Dr. Khan was not given an “effective opportunity” to make a representation against the charges leveled upon him, the court concluded while setting aside the NSA orders.
After spending several months in custody under the stringent provisions of the National Security Act, in a huge relief to Dr. Kafeel Khan, the Allahabad High Court has directed the Government to immediately release him.
The charges against Dr. Khan were unwarranted as there was no occasion in his allegedly provocative speech that instigated hatred against any community or promoted violence, the top court observed.
The order was pronounced in a habeas corpus petition filed by Khan’s mother, who said that her son was detained illegally.
Chief Justice Govind Mathur and Justice Saumitra Dayal Singh, presiding over the Division Bench, have revoked the NSA charges against Dr. Khan, who is presently lodged in the Mathura jail. An order by District Magistrate, Aligarh under the NSA Act and confirmed by the State of Uttar Pradesh, dated 13th February 2020, has been set aside by the court. The extension of Dr. Khan’s detention has also been declared illegal.
Dr. Khan was not given an “effective opportunity” to make a representation against the charges leveled upon him, the court concluded while setting aside the NSA orders. Though Khan was supplied the grounds for detention in the form of a CD, he was not given any device to access the same, hence virtually amounting to non-supply of relevant material in terms of Article 22(5) of the Constitution, the court observed.
Dr. Kafeel Khan’s speech at the Aligarh Muslim University on December 13, 2019, the led to his arrest and detention under the stringent law, “does not disclose any effort to promote hatred or violence,” the court said.
The bench 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.
“The speaker was certainly opposing the policies of the government and while doing so certain illustrations are given by him, but that nowhere reflects the eventualities demanding detention. A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also nowhere threatens the peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent,” the bench noted.
The top court also observed that the detention order was passed against dr Kafeel Khan after he was granted bail on Feb 13, 2020. He was detained in relation to the speech he made in December 2019 in an ant-CAA protest.
“By very nature, the order of preventive detention could have been issued to prevent an occurrence but not punitively or merely by way of a consequence of the occurrences that were two months old,” the HC pulled the administration over NSA invoked on Khan 2 months after his speech.
The state failed to discharge its burden to establish that KafeelKhan’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 observed.
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