RULING THAT his address to students at the Aligarh Muslim University (AMU) during the anti-CAA protests last December was “a call for national integrity and unity”, and not “any effort to promote hatred or violence”, the Allahabad High Court Tuesday set aside the detention of Dr Kafeel Khan under the National Security Act (NSA) and ordered the UP government to release him “forthwith”.
Khan, a pediatrician at Gorakhpur’s BRD Medical College and Hospital who had been placed under suspension, was arrested on January 29 for allegedly making the “provocative speech” and lodged at Mathura district jail. Charged under the NSA on February 13, his detention was extended twice.
Allowing a Habeas Corpus petition by Khan’s mother Nuzhat Perween, a division bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh ruled: “The order of detention dated 13th February, 2020, passed by District Magistrate, Aligarh, and confirmed by the State of Uttar Pradesh is set aside. The extension of the period of detention of detenue Dr. Kafeel Khan is also declared illegal.”
The Bench ordered the state government “to release Dr. Kafeel Khan, the detenue, from State custody, forthwith”.
Khan was released late Tuesday with his brother Adeel Khan saying “justice has finally been delivered”.
In its order, the court described the detention order under the NSA as “bad”, and based on “selective reading and selective mention of few phrases from the speech ignoring its true intent”. The court also pointed to the two-month gap between the speech and the NSA charge, and that the order to extend the detention was not given to Khan.
Referring to the speech, it said: “No doubt, some parts of the phrases used in the grounds for detention are there in speech, but apparently in different context. 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 peace and tranquility of the city of Aligarh.”
Referring to an “important aspect”, the court’s order stated: “Nothing has been said in the order of detention or the grounds for detention that district administration had any information within the period from 12th December, 2019, to 13th February, 2020, about any effort made by the detenue to cause even a simple scar to the peace or tranquility or the public order of the city of Aligarh. It is only after passing of the bail order by the Chief Judicial Magistrate, Aligarh, the police officials and the District Magistrate, Aligarh, initiated the process for detaining Dr Kafeel Khan under the National Security Act, 1980.”
The speech in question was delivered by Khan when he and Yogendra Yadav addressed a gathering of AMU students who were protesting against the CAA and proposed NRC. After the registration of a case against him under various IPC sections, Khan was arrested following which he applied for bail. The plea was allowed by the Chief Judicial Magistrate in Aligarh on February 10 but before the formalities for release could be completed, Khan was charged under the NSA.
Khan’s detention was subsequently extended twice. On this, the court stated: “One more important aspect of the matter is that the orders of extension were never served upon the detenue. The record shown to us and the pleadings of the petition also refer that only radiograms relating to decision of the State Government for extension of the term of detention were supplied to the detenue. The radiograms mentions that the actual order shall be sent through speed post but in fact nothing except the radiograms were given to the detenue.”
It said: “In light of the discussion above, we are having no hesitation in concluding that neither the detention of Dr Kafeel Khan under National Security Act, 1980, nor extension of the detention are sustainable in the eye of law… we have arrived at a conclusion that the order of detention is bad…”
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