Shah Faesal not in unauthorized custody, was lawfully detained after court order: J&K Govt tells Delhi HC

The Jammu & Kashmir Government has informed the Delhi High Court that bureaucrat-turned-politician from the region, Shah Faesal is not under “unauthorized custody” as he was lawfully detained after his arrival in Srinagar pursuant to an order passed by an Executive Magistrate under Sections 107 read with Section 151 of the Code of Criminal Procedure on August 14.

The averment was made by the J&K Government in response to Shah Faesal’s habeas corpus petition seeking his immediate release.

Since Shah Faesal was detained after a valid court order, which has not been challenged by anyone,  a writ of habeas corpus was not maintainable, the J&K Government has pleaded.

The J&K Government has informed the Court that in order to prevent Shah Feasal from leaving the country in view of the abrogation of Article 370 of the Constitution of India, a Look Out Circular (LOC) was issued against him by the Intelligence Bureau (IB) on August 12 at the request of J&K Police (CID Wing).

Pursuant to this LOC, Shah Faesal was “offloaded” by the Immigration Authorities at the Delhi Airport.

Further narrating the events that led to his detention, the J&K Government has submitted that thereafter, the J&K Police requested the Delhi Police to ensure the safe journey of Shah Faseal from Delhi to Srinagar.

However, on his arrival to Srinagar, Shah Faesal began addressing a “gathering of people” at the Srinagar Airport, instigating “against the sovereignty and integrity of India” which had a potential of a breach of peace, it is alleged.

“The Police personnel and the airport authorities, considering that the Petitioner is the President of a political party called the Jammu and Kashmir People’s Movement, realized that the Petitioner’s actions have the potential to cause a breach of peace which can resultantly disrupt the peace and tranquility of the region. It was further observed that the persons in and around the airport at the said time were being influenced and provoked/instigated by the Petitioner to commit the above said prejudicial activities.”

Therefore, the In-charge Police Post, Humhama instructed Shah Faesal to desist from indulging in such activities.

After Shah Faesal continued to create “an unruly atmosphere” at the Airport, he was “apprehended on the spot” on the verbal orders passed by the Budgam Executive Magistrate 1^st Class under Sections 107 read with Section 151 of the Code of Criminal Procedure, the J&K Government has asserted.

The Magistrate then proceeded to take requisite action under the Sections and explained to Shah Faesal that he was required to furnish a bond/security of Rs 50,000 for “keeping the peace”.

Shah Faesal, however, refused to furnish the security/bond, following which an order to detain Shah Faesal till the next date of the hearing ie. August 24 was passed by the Magistrate.

Further justifying his detention, the J&K Government has called Shah Faesal’s claim of going to Harvard University to attend an academic course at Harvard University a “false façade”.

“It is not conceivable, in absence of any cogent material, to accept the theory that a leader of a political outfit which is very vocal about the constitutional actions taken by the Constitutional bodies of our country on 5^th August 2019, would leave the country at this juncture to pursue some academic course at Harvard University, that too without a student visa.”

The J&K Government has emphasised the fact that apart from showing his tickets from Delhi to Turkey to Frankfurt to Boston, Shah Faesal had “failed to show” any other proof to substantiate his claim.

It is further claimed that since Shah Faesal had a tourist visa to visit the United States, he was not even entilted to study there.

As a matter of preliminary objection, the J&K Government has also disputed the territorial jurisdiction of the Delhi High Court to entertain the habeas corpus petition.

Claiming that Shah Faesal was detained in Srinagar pursuant to an order which was passed in Srinagar and he is currently also in Srinagar, the J&K Government has argued that the incident fell within the territorial jurisdiction of the Jammu & Kashmir High Court.

The matter would be heard by the Delhi High Court on September 3.