He had already completed a three-year jail term in June 2011
The Supreme Court on Wednesday indicted the Jammu and Kashmir government for keeping a Pakistani prisoner in illegal detention for 13 months, after he had completed his sentence for an offence under the Foreigners Act and Unlawful Activities (Prevention) Act, and ordered his immediate release.
Sikander Azam was arrested in July 2008, and in June 2010 he was convicted and sentenced to three years’ imprisonment and he completed it in June 2011. The State government, however, did not release him on the ground that he did not make an application before the trial court for setting off his period of detention as an undertrial and that he would be released only in June 2013 when the period of sentence would end.
A Bench of Justices R.M. Lodha and Anil R. Dave directed the State to bring him to the capital and keep him in Seva Sadan, a detention centre till his repatriation was done by the Centre, within two months.
The Bench took serious view of the “wrong and misleading affidavit” filed by State Additional Secretary Dilshad, and directed her to show cause why contempt of court proceedings should not be initiated against her.
“It really shocks us”
Justice Lodha told counsel Sunil Fernandes appearing for the State: “The person who files an affidavit must do so with a sense of responsibility. It really shocks us…Don’t play with the court. Certain things are indefensible. You are throwing Articles 21 (life and personal liberty), 22 (protection against arrest and detention) and 39A (equal justice and free legal aid) to the winds.
“The state is the guardian of all citizens, whether he is your citizen or not. If you do not understand life and liberty, may God help the state. Tell us under which method, understanding, calculator, computer did you calculate that his sentence period would be over by June 29, 2013.
“What about his detention period? Under which law is his detention to be thrown into the dustbin? Liberty is a precious gift given by God to mankind. It can only be deprived under due process.
“Citizen or non-citizen, the state is the guardian of every person within its territory. Whether he has legal counsel or not, it was the duty of the state to ensure that he did not stay even a day more in jail than required. If this is the attitude of the state, God help us, God help the state,” he said and added that the State’s stand was “shocking.”
During the hearing, the Bench was informed that in all, there were 269 Pakistani prisoners, of whom six had been repatriated and one was in the process of being sent back. A total of 146 of them were under-trial prisoners, while 75 were serving their sentence. The nationalities of 29 of them were being ascertained. The 269 prisoners did not include any fishermen.
Additional Solicitor-General P.P. Malhotra, appearing for the Centre, said that in respect of three of those who had completed their jail terms, the Central government had sought no-objection certificate (NOC) from the J&K government for their repatriation.
“Why do you need NOC from the state? The bureaucratic procedure must be avoided,” Justice Lodha told the ASG. However, the ASG said being terrorists they might be involved in other cases and as such the NOC was necessary.
The Bench was hearing two PIL petitions filed by J&K Panthers Party president Bhim Singh seeking the immediate release and repatriation of all Pakistani and Indian nationals who had served their sentence.