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TRANSCRIPT
1
SYNOPSIS
1. The present Petition has been filed by the Petitioner, invoking
Article 32 of the Constitution of India, seeking, inter alia,
issuance of a writ in the nature of Habeas Corpus for
production of detenu Prof. Saifuddin Soz before this Hon’ble
Court, and an appropriate writ for quashing the order(s) of
detention passed by Government of Union Territory of
Jammu and Kashmir, Respondent No. 2, along with other
directions.
2. The detenu, Prof. Saifuddin Soz, is an octogenarian and a
former Member of Parliament, who represented the Baramulla
Constituency in the year 1983. Since then, he has been re-
elected numerous times, and has also served as a Union
Minister for Environment and Forests from 1997-99, and as
the Union Minister for Water Resources from 2006-2009. He
has also been the President of the Jammu & Kashmir Pradesh
Congress Committee, under the umbrella organization of
Indian National Congress. Aside from his illustrious career in
politics, he has also authored several books and plays on
Kashmir as well as the concept of secularism, some of which
have been outlined here:
a. Kashmir Crisis;
b. Why Autonomy to Kashmir;
c. Secularism - an Interpretation;
d. ‘Daj’ (A play in Kashmiri on abuses of Dowry system);
e. Kashmir - Glimpses of History and the Story of
Struggle.
2
3. In addition to the above, he has written essays and short
stories in Kashmiri, several articles in reputed newspapers and
journals on a variety of subjects like Islam and modernism,
rights of women, secularism, literature, education and
economics. For his efforts in translating M. Illin’s book
“100,000 Whys” from Russian to Kashmiri, (Russian Author
M Illin’s Book “100,000” was translated by Betrice Kinkele
in 1934, Prof. Soz translated English version into Kashmiri
language). Mr. Soz also received the Soviet Land Nehru
Award. He is also the recipient of several literary awards
including Soviet Land Nehru Award, All India Basic
Literature Competition Award and Competition for Literature
for Neo-Literates Award.
4. From the above, it is needless to state that Mr. Soz is a law-
abiding, peaceful Indian citizen. He has not committed any
breach of peace, neither has he disturbed the public
tranquility, nor is he likely to do any wrongful act that will
occasion a breach of peace or cause any disturbance of public
tranquility. However, Prof. Soz has been detained and put
under house arrest since August of 2019 and the reasons for
detention and arrest have never been informed till date,
thereby making his detention not only illegal, malafide and
unconstitutional, but also extremely appalling.
5. The detenu was informed of his house arrest by the security
guards of his house situated at Shehjar, Humhama Heights,
Airport Avenue, Srinagar – 190021, Kashmir in the morning
of 05.08.2019, when Respondent No. 1 Union passed a
Presidential Order revoking the status of the (erstwhile) State
3
of Jammu and Kashmir granted under Article 370 and 35A of
the Constitution of India. Ten months have passed since his
first detention, and he is yet to be informed of his grounds of
detention. All efforts by him to obtain a copy of the detention
order(s) have been of no avail due to the illegal, arbitrary
exercise of powers by the Respondent No. 2. His detention is
wholly contrary and perverse to the constitutional safeguards
laid down under Article 21 and 22, as well as the law on
preventive detention. Not only does it attract the vice of
unconstitutionality, it is also in stark contravention of the
statutory scheme of the Jammu and Kashmir Public Safety
Act, 1978 (hereinafter referred to as the “Act”), under which
the detention has purportedly been made.
6. In a nutshell, the glaring, patently illegal and unconstitutional
violations surrounding the illegal detention of the detenu can
be summarized as below:
A. The authority making the Order(s) of detention did not
communicate to the detenu the grounds on which the
order has been made, and no copy of the detention
order was provided despite repeated attempts:
i. The Constitution of India, under Article 22(5),
provides that when any person is detained in
pursuance of an order made under any law providing
for preventive detention, the authority making the
order shall, as soon as may be, communicate to such
person the grounds on which the order has been
made and shall afford him the earliest possible
opportunity of making representation against the
4
order. In the instant case, the Respondents did not
adhere to any of the constitutional safeguards to the
detenu’s fundamental right outlined above. It may
be appreciated that the authority also refused to
supply a copy of the order, despite repeated requests
by the detenu, failing which the detenu has been put
under detention for a prolonged period with no
recourse under law.
ii. Aside from not being furnished with the grounds of
detention, and being virtually denied of the right to
make a representation, the detenu has been kept in
detention without reasons for a period of more than
ten months on the date of filing this petition. It may
be appreciated, that the maximum period of
detention as envisaged under the Act, as laid down
under Section 18, shall be three months in the first
instance extendable up to 12 months, when the
person is acting in a manner prejudicial to the
maintenance of public order; it is six months in the
first instance extendable up to two years for persons
acting in any manner prejudicial to the security of
the State. In the present case, the detenu has been a
law-abiding citizen in a democratic country and has
not committed any offence contemplated under the
Act, particularly the offences mentioned above,
therefore any detention order(s) passed under the
Act is liable to be set aside.
5
B. The detenu was denied the right to making a
representation against the order(s) of detention, in
flagrant abuse of constitutional guidelines, as well as
the statutory scheme:
i. Due to non-furnishing of grounds of detention to the
detenu as well as the non-supply of a copy of the
detention order(s), the detenu could not make a
representation against the detention order(s) at the
earliest opportunity. In fact, it has been ten months
since the detenu was placed on house arrest as per
the purported directions of Respondent No. 2, and
he has still not been furnished a copy of the Order in
order to be able to make a representation, as set out
under Article 22(5) as well as Section 13 of the
Jammu & Kashmir Public Safety Act, 1978.
ii. This Hon’ble Court has time and again held that the
only precious and valuable right guaranteed to a
detenu is of making an effective representation
against the order of detention. Such an effective
representation can only be made by a detenu when
he is supplied the relevant grounds of detention,
including the materials considered by the detaining
authority for arriving at the requisite subjective
satisfaction to pass the detention order. Since the
material is not supplied to the detenu, the right of
the detenu to file such representation is impinged
upon and the detention order is resultantly vitiated.
6
iii. This Hon’ble Court has passed several judgments on
this point. In Ibrahim Ahmad Batti v. State of
Gujarat, (1982) 3 SCC 440, this Hon’ble Court,
relying on its earlier judgments in Khudiram Das v
State of W. B., (1975) 2 SCR 81; Icchu Devi
Choraria v. Union of India, (1980) 4 SCC 531, in
paragraph 10 of the judgment, has held as under:
“Two propositions having a bearing on the
points at issue in the case before us, clearly
emerge from the aforesaid resume of decided
cases: (a) all documents, statements and
other materials incorporated in the grounds
by reference and which had influenced the
mind of the detaining authority in arriving at
the requisite subjective satisfaction must be
furnished to the detenu alongwith the grounds
or in any event not later than 5 days
ordinarily and in exceptional circumstances
and for reasons to be recorded in writing not
later than 15 days from the date of his
detention, and (b) all such material must be
furnished to him in a script or language
which he understands and failure to do either
of the two things would amount to a breach of
the two duties cast on the detaining authority
under Article 22(5) of the Constitution”.
C. By keeping the detenu under a prolonged, indefinite
detention, the Respondents indulged in the violation of
7
the right to life and personal liberty, a fundamental
right guaranteed to the detenu:
The detention of Prof. Saifuddin Soz is wholly contrary
and perverse to the constitutional safeguards laid down
under Article 21 and 22, as well as the law on preventive
detention. Not only does it attract the vice of
unconstitutionality, it is also in contravention of the
statutory scheme of the Jammu and Kashmir Public Safety
Act, 1978, under which the detention has purportedly been
made. This Hon’ble Court has oft-repeated the value and
primacy of the right under Article 21, which guarantees an
individual personal liberty. In State of Maharashtra &
Ors. v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613,
this Hon’ble Court while considering a case of preventive
detention, reiterated the primacy of the right under Article
21 as follows:
“Personal liberty: Precious right
23. There can be no doubt that personal liberty is a
precious right. So did the Founding Fathers believe
because, while their first object was to give unto the
people a Constitution whereby a Government was
established, their second object, equally important, was
to protect the people against the Government. That is
why, while conferring extensive powers on the
Government like the power to declare an Emergency,
the power to suspend the enforcement of fundamental
rights or the power to issue ordinances, they assured to
the people a Bill of Rights by Part III of the
Constitution, protecting against executive and
8
legislative despotism those human rights which they
regarded as “fundamental”. The imperative necessity
to protect those rights is a lesson taught by all history
and all human experience. Our Constitution makers
had lived through bitter years and seen an alien
Government trample upon human rights which the
country had fought hard to preserve. They believed like
Jefferson that “an elective despotism was not the
Government we fought for”. And, therefore, while
arming the Government with large powers to prevent
anarchy from within and conquest from without, they
took care to ensure that those powers were not abused
to mutilate the liberties of the people (vide A.K.
Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC
(Cri) 152] and Attorney General for India v. Amratlal
Prajivandas [(1994) 5 SCC 54 : 1994 SCC (Cri) 1325]
).”
D. The conduct of the detenu reveals that he has no
criminal antecedent, and has not indulged in any
communication or he has not made any statement, or
acted towards committing an offence under the Act, or
even otherwise.
The powers to make orders for detention under the Jammu
and Kashmir Public Safety Act, 1978 have been outlined
under Section 8 of the Act. The Government may direct for
the detention of the person if it is satisfied that any person
is acting in any manner prejudicial to the security of the
State, or the maintenance of the public order. In this
regard, it may be appreciated that the detenu is a senior
9
citizen and an octogenarian. As already stated, the detenu
is a man of letters and is of an academic bent. His conduct,
both prior to and post the revocation of status of the State
of Jammu and Kashmir, has been peaceable. He has no
criminal antecedent, and has never in the past committed
any offence, let alone those of disturbing the security of
the State or public tranquility in any manner as described
under Section 8(3) of the Act. Furthermore, the detenu has
always advocated for the Union of India and consistently
upheld the Constitutional principles, respect for the nation
and vehemently opposed and separatist or anti-India voices
in J&K (despite his daughter being kidnapped by such
forces). He has consistently demonstrated an unwavering
loyalty to the Indian Constitution even in the face of
separatist threats. He therefore cannot be considered by
any stretch of imagination to be a threat to public safety.
For someone who has been following constitutional
methods for his entire long and storied career cannot at this
advanced stage, even be suspected of having any intention
whatsoever to do anything against Constitutional values.
Furthermore, there is no track record or criminal
antecedent of the detenu in respect of such an offence.
7. In the light of the facts and circumstances, the Petitioner has
thus been constrained to file this writ in the nature of habeas
corpus under Article 32, for consideration of this Hon’ble
Court.
10
LIST OF DATES
05.08.2019 By way of a Presidential Order, the status of the
(now erstwhile) State of Jammu and Kashmir
under Article 370 and 35A of the Constitution of
India was revoked. The Presidential Order
proposed that the state be bifurcated as Union
Territory of Ladakh (centrally administered) and
as Union Territory of Jammu & Kashmir (with
its Legislative Assembly). Prior to this
announcement, several leaders belonging to the
Parties in opposition of the ruling dispensation
were placed under house arrest with internet and
phone services curtailed, and Orders under
section 144 of the Jammu & Kashmir Code of
Criminal Procedure, 1989 preventing the
assembly of more than four persons in public
spaces, were imposed.
On the same day, the detenu had emerged to take
a walk in the premises of his property, with the
intention to visit an ailing neighbor. It was then
that the guards to his property informed him that
he could not go out as he has been placed under
house arrest. The guards further informed him
that in the intervening night, the concerned
S.H.O. had visited the premises when he had
passed on the instructions for keeping the detenu
under house arrest, purportedly under the Jammu
& Kashmir Public Safety Act, 1978.
11
The detenu had approached the Jammu &
Kashmir Police, again requesting for a copy of
the detention order. The Jammu & Kashmir
Police, refusing the request, intimated the detenu
that written orders have been received by the
concerned officers for implementation of the
order, but a copy cannot be provided to the
detenu.
The detenu wrote a letter to the Principal Secy.,
Ministry of Home Affairs, Union Territory of
Jammu & Kashmir, requesting her to release the
detenu as he had not committed any offence
under any Act to be detained without
communication of reason for a prolonged period.
Since 05.08.2019, the detenu has been
wrongfully detained and kept in house arrest for
an indefinite period, grounds of which have
neither been communicated to him, nor has a
copy of the impugned detention order been
furnished to him despite several requests over the
course of ten months, which is violative of the
exercise of the fundamental rights of the detenu.
On 17-05-2020 the detenu approached the
Petitioner, Mrs. Mumtazunnisa Soz sharing with
her the circumstances of his house arrest and
highlighting his arbitrary detention and the
illegal and uncooperative actions of the
Respondents.
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Hence, this petition.
IN THE SUPREME COURT OF INDIA
(CRIMINAL WRIT JURISDICTION)
[Order XXXVIII of Supreme Court Rules, 2013]
WRIT PETITION (CRL.) NO. _____ OF 2020
(Writ Petition under Article 32 of the Constitution of India, in the
Nature of Habeas Corpus for the Production of Prof. Saifuddin
Soz)
IN THE MATTER OF:
Mrs. Mumtazunnisa Soz D/o
Late Gulam Nabi Shah R/o
Khanpora Baramulla,
Kashmir A/P Shehjar,
Humhama Heights, Airport
Avenue, Srinagar Kashmir -
190021
(W/o Prof. Saifuddin Soz )
….PETITIONER
VERSUS
1. UNION OF INDIA,
MINISTRY OF HOME
AFFAIRS,
Through its Secretary
South Block, New Delhi -
110001
….RESPONDENT NO. 1
13
2. UNION TERRITORY OF
JAMMU & KASHMIR,
(Part of the erstwhile State of
Jammu & Kashmir)
Through its Secretary, Home
Department,
R. No. 2/7,
Second Floor, Main Building,
Civil Secretariat,
Jammu-180001,
And
R. No. 307, Third Floor,
Civil Secretariat,
Srinagar - 190001
….RESPONDENT NO. 2
ALL ARE CONTESTING RESPONDENTS
A WRIT PETITION UNDER ARTICLE 32 OF THE
CONSITUTION OF INDIA IN THE NATURE OF A WRIT
OF HABEAS CORPUS FOR PRODUCTION OF DETENU
PROF. SAIFUDDIN SOZ BEFORE THIS HON’BLE
COURT AND FOR AN APPROPRIATE WRIT QUASHING
THE IMPUGNED ORDER(S) OF DETENTION AND/OR
FURTHER DIRECTIONS.
To,
THE HON’BLE CHIEF
JUSTICE OF INDIA AND HIS
COMPANION JUDGES OF
THE HON’BLE SUPREME
COURT OF INDIA.
14
THE HUMBLE PETITION OF
THE PETITIONER ABOVE-
NAMED:
MOST RESPECTFULLY SHEWETH:
1. The present Petition has been filed by the Petitioner, invoking
Article 32 of the Constitution of India, seeking, inter alia, a
writ in the nature of habeas corpus for production of detenu
Prof. Saifuddin Soz before this Hon’ble Court, and an
appropriate writ for quashing the order(s) of detention passed
by Respondent No. 2, along with other directions.
2. The Petitioner is the Mrs. Mumtazunnisa Soz D/o Late Gulam
Nabi Shah (W/o Prof. Saifuddin Soz) R/o Khanpora
Baramulla, Kashmir A/P Shehjar, Humhama Heights, Airport
Avenue, Srinagar Kashmir – 190021.
3. The detenu, Prof. Saifuddin Soz, is an octogenarian and a
former Member of Parliament, who first held a seat in the
year 1983. Since then, he has been re-elected numerous times,
and has also served as a Union Minister for Environment and
Forests from 1997-99, and as the Union Minister for Water
Resources from 2006-2009. He has also been the President of
the Jammu & Kashmir Pradesh Congress Committee, under
the umbrella organization of Indian National Congress. Aside
from his illustrious career in politics, he has also authored
several books and plays, some of which have been outlined
here:
a. Kashmir Crisis;
b. Why Autonomy to Kashmir;
15
c. Secularism - an Interpretation;
d. ‘Daj’ (A play in Kashmiri on abuses of Dowry system);
e. Kashmir- Glimpses of History and the Story of
Struggle.
In addition to the above, he has written essays and short
stories in Kashmiri, several articles in reputed newspapers and
journals on a variety of subjects like Islam and modernism,
rights of women, secularism, literature, education and
economics. For his efforts in translating M. Illin’s book
“100,000 Whys” from Russian to Kashmiri, Mr. Soz also
received the Soviet Land Nehru Award. He is also the
recipient of several literary awards including Soviet Land
Nehru Award, All India Basic Literature Competition Award
and Competition for Literature for Neo-Literates Award.
From the above, it is needless to state that Prof. Soz is a law-
abiding, peaceful Indian citizen. He has not committed a
breach of peace, neither has he disturbed the public
tranquility, nor is he likely to do any wrongful act that will
occasion a breach of peace or cause any disturbance of public
tranquility. Therefore, his detention is not only illegal,
malafide and unconstitutional, it is also extremely appalling.
BRIEF FACTS
4. The brief background leading up to the filing of the present
Petition are as follows:
(a) On 05.08.2019, by way of a Presidential Order, the status
of the (now erstwhile) State of Jammu and Kashmir under
Article 370 and 35A of the Constitution of India was
16
revoked. The Presidential Order proposed that the state be
bifurcated as Union Territory of Ladakh (centrally
administered) and as Union Territory of Jammu &
Kashmir (with its Legislative Assembly). Prior to this
announcement, several leaders belonging to the Parties in
opposition of the ruling dispensation were placed under
house arrest, internet and phone services were curtailed,
and Orders under section 144 of the Jammu & Kashmir
Code of Criminal Procedure, 1989 preventing the
assembly of more than four persons in public spaces,
were imposed.
(b) In the morning of 05.08.2019, the detenu had emerged to
take a walk in the premises of his property, with the
intention to visit an ailing neighbor. It was then that the
guards to his property informed him that he could not go
out as he has been placed under house arrest. The guards
further informed him that in the intervening night, the
concerned S.H.O. had visited the premises and had
passed on the instructions for keeping the detenu under
house arrest, purportedly under the Jammu & Kashmir
Public Safety Act, 1978 (hereinafter “the Act”).
A copy of the Jammu & Kashmir Public Safety Act, 1978
is being annexed and marked herewith as ANNEXURE
P-__. (Pgs. __ to __)
(c) Since this incident, the detenu has been running from
pillar to post to obtain a copy of the detention order, but
to no avail. The detenu had been constantly telling the
guard at his residence to provide him written instructions
from the UT Govt. of Jammu and Kashmir regarding his
placement under house arrest since August 5, 2019. The
17
Jammu & Kashmir Police, refusing the request, intimated
the detenu that written orders have been received by the
concerned officers for implementation of the order, but a
copy cannot be provided to the detenu.
(d) On 15-05-2020, the detenu wrote a letter to the Principal
Secy., Ministry of Home Affairs, Union Territory of
Jammu & Kashmir, requesting her to release the detenu
as he had not committed any offence under any Act to be
detained without communication of reason for a
prolonged period. A copy of the Letter dated 15-05-2020
that the detenu had written to the Principal Secretary,
Ministry of Home Affairs, Union Territory of Jammu &
Kashmir, is annexed and marked herewith as
ANNEXURE P-__. (Pgs. ___ to ___)
(e) Thus, since 05.08.2019, the detenu has been wrongfully
detained and kept in house arrest for an indefinite period,
grounds of which have neither been communicated to
him, nor has a copy of the impugned detention order been
furnished to him despite several requests over the course
of ten months, which is in violation of the exercise of the
fundamental rights of the detenu.
(f) On 17-05-2020, the detenu approached the Petitioner,
sharing with her the circumstances of his house arrest and
highlighting his arbitrary detention and the illegal and
arbitrary actions of the Respondents.
5. It is pertinent to mention herein that the impugned detention
order(s) passed by the Respondents is prima facie illegal, and
done in an absolutely arbitrary exercise of power. Assuming
though not admitting that the detention order(s) have been
18
passed under section 8 of the Public Safety Act, the conduct
of the Respondent No. 2 is wholly contrary to section 13 of
the Act, which provides that the grounds of order of detention
is to be disclosed to the persons affected by the order, i.e. the
detenu, as soon as may be, but ordinarily not later than five
days and in exceptional circumstances and for reasons to be
recorded in writing, not later than ten days from the date of
detention. In the instant case, it has been ten months since the
detenu has been placed under house arrest, and despite
approaching high-ranking officials of the Respondent No. 2,
the grounds of the house arrest have still not been informed to
him.
6. It may be further mentioned that the aforesaid section also
provides that the authority making the order shall afford the
detenu the earliest opportunity of making a representation
against the order, to the Government of Jammu & Kashmir.
7. Moreover, the maximum period of detention as envisaged
under the Act, as laid down under section 18, shall be three
months in the first instance extendable up to 12 months, when
the person is acting in a manner prejudicial to the
maintenance of public order; it is six months in the first
instance extendable up to two years for persons acting in any
manner prejudicial to the security of the State. In the present
case, the detenu has been a law-abiding citizen in a
democratic country and has not committed any offence
contemplated under the Act, particularly the offences
mentioned above, therefore any detention order(s) passed
under the Act is liable to be set aside.
19
8. That in addition to the above, the detenu was never served
with the material that formed the alleged basis of the grounds
of the impugned detention order(s), and the non-supply of the
same impairs their right of effective representation and
vitiated the impugned detention on the anvil of Articles 14
and 22 of the Constitution of India, rendering it liable to be
quashed by this Hon’ble Court.
9. Furthermore, the fact that the detenu has been detained for ten
months, which is larger than the first instance periods
prescribed under section 13, which would in turn imply that
there should exist more than one detention order. The grounds
of any other such detention orders, if present, have also not
been communicated to the detenu. Despite the law on
detention being abundantly clear, the Respondents have
sought to detain the detenu without any facts or particulars,
the absence of which would violate Article 21.
10.That the detention of the detenu without the procedure
established by law, and the action of the Respondents being
arbitrary, whimsical and fanciful deserves to be quashed by an
appropriate writ of this Hon’ble Court on the anvil of Articles
14, 21 and 22 of the Constitution.
11.In furtherance to the above, the Petitioner is therefore filing
the present Petition under Article 32 of the Constitution, on
the following grounds, inter alia, which are taken without
prejudice to one another. The Petitioner craves leave from this
20
Hon’ble Court to raise any further additional grounds at a
later stage:
GROUNDS
A. BECAUSE the Petitioner has reasonable grounds for
believing that the detenu has been placed under house arrest
in an unlawful and manifestly illegal exercise of powers by
the Respondents, and in total disregard of the procedure
established by law;
B. BECAUSE a copy of the impugned order(s) of detention was
not provided to the detenu within the statutory period, and
even after that, for a period of ten months;
C. BECAUSE grounds for arrest have not been furnished to the
detenu even till date, and the detenu has been kept under
detention for an indefinite period;
D. BECAUSE the Constitution of India, under Article 22(5),
provides that when any person is detained in pursuance of an
order made under any law providing for preventive detention,
the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order
has been made and shall afford him the earliest possible
opportunity of making representation against the order.
E. BECAUSE the material on the basis of which the impugned
order(s) of detention is claimed to have been passed by the
Respondents is neither disclosed in the grounds of detention
nor supplied to the detenu, thereby depriving the detenu of his
fundamental right of making effective representation
guaranteed to the detenu under Article 22(5) of the
21
Consitution, as also the statutory right under Section 13 of the
Act;
F. BECAUSE this Hon’ble Court has taken the view that
documents, statements and other materials referred to or relied
upon in the grounds of detention by the detaining authority in
arriving at its subjective satisfaction get incorporated and
become part of the grounds of detention by reference and the
right of the detenu to be supplied copies of such documents,
statements and other materials flows directly as a necessary
corollary from the right conferred on the detenu to be afforded
the earliest opportunity of making a representation against the
detention, because unless the former right is available the
latter cannot be meaningfully exercised.
G. BECAUSE this Hon’ble Court has passed several judgments
on this point. In Ibrahim Ahmad Batti v. State of Gujarat,
(1982) 3 SCC 440, this Hon’ble Court, relying on its earlier
judgments in Khudiram Das v State of W. B., (1975) 2 SCR
81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC
531, in paragraph 10 of the judgment, has held as under:
“Two propositions having a bearing on the points at
issue in the case before us, clearly emerge from the
aforesaid resume of decided cases: (a) all documents,
statements and other materials incorporated in the
grounds by reference and which had influenced the
mind of the detaining authority in arriving at the
requisite subjective satisfaction must be furnished to
the detenu alongwith the grounds or in any event not
later than 5 days ordinarily and in exceptional
22
circumstances and for reasons to be recorded in
writing not later than 15 days from the date of his
detention, and (b) all such material must be furnished
to him in a script or language which he understands
and failure to do either of the two things would amount
to a breach of the two duties cast on the detaining
authority under Article 22(5) of the Constitution”.
H. BECAUSE, in a plethora of judgments, this Hon’ble Court
has held that the non-supply of material forming basis of the
grounds of detention vitiates the order of detention making is
unconstitutional and liable to be quashed;
I. BECAUSE the detenu has not indulged in any activity that
may be given the colour of an offence under the Jammu &
Kashmir Public Safety Act, 1978 and for this reason the
order(s) of detention are malafide and should be quashed;
J. BECAUSE section 8(3) of the Jammu & Kashmir Public
Safety Act, 1978 provides for specific acts and commissions
that are offences under the Act, and nothing outside of the
same may be termed as an offence under the Act. The
Order(s) of detention not detailing the same would make the
detention illegal and unconstitutional;
K. BECAUSE the aforesaid actions of the Respondents, being
not in accordance to the procedure established by law, suffers
from the vice of being arbitrary and is unconstitutional on the
anvil of Article 14, 21 and 22;
L. BECAUSE with the offences contemplated under the Act not
being committed, any order(s) of detention passed would
23
violate with impunity the constitutional guarantees of the
detenu under Articles 21 & 22 of the Constitution of India;
M. BECAUSE in a catena of cases, this Hon’ble Court has held
that personal liberty protected under Article 21 is so
sacrosanct and high in the scale of constitutional values, that it
is the obligation of the detaining authority to show that the
impugned detention meticulously accords with the procedure
established by law.
N. BECAUSE the Jammu and Kashmir Public Safety Act, 1978,
being a statute which provides for preventive detention, has to
be construed keeping Articles 21 & 22 of the Constitution in
mind, and no supposed object of the Act can be looked at to
defeat the aforesaid Articles of the Constitution.
O. BECAUSE the conduct of the detenu reveals that he has no
criminal antecedent, and has no indulged in any
communication or he has not made any statement, or acted
towards committing an offence under the Act, or even
otherwise.
12.It is submitted that the Petitioner has not filed any other
Petition before this Hon’ble Court or any other Court seeking
the same or similar relief. The Petitioner has no other equally
efficacious alternative remedy than to approach this Hon’ble
Court by way of this Petition, due to the lockdown restrictions
put in place to check the ongoing pandemic caused by
COVID-19.
PRAYER
24
It is therefore most respectfully prayed that this Hon’ble Court
may be pleased to:
a) Issue a writ in the nature of habeas corpus or any other
appropriate writ directing the Respondents to produce the
detenu, Prof. Saifuddin Soz, before this Hon’ble Court;
and/or
b) Issue an appropriate writ, direction or order quashing the
detention order(s) passed against the Petitioner;
In the alternative, to issue a direction to supply a copy of
the detention order(s) along with such other material
relevant for the detenu to be able to make a representation
in terms of Article 22(5) of the Constitution and Section 13
of the Jammu & Kashmir Public Safety Act, 1978; and/or
c) Pass such other or further orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances of
the case as well as in the interest of justice.
FOR THIS ACT OF KINDNESS, THE PETITIONER
ABOVENAMED AS IS DUTYBOUND SHALL EVER
PRAY.
DRAWN BY:
FILED BY:
DRAWN ON:
FILED ON: ADVOCATE FOR THE PETITIONER
25
26
IN THE SUPREME COURT OF INDIA
(CRIMINAL WRIT JURISDICTION)
[Order XXXVIII of Supreme Court Rules, 2013]
WRIT PETITION (CRL.) NO. _____ OF 2020
(Writ Petition under Article 32 of the Constitution of India, in the
Nature of Habeas Corpus for the Production of Mr. Saifuddin
Soz)
IN THE MATTER OF:
Mrs. Mumtazunnisa Soz D/o
Late Gulam Nabi Shah (W/o
Prof. Saifuddin Soz) R/o
Khanpora Baramulla,
Kashmir A/P Shehjar,
Humhama Heights, Airport
Avenue, Srinagar Kashmir –
190021.
….PETITIONER
VERSUS
UNION OF INDIA & ANR. ….RESPONDENTS
AFFIDAVIT
I, Mrs. Mumtazunnisa Soz D/o Late Ghulam Nabi Shah (W/o
Prof. Saifuddin Soz), aged 75 years, R/o Khanpora Baramulla,
Kashmir A/P Shehjar, Humhama Heights, Airport Avenue,
Srinagar – 190021 do hereby solemnly affirm and state as under:
27
1. That I am the Petitioner herein and as such I am well
conversant with the facts and circumstances of the present
case and competent to swear the present affidavit in
support of the Writ Petition and accompanying List of
Dates.
2. That I say that I have no personal interest, personal gain,
private motive or oblique reason in filing the present Writ
Petition.
3. I say that I have read and understood the contents of the
accompanying Writ Petition, Para 1 to Para __ at page No.
___ to ___ and the list of dates at page ____ to ___ and I
say that the facts stated therein are true to my knowledge.
4. That the Annexure P- to P- at pages to filed
along with the Writ Petition are true copies of their
respective originals.
5. That I have read and understood the contents of the I.As.
and I say that the contents thereof are true and correct to
my knowledge.
6. That I say that the annexures along with the Writ Petition
are true copies of their respective originals.
DEPONENT
VERIFICATION:
28
I, the above named Deponent, do hereby verify and state that the
contents of the above affidavit are true to the best of my
knowledge and belief, no part of it is false and nothing material
has been concealed there from.
Verified by me at Delhi on this …. day of____________ 2020.
DEPONENT
29
IN THE SUPREME COURT OF INDIA
(CRIMINAL WRIT JURISDICTION)
[Order XXXVIII of Supreme Court Rules, 2013]
Crl. M.P. No. ____ of 2020
IN
WRIT PETITION (CRL.) NO. _____ OF 2020
(Writ Petition under Article 32 of the Constitution of India, in the
Nature of Habeas Corpus for the Production of Mr. Saifuddin
Soz)
IN THE MATTER OF:
Mrs. Mumtazunnisa Soz
D/o Late Gulam Nabi Shah
(W/o Prof. Saifuddin Soz)
R/o Khanpora Baramulla,
Kashmir A/P Shehjar,
Humhama Heights, Airport
Avenue, Srinagar Kashmir –
190021.
….PETITIONER
VERSUS
UNION OF INDIA & ANR. ….RESPONDENTS
AN APPLICATION FOR INTERIM RELIED WITH
SUPPORTING AFFIDAVIT
To,
THE HON’BLE CHIEF
JUSTICE OF INDIA AND HIS
30
COMPANION JUDGES OF
THE HON’BLE SUPREME
COURT OF INDIA.
THE HUMBLE APPLICATION
OF THE
PETITIONER/APPLICANT
ABOVE-NAMED:
MOST RESPECTFULLY SHEWETH:
1. The present Petition has been filed by the Petitioner, invoking
Article 32 of the Constitution of India, seeking, inter alia, a
writ in the nature of habeas corpus for production of detenu
Prof. Saifuddin Soz before this Hon’ble Court, and an
appropriate writ for quashing the order(s) of detention passed
by the Respondent No. 2, along with other directions.
2. The contents of the accompanying petition may kindly be read
as a part and parcel of the present application and the same
are not being repeated herein for the sake of brevity and to
avoid prolixity.
3. Briefly stated, the detenu has been unlawfully detained by the
Respondents, in complete and absolute violation of the law of
preventive detention. No grounds of detention were
communicated to him, and he was denied the right to make a
representation, both of which are constitutional safeguards
guaranteed to the detenu. Instead of furnishing a copy of the
detention order(s) to the detenu, the Respondents continue to
hold the detenu in detention for more than ten months.
31
4. The Petitioner therefore prays that the detenu be immediately
released from the unlawful detention pending the disposal of
the accompanying Petition.
5. The present Application is being made bona fide and in the
interest of justice.
PRAYER
In light of the facts and circumstances stated above, it is
humbly prayed that this Court may be pleased to:
a) Pass an order directing the Respondents to release the
detenu Mr. Saifuddin Soz pending the disposal of the
accompanying writ petition; and/or
b) Pass any other or further orders/directions as may be
deemed fit and proper in the interest of justice.
FOR THIS ACT OF KINDNESS, THE PETITIONER
ABOVENAMED AS IS DUTYBOUND SHALL EVER
PRAY.
DRAWN BY:
FILED BY:
DRAWN ON:
FILED ON: ADVOCATE FOR THE PETITIONER
32
IN THE SUPREME COURT OF INDIA
(CRIMINAL WRIT JURISDICTION)
[Order XXXVIII of Supreme Court Rules, 2013]
Crl. M.P. No. ____ of 2020
IN
WRIT PETITION (CRL.) NO. _____ OF 2020
(Writ Petition under Article 32 of the Constitution of India, in the
Nature of Habeas Corpus for the Production of Mr. Saifuddin
Soz)
IN THE MATTER OF:
Mrs. Mumtazunnisa Soz
D/o Late Gulam Nabi Shah
(W/o Prof. Saifuddin Soz)
R/o Khanpora Baramulla,
Kashmir A/P Shehjar,
Humhama Heights, Airport
Avenue, Srinagar Kashmir –
190021.
….PETITIONER
VERSUS
UNION OF INDIA & ANR. ….RESPONDENTS
AFFIDAVIT
I, Mrs. Mumtazunnisa Soz D/o Late Gulam Nabi Shah (W/o
Prof. Saifuddin Soz) aged 75 years, R/o Khanpora, Baramulla,
Kashmir A/P Shehjar, Humhama Heights, Airport Avenue,
Srinagar Kashmir – 190021 do hereby solemnly affirm and
state as under:
33
1. That I am the Petitioner in the aforementioned matter and
as such I am well conversant with the facts and circumstances
of the case and am competent to swear this affidavit.
2. I state that the accompanying Application(s) has/have been
drafted under my instructions, and I state that the same is/are
true and correct to the best of my knowledge and belief.
3. That the contents of the above affidavit are true and
correct and no part of it is false and nothing material has been
concealed therefrom.
4. That the Annexures filed along with the Applications are
true copies of their respective or originals.
DEPONENT
VERIFICATION:
I, the deponent above named do hereby verify that the
contents of para 1 to 4 of my affidavit are true to the best of
my knowledge and belief and no part of it is false and nothing
material has been concealed there from.
Verified at New Delhi on this day _________2020.
DEPONENT