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| Shift Asiya to Srinagar within 48 hours: HC | | | Early Times Report
Srinagar: Observing that laws of preventive detention cannot introduce procedural measures of a punitive kind, Jammu and Kashmir High Court Thursday asked government to shift Asiya Andrabi—chairperson Dukhtaran-e-Millat—from Jammu jail to Srinagar within 48hrs.
Justice Hakeen Imtiyaz Hussein directed the government to consider the lodgment of the detenue at a place in terms of the law laid down by the Apex Court in case AK Roy Vs Union of India and others (AIR 1982 SC 710).
The ruling states, “The respondents are duly bound to faithfully honour the law laid down by the Supreme Court which is binding on all under article 141 of the constitution.”
In his direction, justice Hakeem Imtiyaz Hussein, quoting the Apex Court Judge observes, “The normal rule is that a detenue will be kept in detention in a place which is within the environs of his or her ordinary place of residence,” he said.
“Laws of preventive detention cannot, by the backdoor, introduce procedural measures of a punitive kind. It is neither fair nor just that a detenue should have to suffer detention in such place as the government may specify,” observed Justice Hakeen Imtiyaz.
The court also observed that the requirement of administrative convenience, safety and security may justify in a given case lodgment at any other place by way of an exemption only and not as a matter of general rule.
“In my view grounds for lodgment of a detenue at a place other than the place of his or her ordinary place of residence must be present at the time of detention. The detaining authority must be satisfied of these grounds at the time of detention. Since it is an exception to the general rule, the detaining authority must specifically mention the grounds in the order of detention at the time of the of the detention,” he said, adding, “ if no such grounds is stated in the order, it will be taken that no such grounds existed at the relevant time. The state cannot later supplement the grounds and justify the order by giving additional reasons particularly after the court issues a specific direction in the matter. This would amount to seeking pretext to disregard the directions.”
Observing no mention of grounds of detention for Asiya Andrabi, the court said, “The respondents (government) must comply with the directions of the apex court as also the directions of this court dated 17-06-09 within 48 hours and report compliance.”
Senior lawyer and president Kashmir Hight Court Bar Association Mian Abdul Qayoom represented petitioner (Asiya Andrabi) while NH Shah, deputy Attorney General was present from the respondents. The case has been listed on Tuesday.
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