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2002 DIGILAW 218 (JK)

Feroze Ahmad Malla v. State

2002-07-19

R.C.GANDHI

body2002
1. Petitioner by means of this Habeas Corpus Petition seeks to quash the Detention Order No. 32/DMP of 2001 dated: 06-09-2001, passed by the respondent No. 2. District Magistrate, Pulwama, in exercise of the power under Section 8 of the Public Safety Act 1978 (hereinafter called "the Act"). The respondent/ Government in exercise of the powers under Section 17 of the Act has confirmed the Detention for a period of Twenty Four Months. 2. Detention Order is sought to be quashed on the grounds that respondents have not supplied the relevant documents, in absence of which effective representation could not be made against the Detention Order to the Government and that neither the grounds of detention have been explained to the detenue in Urdu/Kashmiri language, which he understands nor the translated script thereof was provided to him. It is also one of the grounds that the detenue has also not been informed to make representation to the Government against the detention order. 3. The respondents have filed the Counter Affidavit, stating therein that the detenue was arrested on 11-08-2001 in FIR No. 77/2001, registered with Police Station Tral, for alleged commission of offence under Section 5 of the Explosive Substances Act. He has been informed vide letter No. 1176-78 dated: 06-09-2001 with regard to his detention and also of his right to make representation to the Government against the detention order. The detention order was executed on 11-09-2001. The grounds of detention were served upon the detenue on the same day and contents thereof read over and explained to him in the language which he understood and in lieu thereof, the detenue has executed the receipt affixing his thumb impression, which is available on record and can be perused. On these grounds, it is stated that the detention order does not suffer on account of any legal or procedural defect. 4. Heard learned counsel for the parties and perused the record made available by Mr. Ghulam Mustaffa. learned Government Advocate. 5. The learned counsel for the respondents with a view to make out that the detention order does not suffer on any account has submitted that the detention order in terms of Section 8 was approved by the Government vide order dated: 12-09-2001 within the statutory period. The record of the detention was referred to the Advisory Board for its opinion. The learned counsel for the respondents with a view to make out that the detention order does not suffer on any account has submitted that the detention order in terms of Section 8 was approved by the Government vide order dated: 12-09-2001 within the statutory period. The record of the detention was referred to the Advisory Board for its opinion. The Advisory Board in exercise of its power under Section 16 of the Act has reported that there is sufficient cause for continued detention of the detenue. The Government, in exercise of power under Section 17 of the Act has confirmed the detention for a period of Twenty Four Months vide order dated: 30-01-2002. Therefore, on these submissions, according to the learned counsel, detention order does not suffer on any account including any breach of the procedure required to be followed in terms of the provisions of the Act. 6. The learned counsel for the petitioner has submitted that the respondents have not made out before the court that the grounds of detention were read over and explained in the language i.e. Urdu/ Kashmiri, which the detenue understood, as stated in the counter affidavit. The respondents, to make out that the grounds of detention have been communicated to the detenue, have relied upon the record made available for perusal by the court. Perusal of the record maintained by the respondents reveals that the detenue has received grounds of detention and also executed a receipt thereof which reads as:- "Received the grounds of the detention issued by the District Magistrate, Pulwama vide his Order No. 32/DMP/2001 dated: 06-09-2001. through the Dy. Supdtt. Central Jail, Srinagar. consisting on one leaves. I have also been informed that I can make a representation to the Govt. against my detention order if I so desire. Sig. of the issuing Sig./thumb imp. of authority. the delenue Dy. Supdtt. Name: Feroz Ahmad Malla Centrat Jail. S/O Ab. Aziz Malla Srinagar. R/O Kunjbat Tral, Pulwama Dated: 11-09-2002 Dated: 11-09-2002 7. It is obvious from the above receipt that the grounds of detention have not been read over or explained to the detenue. These have been handed over to him and in token thereof receipt has been executed by the detenue. The grounds are required to be communicated in terms of Section 13 of the Act. which is extracted below and reads:- "13. These have been handed over to him and in token thereof receipt has been executed by the detenue. The grounds are required to be communicated in terms of Section 13 of the Act. which is extracted below and reads:- "13. Grounds of order of detention to be disclosed to persons affected by the order:- (1) when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention communicate to him grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose." 8. A bare perusal of the above provisions of law would reveal that the grounds of detention are required to be communicated to the detenue on which the order has been passed and the detenue is also required to be informed by providing him earliest opportunity of making representation against the detention order to the Government. The grounds have been received by the detenue but not explained to him. The grounds of detention are required to be communicated as mandated by law. Communication of grounds means to be conveyed by speaking to achieve the purpose to make the detenue to understand about the accusations and allegations contained in the grounds on the basis of which the detention order has been passed, so as to enable him to make a representation to the Government. Without communicating and explaining the grounds of detention, the detenue is not in a position to make a representation to the Government against the detention order which is based on the grounds of detention. Informing the detenue to make a representation, without explaining or communicating the grounds of detention to the detenue in the language which he understands, is a breach of Section 13 and amounts to denial of the guaranteed statutory right of making a representation to the Government 9. The grounds of detention are not only required to be read over or explained to the detenue as a formality. The grounds of detention are not only required to be read over or explained to the detenue as a formality. These are required to be explained to the detenue in the language which he understands so that he may make a representation to the Government against the detention order. The grounds of detention have not been communicated at all which is evident from the receipt executed by the detenue. There is no other evidence of communication of grounds of detention except the assertion made in the counter affidavit that the grounds of detention have been read over and explained to the detenue in the language which he understood. 10. Detenue in the petition has specifically stated that he knows only Urdu/ Kashmiri language. There is no record showing that the grounds of detention have been read over, explained or communicated in Urdu/ Kashmiri languages. Thus, the mandate of Section 13. therefore, has not been complied with. 11. The Supreme Court while dealing in a case under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) titled as Smt. Raziya Umar Bakshi Vs. Union of India, and others, reported in AIR 1980 SC page 1751, wherein the plea taken before the court was that the grounds of detention were couched in English language which the detenue did not understood at all and the grounds were not explained to him. The Supreme Court while dealing with this plea held as under:- "... If it was a fact that Mr. Sharma had personally explained the grounds to the detenue then the respondents should have filed an affidavit of Mr. Sharma himself to show that he had actually explained the contents of the grounds to the detenue by translating the same in the language which he understood. No such affidavit is forthcoming. No contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated the grounds to the detenue. The service of the ground of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenue unless the contents of the grounds are fully explained and translated to the detenue, it will tantamount to not serving the grounds of detention to the detenue and would thus vitiate the detention ex facie. 4. In case of Hadibandlu Das Vs. 4. In case of Hadibandlu Das Vs. District Magistrate, Cuttack. (1969) 1 SCR 227 (AIR 1969 SC 43), it was clearly held that merely oral explanation of an order without supplying him a translation in a script or language which the detenue understood amounted to a denial of right of being communicated the grounds. In the instant case, it is not even alleged in the affidavit of Mr. Shah that any translation or translated script of the grounds was furnished to the detenue. 5. In this view of the matter, the detention become invalid on this ground alone. It would however, like to observe that in cases 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..." Respondents could not make out from the record maintained that the provisions of Section 13 have been complied with. The Detention Order cannot be permitted to stand in breach of the mandate of provisions of the Act which are required to be followed without breach after the execution of the Detention Order. The respondents have failed to show that the grounds of detention have been communicated and explained to the detenue enabling him to make a representation to the Government against the Detention Order. Under such circumstances. Detention Order cannot be permitted to stand and deserves to be quashed. The Detention Order is, accordingly, quashed. Petition is allowed. The Respondents are directed to release the detenue Feroz Ahmad Malla S/O Abdul Aziz Malla R/O Kunjbat, Tral District Pulwama: forthwith from the said preventive detention, if he is not required in any other case.