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2000 DIGILAW 104 (JK)

Ab. Rashid Malla v. State

2000-05-16

SYED BASHIR-UD-DIN

body2000
1. Petitioner has been arrested on 22-10-1997 in FIR No 115/97 under Section 7/25 Indian Arms Act, registered at Police Station Lalpora. Subsequently, he has been detained under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State, by District Magistrate, Kupwara under his Order DMK/PSA/260 of 1998 dated 23-07-1998 for a period of twenty four months. The detenue Abdul Rashid Malla, was taken in preventive detention on 01-08-1998. This order of detention is under challenge in this Habeas Corpus petition. 2. The counsel for petitioner admits that the detenue is an illiterate person. Grounds supplied to him in English language are not understood by him. The order of detention and ground were not accompanied by any translation or transcript in the language which he understood. He was not even supplied material and documents referred in grounds of detention. Petitioner has been prejudiced in so far as he could not make any representation. The counsel further submits that the detention order suffers from non application of mind. It has been passed in a mechanical manner by the detaining authorities. It is based on vague grounds. Though the detenue was with the State authorities from 22-10-1997 in punitive detention, the order of preventive detention was ordered after about 9 months, when petitioner was not free to indulge in alleged prejudicial activities, the basis of detention order. 3. Mr. R.A. Khan, GA has submitted that the detention is in order. The detenue has been supplied the grounds as also the detention order in order to make representation. He further submits that the order is based on subjective satisfaction of the detaining authority. In para 2 of the counter, it is stated:- ...So consequently, after contents of detention warrant were explained and read over to the detenue in the language which he understood, the detention warrant was executed and the detenue was taken into preventive custody only on 01-08-1998, which fact is evidenced by the executed copy of detention warrant, whereupon the detenue has put his thumb impression. The grounds of detention were also handed over to the detenue. Contents thereof were also read over fully understood.� In para 4 of the counter, it is further averred:- .. The material in the shape of grounds of detention stand supplied to the detenue. The grounds of detention were also handed over to the detenue. Contents thereof were also read over fully understood.� In para 4 of the counter, it is further averred:- .. The material in the shape of grounds of detention stand supplied to the detenue. No other material or record has been relied for detention of the detenue. No doubt FIR has a passing reference in the grounds of detention, but same has also not been relied.� 4. This statement when examined in the light of allegations in the petition and grounds of detention, it is more than made out that the petitioner has not been supplied any material except the sheet stated to be grounds of detention. (Annexure PI), FIR; copies of memos; seizure of arms and ammunition memos etc., have not been supplied to petitioner. Even record produced by Mr. Khan, GA, shows that the order of detention with grounds is served in English language not accompanied by transcript or translation thereof. It is also seen from this record that the detenue has put thumb impression on the endorsement thereby fairly showing that the detenue is illiterate person, which fact is not even denied by the respondents. The person or the authority who has actually read over the order to petitioner in English or some other language which he alleges is understood by petitioner has not come forth to file an affidavit. Even, the particulars, like name, designation of such officer is not discernible from record. In such circumstances, detenue cannot be said to have been supplied the grounds in the language which he understood nor it can be said that the grounds were accompanied by transcription or translation in a language which the detenue understood. Now coming face to face with such situation, it is apt to quote observations from Sophia Ghulam Mohd Bham Vs. State of Maharashtra and others, (AIR 1999 SC: 3051) of the Apex Court, as under:- .... Now coming face to face with such situation, it is apt to quote observations from Sophia Ghulam Mohd Bham Vs. State of Maharashtra and others, (AIR 1999 SC: 3051) of the Apex Court, as under:- .... The right to be communicated the grounds of detention flow from Article 22(5} while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language..� In Ghulam Mohd Mir Vs. State of Jammu and Kashmir and Another (HC. Pet. No. 93/99) decided on 30-12-1999, it is recorded: - ... In the circumstances, the detenue cannot be said to have been provided an opportunity and the means to make meaningful and effective representation against the detention as guaranteed apart from provisions of Public safety Act, by Article 22 of the Constitution. So long the material on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority, is withheld from or denied to the detenue, the detenue cannot be said to be communicated the grounds with material. If so, detenue is denied opportunity to make representation.� In Smt. Raziya Umar Bakshi Vs. Union of India and others case, AIR 1980 SC: 1751 (Sup), it is pointed out:- ... Where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue, it must see to it that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language which he understands. A bare denial at the stage when Habeas Corpus petition is filed in the court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation�. 5. A bare denial at the stage when Habeas Corpus petition is filed in the court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation�. 5. The detenue in such circumstances is not communicated the basic facts and material, the foundation of detention order and source to draw conclusion and basis to arrive at subjective satisfaction of the detaining authority. Obviously, once the grounds with material is not communicated, the detenue cannot be said to have been given an opportunity to make meaningful and effective representation to the Government. 6. Examination of the grounds would fairly reveal that the petitioner is stated to have crossed over LOC in 1993 and taught the use of fire arms and imparted learning to deal in weaponry to other militants. After crossing over back to this side of the LOC in 1997 he is stated to have engaged in some terrorist activities without specifying the acts with date, place, name and other required particulars. This statement does not even carry any example. He was caught on 22-10-97 and arms and ammunition were recovered at his instance. Regarding this crime, FIR 115/97 under Section 7/25/AA was registered at Police Station Lalpora. Obviously, when out of the grounds, FIR and material and details connected therein are excluded, then there remains only the portion which speaks of detenue™s indulgence in activities prejudicial to the security of the State, a too generalised and omnibus statement lacking reference to any particular incident(s) or example(s). The statement is not exemplified to show specific involvement of the detenue. Obviously, the grounds are vague, coupled with this aspect of the case, it cannot be lost sight of that the detenue was detained in the regular offence and was arrested on 22-10-97. After about 9 months he was detained when during this period he was although in custody. There is not even a mention either in reply or the grounds to show that the detenue is being either let off on bail or if released on bail would indulge in activities prejudicial to the security of the State. The live and proximate link between the grounds and purpose of detention appears missing. There is not even a mention either in reply or the grounds to show that the detenue is being either let off on bail or if released on bail would indulge in activities prejudicial to the security of the State. The live and proximate link between the grounds and purpose of detention appears missing. It appears to be a mechanical, casual and routine order, without application of mind. The subjective satisfaction is not drawn in legal sense by the detaining authority. It speaks of non-application of mind on the part of detaining authority. In result, for the aforesaid reason, the detention order is judged as invalid, therefore, quashed. Respondents/authority or officer having custody of the detenue, shall release him from custody and set him free forthwith, provided not required in any other substantive offence or case including FIR 115/97 u/s 7/25 IAA registered at Police Station Lalpora. Communicate the order to the concerned and give copy free of cost to the petitioner.