The Jammu and Kashmir administration informed the Supreme Court on Thursday that the issue of high court bar leader Mian Abdul Qayoom's detention was under consideration and a decision will soon be taken in the matter.
A bench of Justices Sanjay Kishan Kaul, Ajay Rastogi and Aniruddha Bose was told by Solicitor General Tushar Mehta that the court need not go into the merit of the case as the competent authority will soon decide it and sought some time to take instructions on the issue.
Senior advocate Dushyant Dave, appearing for Qayoom, opposed the request for adjournment and said that if required Mehta can seek instructions within 24-hours and matter may be listed for Friday.
Dave said he is willing to argue the case on merits as the matter of Habeas Corpus (produce before court) cannot be dragged in this manner.
The bench posted the matter for further hearing on July 27.
On July 15, the top court had asked the J-K administration to explain the basis for detaining Qayoom who has challenged his detention under Public Safety Act (PSA) since August 7 last year.
The top court had asked it to take into consideration various aspects including Qayoom's age, expiry of detention period and the COVID-19 pandemic.
On June 26, the top court had issued notice to the J-K administration and sought its reply on Qayoom's plea challenging his detention order.
Qayoom has also sought a direction to shift him from Tihar jail here to central jail in Srinagar on medical ground.
He has challenged the May 28 order of the Jammu and Kashmir High Court rejecting his plea against his prolonged "illegal detention" under the PSA in jails outside the UT.
He said he is a Senior Advocate with more than 40 years' standing at the Bar and has served as President of the J&K High Court Bar Association for many terms, including from 2014 till the present day.
Qayoom said he was detained on the intervening night of August 4th and 5th, 2019, under the provisions of Jammu and Kashmir Code of Criminal Procedure and thereafter, an order of detention under the PSA was passed against him on August 7, 2019.
He said that on August 8 he was taken to Central Jail, Agra, Uttar Pradesh, without any prior notice of intimation, where he was kept in solitary confinement.
He said the high court's May 28 order is ex facie unsustainable in law as it is premised on "stale, irrelevant, remote, vague, imprecise and deficient" grounds of detention.
"The impugned judgment and order concluded that most of the grounds in the detention order 'are somewhat clumsy' which implies that the High Court too found them wanting. Placing reliance on the doctrine of severability as enunciated by this Court in Gautam Jain versus Union of India...the High Court then proceeds to uphold the detention order solely on one ground," his appeal said.
He said the high court makes it abundantly clear that the detention order has been upheld solely on one ground -- the four FIRs dating back to 2008 and 2010, as enumerated in the detention order.
"These FIRs are stale, irrelevant and have no proximate, pertinent or live link to the present, and are thus superfluous and extraneous to the satisfaction required in law qua the tendency or propensity to act in a manner prejudicial to public order. Pertinently, even in the said decade old 4 FIRs, the Petitioner was neither arrested, nor any charge sheet ever filed by the police against the Petitioner," he added in his plea.
Qayoom said he had already been detained in 2010 on the basis of the said FIRs under the PSA, and the said detention was subsequently revoked.
"Thus, the same FIRs cannot be used to pass another order of detention under the PSA, as held by this Hon'ble Court...," his plea said.
Qayoom said he is suffering from serious health ailments and is at a high-risk vulnerability for COVID-19 due to his co-morbid conditions.
"The Petitioner has numerous serious medical conditions for which he has been receiving treatment for the last 25 years under the care and supervision of his doctors in Srinagar, Kashmir. The Petitioner is also dependent on his family for ensuring the regular and daily intake of medicines and regular injections," he added.
As an interim prayer, he sought his transfer to Central Jail, Srinagar, during the pendency of the present petition, ensuring that all necessary medical precautions are taken qua COVID-19.
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