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2002 DIGILAW 293 (JK)

Nissar Ahmed Khanday v. State

2002-09-09

SYED BASHIR-UD-DIN

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1. Detenue was arrested on 23.07.2000 and was put under preventive detention under Order No. F158/DMA/PSA/DET/2000/2425-31 dated 28.08.2000 of District Magistrate Anantnag, with a view to prevent him to act in a manner prejudicial to the security of the State. This order of detention is challenged on number of grounds. 2. The petitioner™s counsel has confined his submission to the following two grounds;- First, that the petitioner has not been supplied grounds of detention. He has not been explained the detention order. The petitioner is illiterate and not able to understand the english language. He has not been provided any translated version of the grounds. Detenue is thereby adversely affected. Second that he has not been informed of his right to make representation. In absence of communication of the detention order and with-holding of the information that he can make the representation, he is prejudicially affected to vitiate the detention. (3). In reply Mr. R. Gadda, GA has contested the above submissions. He submits that the detenue has been informed of his right to make representation. Detenue has been given the order of the grounds of detention. Same has been read over and explained to him in Urdu/Kashmiri language which he understood. A receipt by way of acknowledgement has been obtained from him for all. All this was done when detenue was taken in preventive custody on 01.09.2000 and lodged in District Jail Kathua. 4. Endorsement of order of detention annexure ˜A™ shows that the detention order was sent to S.S.P Anantnag who was to execute the order and to give notice of the order to the detenue by reading over and explaining the same to him in the language which he understood. Mr. Gadda, GA concedes that the Dy. Commissioner has not executed the order of detention. He has not given the order and ground to the detenue. He has not even read and explained contents to the detenue. It is only the police Official through SSP Anantnag who have done all this. Now in such circumstances when even detention record is not produced despite repeated opportunities and the serving officers/officials has not forthcome to file an affidavit of service, can it be said that the order has been communicated to the detenue within the meaning of Article 22(5) and Section 13 of the J&K Public Safety Act 1978. Now in such circumstances when even detention record is not produced despite repeated opportunities and the serving officers/officials has not forthcome to file an affidavit of service, can it be said that the order has been communicated to the detenue within the meaning of Article 22(5) and Section 13 of the J&K Public Safety Act 1978. Once it is alleged that detenue is wrongfully held it is incumbent upon the State to satisfy the court that a detention is legal and conforms to mandatory provisions of the public Safety Act and also there is strict adherence to the constitutional safe guards embodied in Article 22(5) of the constitution. (See Mohi-ud-din Vs. District Magistrate Beed and Ors AIR 1987 SC 1979 and AIR SC 43). In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Ors (AIR 1999 SC 3051) it has been observed:- "..........The right to be communicated the grounds of detention of detention flows from Articles 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given the detenue to make a representation can be made and the order to 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........" 5. Though, the respondents have in counter sated that receipt has been obtained from the detenue is token of the fact that the order and grounds were handed over and explained to him in Urdu/Kashmir language which he understood, but despite opportunities neither receipt nor any acknowledgement in any form was placed before the Court to support this bald assertion of the detaining authority. In Smt. Raziya Umar Bakshi Vs. Union of India and Ors (AIR 1980 SC 1755) (Suppl) it has been held:- " ..........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." 6. In the aforesaid view of the matter, the petition is allowed as the detention is held vitiated. The respondents/authority/official having physical corpus of subject, Nisar Ahmad Khanday S/O Gh. Qadir Khanday R/O Dadwagan Qamer, Tehsil Dooru, district Anantnag, are/ is directed to set this detenue free and at liberty forthwith, provided not required in any case, offence or matter. Copy of the order may be given to the detenue free of cost. 7. Disposed of accordingly.