The Jammu and Kashmir High Court has asked the state government to file its reply in a habeas corpus petition filed on behalf of an alleged minor, detained under the Public Safety Act. Considerably, Section 8 of PSA bars detention of persons below the age of 18 years.
Interestingly, the Supreme Court had recently sought a report from the J&K Juvenile Justice Committee on alleged illegal detention and ill treatment of children in Kashmir.
Advocate Wajid Haseeb, representing the petitioner-detenu, Abrar Ahmad Ganie submitted before the court that the Petitioner was a minor, aged 16 years, and his detention was contrary to Section 8 of PSA. In this behalf he placed on record the marks card which indicated Abar's date of birth as 15.03.2003.
Taking note of this argument, Justice Sanjeev Kumar directed the State to file its counter affidavit in light of the above controversy.
"Notice accepted by Mr. Shah, learned Sr. AAG. He shall file counter affidavit by next date of hearing.
The issue raised by the petitioner in this petition whether the petitioner-detenu is a minor and, therefore, is required to be treated as Juvenile shall also be addressed in the counter /reply affidavit", he said.
He also directed the District Magistrate concerned to look into the matter specifically and revert to the court on October 1.
In a separate yet similar plea filed before Justice Ali Mohammad Magrey on behalf of detenu Umer Bashir Naikoo, the brother-in-law of the detenu sought that the detenu be shifted to the Juvenile Observation Home. He raised a plea of juvenility under Section 8 of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 (J&K JJ Act), and submitted that detenu was aged merely 14 years, as per her school records.
The State contested this position, claiming that there were many mutilations in the recorded Date of Birth of many candidates from the Admission Registrar of the School. AAG B. A. Dar, for the State, remarked that at the time of admission, no certificate of birth was produced by the parents of applicant-detenu nor the school administration bothered to procure/demand the same from the concerned offices.
Faced with this dispute of facts, Justice Magrey said that an enquiry was required to be made in terms of Section 8 of J&K JJ Act, to determine the age of the detenu as on the date of the detention. He observed,
"The certificate produced in this application in proof of the date of birth of the applicant-detenu is neither the original document nor attested by any person, much less an authorized person, therefore, cannot be taken as conclusively establishing the date of birth of the applicant-detenu."
Reliance was placed on Abuzar Hussain v. State of W. B., (2012) 10 SCC 489.
In this view, Justice Margey directed the Registrar (Judicial) to determine the age of Naikoo on the alleged date of detention and submit his report within 10 days. Accordingly, the matter was posted for October 14.
Click Here To Download Orders