New Delhi: The Allahabad High Court today dropped charges filed against Dr Kafeel Khan under National Security Act and ordered his immediate release. Dr Kafeel Khan has been incarcerated in Mathura jail for the last six months.
The Division Bench comprising the Chief Justice Govind Mathur and Justice Saumitra Dayal Singh held that prima facie, the speech is not such that a reasonable man could have arrive at a conclusion as the inference drawn by the District Magistrate, Aligarh, who passed the detention order against Dr. Khan in February this year.
Counsel for Petitioner has submitted that the Khan was earlier granted bail by a Court and he was supposed to be released. However, the NSA was imposed against him.
Hence, his detention was illegal. Under the NSA, people can be detained without a charge for up to 12 months if authorities are satisfied that they are a threat to the national security or law and order.
He further submitted that Dr. Khan was arrested from Mumbai in January this year, for allegedly giving a provocative speech at the Aligarh Muslim University on December 13, 2019, amidst the anti-CAA protests.Khan had been granted bail by the Court of CJM, Aligarh on February 10. However, he has been languishing in jail under the NSA Act, which was slapped on him by the Aligarh District Magistrate on February 15.
The Court observed that State failed to discharge its burden to establish that Kafeel Khan’s December speech had
“such a deleterious effect on the public order in district-Aligarh as had continued to exist up to 13.02.2020 necessitating preventive detention of the detenue”.
The Court further observed that when the alleged provocative speech was delivered in December 2019, the District Administration, Aligarh did not find the speech of Dr. Kafeel Khan sufficient for preventive detention.
However, only when the CJM allowed his Bail Application on February 10, the District Magistrate, Aligarh initiated the process for detaining Dr. Kafeel Khan under the National Security Act, 1980.
Court held that no recommendation, even at the time of Dr. Khan’s bail hearing was made for invoking powers under sub-Section (2) of Section 3 of the National Security Act, 1980.
Hence, the Court held that the “causal link” between the Act and the detention order is missing/ completely broken.
Moreover, the State authorities have failed to discharge their “bounden burden” to establish that the lecture delivered by Dr. Khan in December 2019 had such a deleterious effect on the public order in district-Aligarh as had continued to exist up to 13.02.2020, necessitating preventive detention of the detenue, on that later date.
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The Court observed,
“Preventive detention is an exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances. Under Article 21 of the Constitution of India along with the right to life, the right to personal liberty is a precious fundamental right. This precious fundamental right must always be protected.”
The Bench clarified that the delay in passing of detention orders or in recording subjective satisfaction to preventively detain a person may not be a subject matter of a hard and fast rule. Nevertheless, it observed, the record must itself indicate that there existed a “continuing casual link” between the satisfaction claimed to have been recorded and the offending act.
Read the order here;
HABCA-264-2020-1-India Legal Bureau