants).
During the pendency of these petitions, the Government, passed identical orders for all the four appellants, directing that they be detained under PSA for a further period of three months.
During the course of hearing of these petitions, an objection was taken on behalf of the State that since the detention orders had been extended for a further period of three months by separate orders passed under Section 18 of the Act, and since these extension orders have neither been challenged, nor brought on record, no relief could be granted to the writ-petitioners.
This argument on behalf of the State-respondents found favour with the Writ Court which, by its judgment dated 01.02.2017, disposed of these with liberty to file fresh petition by challenging the extension orders
DB after perusal of the writ court judgment, observed that counsel on behalf of the petitioners submitted before the Writ Court that it was not necessary for the petitioners to challenge the extension order by which the period of detention had been extended.
Court said that preventive detention has been held to be a necessary evil, and liberty of an individual is curtailed, within reasonable bounds, for the good of the people. “However, there are certain safeguards to be fulfilled while detaining a person under the law providing for such detention. In so far as the
Jammu and Kashmir Public Safety Act 1978 is concerned, Chapter IV thereof, deals with the power to make an order detaining a person”, DB said.
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