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2001 DIGILAW 176 (JK)

Rustum Wani v. State Of J. &K.

2001-08-20

B.L.BHAT, H.K.SEMA

body2001
PER H.K. SEMA, ACTING CHIEFJUSTICE: 1. We have heard Mr. M.A. Wani, learned counsel for the appellant as well as Mr. G. Mustafa, GA, learned counsel for the respondents. 2. This appeal has been preferred by the appellant against the order dated: 15-02-2001 passed by the learned Single Judge in HC No. 232/2000 (sic) dismissing the petition. 3. The appellant has been detained under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter Act) by an order dated: 03-08-2000 passed by District Magistrate Pulvama. The detention order was followed by grounds of detention supplied to the dctenue on 07-08-2000. It may not be necessary to quote the whole grounds of detention, however, it will be useful to quote the operative portion of grounds of detention which read as under:- "With the help, assistance, connivance of militants, you turned to be notorious timber smuggler, docoit, rapist of the Keller area. You are hardened criminal and had not any care and respect for the law of the land and blatantly violated it with impunity. You can go to any extent to terrorize, humiliate and tease the respectable citizens. You by virtue of his misdeeds activities had turned lobe nuisance for maintaining ofthe public order. Finally you were arrested on 23-07-2000 by P/S Rajpora from your house and recovered one hand grenade from your possession. In this connection a case FIR No. 94/2 K U/s 7/25 I.A.A. stands registered in P/S Rajpora and investigation taken up. You are presently under arrest and there is ever)1 likelihood of your getting bailed out and indulging in subversive activities. Therefore, your activities being highly prejudicial to the security of the Slate, you Shri Rustum Wani alias Rustum Galwan S/0 Samad Wani R/O Village Daramuran Wanpora Tchsil Shopian District Pulwama are detained under the provisions of J&K Public Safety Act, 1978 and have a right of representation to Govt. against detention order." 4. The aforesaid detention order alongwith the grounds of detention has been challenged mainly on these grounds:- (a) that the detenue was already arrested in connection with FIR No. 95/2000 mid he was under custody and no bail application has been preferred at the relevant time and therefore, there was no question of the detenue being released on bail. Therefore, the order of detention has been passed without application of mind. Therefore, the order of detention has been passed without application of mind. (b) that the FIR referred to in the grounds of detention copy of which has not been supplied to the detenue and the detention order is accordingly vitiated. (c) that the detenue was not supplied with a copy of grounds of detention in the language he understood. The detenue is it- literate person and did not understand the english language. 5. Admittedly, copy of the FIR mentioned in the grounds of detention has not been supplied to the detenuc. The learned Single Judge has held on this ground by referring to the judgment of Apex Court rendered in Ahmad Nassar Vs. State of Tamil Nadu reported in 1999 (8) SCO 473. The Apex Court in Ahmad Nassar (supra) had occasion to deal with the similar matter with the facts of the case at hand and came to a finding as undcr:- "... Merely because no bail application was then pending is not premise to hold that there was no likelihood of his being released on bail. The words likely lo be released cannote chances of being bailed out. in case, there be pending bail application or in case if it is moved in future is decided. The word "likely shows il can be cither way." 6. In view of the order of Apex Court as referred to above that non filing of the bail application would not deter the appropriate authority to pass an order of detention if there is likelihood of being released which would include future also. The next ground of challenge was that non supply of the FIR which has been relied upon in the grounds of detention served upon the detenue on 07-08-2000. 7. Admittedly, the copy of FIR relied upon by the authority has not been supplied to the detenue. Whether non supply of the material referred to and relied upon by the detaining authority vitiates the detention order or not has been considered by the Apex Court in case of Kamaruunissa Vs. Union of India reported in AIR 1991 SC 1640 in this case the Apex Court had held as undcr:- ".... It is not sufficient to say that the detenue was not supplied the copies of the documents in time on demand but it must be shown that the non-supply has impaired the detenues right to make effective and purposeful representation. Union of India reported in AIR 1991 SC 1640 in this case the Apex Court had held as undcr:- ".... It is not sufficient to say that the detenue was not supplied the copies of the documents in time on demand but it must be shown that the non-supply has impaired the detenues right to make effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned delenuc. merely on the ground that there is a reference thereto, in the grounds of detention cannot vitiate an otherwise legal detention order. No hard and fast rule be laid down in this behalf but what is essential is that the detenue must show-that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however, slight or insignificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioner point out any such prejudice. " 8. The learned Single Judge after referring to the Apex Courts judgment as aforesaid has rejected this contention. We are in respectful agreement with the finding of the learned Single Judge. 9. The last and probable the least ground of challenge of the detention order is the non-supply of grounds of detention in the language understood by the detenue. 1O. Mr. M.A. Wani, learned counsel for the appellant submits that because of non-supply of grounds of detention in the language which the detenue could understand, he has been deprived of making an effective representation and therefore, the procedural safeguard enshrined in Article 22 (5) of the Constitution has been violated. 11. Before we adhere to the argument advanced by the learned counsel for the appellant on this ground, we may at this stage point out that it is an admitted fact that the detenue is an illiterate person. He does not know how to read and write. Before learned Single Judge, counter has been filed and it is explained in the counter that since the detenue is an illeterate person, he has been explained in detail all the grounds of detention in the language he understood i.e. Kashmiri language by an Officer who is well versed with the Kashmiri language. 12. Before learned Single Judge, counter has been filed and it is explained in the counter that since the detenue is an illeterate person, he has been explained in detail all the grounds of detention in the language he understood i.e. Kashmiri language by an Officer who is well versed with the Kashmiri language. 12. Considering the importance of the grounds of detention, we have called for the record and we perused the same. From the records, it appears that the detenue has been explained the grounds of detention in Kashmiri language by the Superintendent of District Jail. Kathua who is Kashmiri gentleman and well versed with the Kashmiri language and the detenue has put his thumb impression on the receipt of grounds of detention which have explained to him stating therein that the grounds of detention were read overand explained to him in Urdu/Kashmiri which he understands fully. The detenue also certifies that he has been informed to make representation to the Government against the detention, if he so desired. 13. Now the question arises that whether non supply of copy of grounds of detention in the language which is understood by him would make any difference because the detenue is an illeterate person. In our view, since admittedly, the detenue is an illeterate person, instead of supplying copy of the grounds of detention if it is explained properly and fully in the language understood by him, would be the sufficient compliance of the mandate of Article 22 (5) of the Constitution. No other ground has been urged before us. In the result, this appeal is devoid of merit and dismissed accordingly. Record is returned back.