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HC quashes PSA of former spokesman of Jamaat, penalizes J&K govt for ‘illegal’ detention

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Srinagar: The High Court of Jammu & Kashmir and Ladakh has quashed a preventive detention order under the Public Safety Act against a former spokesperson of the banned Jamaat-e-Islami, terming it illegal and unjustified.

The High Court also rapped the District Magistrate and Senior Superintendent of Police of Pulwama and ordered the J&K government to pay a compensation of Rs 5 lakh to the petitioner.

In a case of advocate Ali Mohammad Lone, alias Advocate Zahid Ali, versus the Government of J&K, the single bench of Justice Rahul Bharti said, “This court cannot resist but to hold that the preventive detention of the petitioner is mala fide and illegal, ab origine and ab intra.”

“The petitioner has been made to suffer loss of his liberty for a cumulative period of more than 1080 days of preventive custody covered under the span of four detention orders in row from 2019 to ending March 2024,” the Court order, pronounced on April 3, read.

The petitioner’s ordeal with preventive detention started on March 3, 2019, when the District Magistrate Ganderbal ordered him to act in a manner prejudicial to the security of the state under the Jammu and Kashmir Public Safety Act, which allows the authorities to detain a person without trial for up to two years.

The High Court quashed this detention in July 2019.

Eight days after the release order and while he was still under detention, the government slapped another PSA against him on July 19, 2019, which was again quashed by the court on March 3, 2020. This time, preventive detention was passed by the District Magistrate of Pulwama.

The government slapped the third PSA against Lone on June 29, 2020, which was quashed by the court on February 24, 2021, holding that the passing of the detention order was based on a stale basis, being the grounds of the two detention orders earlier quashed with respect to the petitioner.

The High Court gave the present judgment on preventive detention—fourth in a row—by order passed on September 14, 2022, by the District Magistrate Pulwama, booking Lone under the PSA.

The High Court also rapped the SSP and the DM, Pulwama, for not bothering to read the previous orders quashing the PSA before passing the fourth detention order.

“If three judgments of this Court quashing preventive detention of the petitioner made three times hereto before have not been spared a passing glance, lest an application of mind, by and on the part of the SSP Pulwama, District Magistrate Pulwama, and Govt. of UT of J&K as well, then how can it be claimed by the said three authorities at their respective ends that the fourth time preventive detention of the petitioner is an outcome of an open and fair mindset acting upon a changed factual scenario?” the court observed.

“Suffice to say that the preventive detention of the petitioner is surely afflicted with malice in law, if not malice in fact, at the end of the entire chain of the preventive detention proposing, making, and confirming authorities. The very fact that the dossier and the detention order are of the same date, which is September 14, 2022, is a testament to the fact that the case of preventive detention of the petitioner was an outcome of a preconceived mindset, which was to somehow keep the petitioner chained to jail bars even if without any conviction in a criminal case. Thus, the petitioner was being fated to suffer preventive detention by his past, allegedly reckoned by the detention proposing and detention order-making authorities, to be a recurring condemnation against the petitioner,” the court observed.

The dossier of the SSP Pulwama refers to the to the petitioner as a “practicing advocate in the High Court of Jammu and Kashmir and also in the Sardar Court Srinagar.” The dossier referred to the fact to the fact that the petitioner “joined Jamaat-e-Islami upon being influenced by the written literature of Ab. Qadi Awda of Egypt.” The petitioner is referred to as having contested an assembly election in 1987 as a candidate of Muslim Muthid Mahaz from Pampore Constituency.

The High Court, while quashing the detention, directed the superintendent of the jail concerned to release the petitioner from his prison.

The High Court also penalized the government for detention under the PSA.

“Although the petitioner has claimed compensation of rupees twenty-five lacs, this court holds that a compensation of rupees five lacs would meet the ends of justice, and therefore, besides holding and declaring the preventive detention of the petitioner illegal, it also holds the petitioner entitled to compensation of rupees five lacs payable by the respondents within a period of three months from the date of this judgment,” the court said.

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