Excelsior Correspondent
Srinagar, May 22: High Court today said the detenue could not have been detained by the authority by taking recourse of Public Safety Act when he was already in their custody.
Quashing detention order passed by the District Magistrate Baramulla against one Mohammad Syed Malik of Bomai Sopre, Justice M K Hanjura directed the authorities to release him from the preventive custody forthwith if not required in any other case.
“Testing the instant case on the touchstone of the law laid down, the detenue could not have been detained after taking recourse to the provisions of the Act of 1978, when he was already in the custody of the police authorities”, Justice Hanjura recorded in the judgment.
Court said, his custody in police for the offence has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release, but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application.
Court said, in the event of his release on bail, the State could have exercised its right to knock at the doors of a higher forum and this single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail.
“It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision”, Justice Hanjura said.
The main plank of the argument of the counsel for the petitioner-Malik was that since the detenue was in custody of the police for a substantive offence and, therefore, there was no need to direct his preventive detention.
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