SRINAGAR: Justice Sanjeev Kumar of the Jammu and Kashmir High Court has quashed the detention order of Shafayat Amin Shah, a detainee who had been placed under preventive detention with the aim of preventing him from engaging in activities prejudicial to the security of the state. The order, numbered 113/DMS/PSA of 2022 and dated April 9, 2022, was issued by the District Magistrate Shopian.
Shah’s father had filed a petition under Article 226 of the Indian Constitution, seeking the quashing of the detention order. The petition contended that the detaining authority had failed to demonstrate awareness of whether Shah had applied for bail in connection with Case FIR No. 130/2020 under Sections 20, 23, 38, and 39 of the Unlawful Activities (Prevention) Act at the Zainapora Police Station. It was also argued that the grounds of detention did not explain why Shah had not been arrested for two years if the authorities possessed the disclosed information during that period.
Moreover, Shah challenged the detention order on the grounds that he had not been served with the relevant material, including the dossier, FIR, statements of witnesses, and disclosure statement, which hindered his ability to make an effective representation against his detention. It was argued that a single belated allegation related to a case registered two years ago could not serve as a basis for his detention after such a prolonged period.
In response, the respondents, represented by the District Magistrate, submitted an affidavit stating that Shah’s continued liberty would pose a threat to the security of the UT and the country. They claimed that Shah was deeply involved in anti-national activities, driven by a secessionist ideology. His activities were allegedly highly prejudicial to the sovereignty and territorial integrity of the UT and caused a sense of insecurity among the law-abiding citizens.
After considering the arguments and examining the evidence, Justice Sanjeev Kumar found that the detention order could not be sustained in the eye of the law due to a lack of application of mind by the detaining authority. The court observed that it was not apparent from the grounds of detention whether Shah had been arrested in connection with Case FIR No 130/2020 or if he had applied for bail, which should have been brought to the attention of the detaining authority by the Senior Superintendent of Police, Shopian. The court held that detaining Shah, who was already in custody for substantive offenses, without indicating any undisclosed compelling reasons, was unjustified.
Citing previous legal precedents, Justice Sanjeev Kumar emphasised that the detention order should have a proximate and live link to the activities of the detainee and that detention based on stale incidents was legally invalid. The court found that Shah’s constitutional rights were violated as he had not been provided with the material relied upon by the detaining authority to make an effective representation against his detention.
Consequently, Justice Sanjeev Kumar allowed the petition and quashed the impugned detention order. The court directed the respondents to release Shah from preventive custody immediately, provided he was not required in connection with any other case. The detention record was ordered to be returned to the respondents’ counsel. Advocate Molvi Aijaz represented the petition in the case.
