Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. set aside the detention order passed by respondent 2-District Magistrate, Baramulla and ordered the detenu to be released from preventive custody.

In the present case, the petitioner had challenged a detention order passed by respondent 2 whereby the petitioner was taken under preventive custody. The respondent had also filed a counter affidavit wherein they resisted the petition by pleading that the detention order was passed by following the procedure under the law.

Learned counsel for the respondent, Asif Maqbool, produced the detention record to lend support to the stand taken in the counter affidavit.

Learned counsel for the petitioner, Mir Shafaqat Hussain, pointed out that the detenu had been shown involved in various FIRs but the fact that he had already been admitted to bail in these FIRs had not been mentioned though the mention of the FIRs was made. This showed that all the circumstances and materials were not examined. A person involved in a criminal case could be detained under the provisions of preventive laws provided there were compelling circumstances to do so. Preventive detention is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, should not be on the ipse dixit of the detaining authority.

While relying on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, it was pointed out that the procedural requirement are the only  safeguard available to the detenu, therefore, the procedural requirement should be strictly complied with, it was the duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If the record suggested that there was non-application of mind, which ipso facto meant that subjective satisfaction was missing.

Due to the cumulative effect of the above discussion, it was held that, the impugned order of detention passed by respondent 2 was not valid. The order was set aside directing that the detenu be released from the preventive custody.[Shahid Ahmad Tantray v. State of J&K, 2019 SCC OnLine J&K 422, decided on 08-05-2019]

Case BriefsHigh Courts

Gujarat High Court: A.Y. Kogje, J. passed an order of release of a vehicle involved in transporting mineral / illegal mining after imposing certain conditions. 

A petition was filed under Articles 14, 19, 21 and 226 of the Constitution of India to release the vehicle which was seized under the provisions of Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2017 for it being involved in transporting mineral / illegal mining.

Kruti M. Shah, learned counsel for the petitioner submitted that he was ready to pay the penalty amount that may be specified by the authority after completion of entire proceedings at the departmental level or upon the completion of the trial if any.

Vrunda Shah, learned counsel for the respondent submitted that the vehicle was found involved in the illegal mining activity and therefore, the department has acted as per the provisions of Rules of 2017 and as the petitioner was not ready and willing to compound the offence, the vehicle could not have been released.

High court on noting the submission by the parties held that authorized officer was obliged to release the vehicle the moment the person alleged whose vehicle is involved in illegal mining activity furnishes the bank guarantee or the security deposit. The Court thus ordered the authorized officer to release the vehicle after complying with the certain mandatory conditions.[Mohammadkhan Karimkhan Ghori v. State of Gujarat, 2019 SCC OnLine Guj 838, decided on 09-05-2019]

Case BriefsInternational Courts

African Court on Human and Peoples’ Rights: The application had been filed under Rule 19 of the Court Rules from Provision 17 of the Court Practice Directions before the Court comprising of the following? Sylvain, President; Ben Kioko, Vice-President; Rafaa, Angelo, Suzanne, M-Therese, Tujilane, Chafika, Blaise, Stella, Anukam, JJ. and Robert ENO, Registrar.

Facts of the case were that the applicant had been convicted for raping a 15 year old girl, offence punishable under Sections 130(1) and (2)(e) and 131(1) of the Tanzanian Penal Code, as Revised in 2002 and was sentenced to thirty years imprisonment after which applicant filed a criminal appeal at High Court of Tanzania and subsequently criminal appeal before Court of Appeal of Tanzania. In both the appeals his sentencing was upheld after which applicant filed an application for review before Court of Appeal which was still pending. Applicant prayed that the guilty verdict and sentence should be annulled and he should be released.

The Court’s jurisdiction was challenged by respondent State stating that applicant wanted the Court to behave like an appellate body by praying to re-examine the matters of fact and get it examined by its judicial bodies. Whereas the Court was not under the power to do so. Applicant contended that if any provisions of this charter were violated then the Court has the power to review the matter. Court was of the view that though it is not an Appellate Court, can still examine if the procedure by national court were in conformity with the African Charter on Human and Peoples’ Rights. Therefore, Court stated itself to have material jurisdiction.

Respondent further objected to the admissibility of the application on two grounds that applicant had not exhausted all his local remedies and that he delayed the filing of application beyond a reasonable time. The Court observed that applicant has exhausted the local remedies as envisaged under Article 56(5) of the Charter and Rule 40(5) of the Rules of Court. On the second ground Court again favoured applicant stating him to be indigent, incarcerated person without any legal assistance which justifies his delay in filing the application.

Applicant in his application had alleged that his right to be heard was abridged by the Court of Appeal as they examined only a few arguments of the applicant while leaving the other argument unattended. However, the Court found no violation of applicant’s right to be heard.

Therefore, in light of the fact that applicant’s rights were not infringed his prayer to annul his conviction and sentence along with his prayer to be released from prison was dismissed. [Minani Evarist v. United Republic of Tanzania,2018 SCC OnLine ACTHPR 1, dated 21-09-2018]