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2003 DIGILAW 379 (JK)

Irfan Ahmad Dar v. State Of J. &K.

2003-12-02

S.K.GUPTA

body2003
Per Honble Mr. Justice S. K. Gupta (Oral) Irfan Majid Dar son of Abdul Majid Dar R/O Chandapora Tehsil Bijbehara, District Anantnag has been detained under section 8 of the J&K Public Safety Act, 1978 in order to prevent him from acting in any manner prejudicial to the security of the State for a period of 24 months and lodged in Sub-Jail Kote-Bhalwal, Jammu, by District Magistrate, Budgam, respondent No. 2, vide his order No. DMS/PSA/22 of 2002 dated: 11.12.2002. Subsequently the detention order was approved by the Government vide order No. Home/PB-v/495 of 2003 dated: 17.9.2003. 2. The detention order has been challenged by the detenu through his father Abdul Majid Dar on the grounds explicitly delineated in the petition. 3. To begin with, it is stated that detenu has not been supplied with the grounds of detention, material and the documents considered by the detaining authority on the basis of which the detention order has been passed and thereby deprived the detenu to make a meaningful representation against the detention order to the competent authority viz: Government. It was next submitted that the detenu is not well versed with the English language and the grounds provided were in English. The detenu understands only Urdu and Kashmiri. No translation script in Urdu or Kashmiri was provided to the detenu which also came in his way to make an effective representation against his detention and thus the order of detention is rendered invalid and illegal. 4. In the counter filed by the detaining authority, respondent No. 2, it is averred that copy of the grounds of detention as well as order of detention was handed over to the detenu against proper receipt. In reply to ground (f) of the petition, Para 3 of the counter affidavit filed by the respondent detaining authority reads as under: " In reply to grounds, e, f, g, h, it is submitted that the detention order has been issued by the competent authority on the basis of well founded material same was furnished to the detenu against proper receipt within stipulated time. The order of detention was executed and confirmed by the competent authority within time. The order of detention is valid and does not suffer from any infirmity or illegality. It is submitted that the grounds of detention are self-speaking and in detail. The order of detention was executed and confirmed by the competent authority within time. The order of detention is valid and does not suffer from any infirmity or illegality. It is submitted that the grounds of detention are self-speaking and in detail. The detenu besides being involved in the FIR of which reference is made in the grounds of detention and keeping in view the activities of the detenu. The detaining authority after proper application of mind passed the order of detention. The order of detention is legal, valid and does not suffer from illegality or infirmity as alleged by the detenu. Facing of trial of the detenu in the FIR of which reference is made in the grounds of detention shall not stand as a bar in the grounds of detention shall not stand as bar for making an order of preventive detention against the person of the detenu, the grounds of challenge being devoid legal force and hence deserves to be rejected. 5. On going through the pleadings as also the detention order it is indisputedly gatherable that for the purpose of detention in question, the detaining authority has drawn subjective satisfaction from the material/record which includes dossier and other connecting documents, made available by the SSP, Srinagar. Whereas the receipt of grounds of detention alleged to have been obtained and duly signed by the detenu discloses that grounds of detention contained in one leaf through Superintendent Jail, Jammu along with order No., DMS/PSA/22 of 2002 dated: 11.12.2002 were supplied to the detenu. The receipt further discloses that the grounds of detention were read over and explained to the detenu in English/Urdu/Kashmiri language understood by him without giving a mark to show as to in which language the grounds of detention were read over and explained to the detenu. The detention record nowhere discloses that the grounds of detention and the other material relied upon by the detaining authority for drawing satisfaction and framing the detention order was also supplied with their translation script or language which is understandable to the detenu. The non-supply of the requisite material and non-communication of the grounds in the language understood by the detenu amounts to depriving the detenu of an opportunity of making a representation against the order in violation of the safeguards provided in Article 22(5) of the Constitution of India and section 13 of the J&K Public Safety Act. The non-supply of the requisite material and non-communication of the grounds in the language understood by the detenu amounts to depriving the detenu of an opportunity of making a representation against the order in violation of the safeguards provided in Article 22(5) of the Constitution of India and section 13 of the J&K Public Safety Act. The detaining authority in his counter also has neither controverted the contention of the detenu with regard to no-supply of the material viz: the dossier, the FIR and other documents, the basis of detention order, nor has he specifically stated as to what documents/material was provided to the detenu along with detention order. Even the receipt obtained from the detenu does not mention the document/material supplied to him other than the copy of the detention order. 6. Admittedly, the grounds of detention were prepared on the basis of dossier which makes a reference to an FIR No. 376 of 2002 registered against the detenu in which he was arrested for offence under section 7/25 Arms Act, in Police Station, Sadar. These grounds have been reflected in extenso in the grounds of detention by the detaining authority. The dossier further discloses that the detenu was arrested from Bone and Joint Hospital, Srinagar on 24.10.2002 and when a Chinese grenade was recovered from his possession. Neither the copy of the FIR nor disclosure statement in pursuance of which recovery has been made nor seizure memo nor the copies of the dossier along with grounds of detention have been supplied to the detenu. The dossier and also the grounds of detention also indicates and referred to the activities of the detenu as active member of Hizbul Mujahideen outfit indulging in subversive activities in Bijbehara without providing any documents to being proximity between the detenu and the detention order. It, therefore, makes it clearly manifest that in the grounds of detention the detenu has rightly pointed out and also borne out from the detention record that the material/documents and dossier that entered the subjective satisfaction of the detaining authority have not been supplied to the detenu, as mandated by Art. 22(5) of the Constitution of India. The detention record also does not show, rather confirms the ground (f) taken in the petition by the detenu that he was not supplied the grounds of detention with translation in script or language understood by him. The detention record also does not show, rather confirms the ground (f) taken in the petition by the detenu that he was not supplied the grounds of detention with translation in script or language understood by him. Failure to do so amounts to denial of right of being communicated the grounds of detention and also violation of Section 13 of the J&K P. S. Act and thereby deprive him of an opportunity to make a representation against the said order to the Government. 7. The Apex Court in "Powanamnul v. State of Tamil Nadu and Ors" 1999(2) SCC 413 held as under: "The amplitude of the safeguard embodied in Art.22 (5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 8. This clearly implies that copies of the documents relied on in the grounds of detention must be furnished in the language understood by the detenu. Non-supply would be denial to continue detention and in that event the detenu need not show that any prejudice is caused to him. This is because the non-supply of such documents would amount to denial of right of being communicated, and thereby the right of being afforded an opportunity to make an effective representation against the detention order. 9. Again in Sophia Ghulam Mohmmad Bham v. State of Maharashtra & Ors., AIR 1999 SC 3051, the Apex Court reiterated and reads as under: "........ The right to be communicated the grounds of detention flows 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 detenu top 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 detenu 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....." 10. Taking into consideration the aforesaid facts and circumstances in its cumulative, the detenu cannot be said to have been given an opportunity to make a meaningful representation against his detention as guaranteed under Art. 22(5) of the Constitution. Apart from under the provisions of Jammu and Kashmir Public Safety Act, unless the material/documents, which form basis of substantive satisfaction of the detaining authority in formulating the detention order, is supplied and the grounds of detention communicated in the language understood by him besides the translated script and the language known to him, the detenu cannot be said to have been given the grounds with the material as mandatorily required under Article 22(5) of the Constitution and the provisions of the J&K Public Safety Act. 11. In the result, I allow the petition and adjudge the detention order invalid and accordingly quash the same. Respondents or the officer having the custody of the corpus shall set the detenu at liberty forthwith provided the detenu namely Irfan Majid Dar son of Abdul Majid Dar R/O Chandpora, Bijbehara-Anantnag is not required in any other case. The detenu shall be supplied with the copy free of cost and the order be communicated to the concerned for follow up action, by the registry.