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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.

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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

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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

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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.

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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.

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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

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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

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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

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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.

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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.

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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

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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.

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THE HUMBLE PETITION OF

THE PETITIONER ABOVE-

NAMED:

MOST RESPECTFULLY SHEWETH:


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

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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

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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.

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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

26






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,



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




Crl. M.P. No. ____ of 2020

IN




Soz)

IN THE MATTER OF:

Mrs. Mumtazunnisa Soz

D/o Late Gulam Nabi Shah

(W/o Prof. Saifuddin Soz)

R/o Khanpora Baramulla,




190021.

….PETITIONER

VERSUS


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:


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




Crl. M.P. No. ____ of 2020

IN




Soz)

IN THE MATTER OF:

Mrs. Mumtazunnisa Soz

D/o Late Gulam Nabi Shah

(W/o Prof. Saifuddin Soz)

R/o Khanpora Baramulla,




190021.

….PETITIONER

VERSUS


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

images.assettype.com€¦ · web viewthe detenu was informed of his house arrest by the security...

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