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2003 DIGILAW 51 (JK)

Fayaz Ahmad Bhat v. State

2003-03-20

Y.P.NARGOTRA

body2003
Y.P. Nargotra Pursuant to detention order No. 4/DMP/2001 dated 6.4.2001 passed by District Magistrate Pulwama Shri Fayaz Ahmed Bhat s/o Abdul Geni Bhat) R/o Chatrigam was ordered to be detained under Section 8 of Public Safety Act. The detention order was executed and the detenue taken into preventive custody or 12.4.2001. The detention period was fixed at 24 months for preventing the detenue from acting in any manner which if pre-judicial to the security of the state. The detention and order of detention is being assailed in this petition. 2. Ld. counsel for the petitioner has taken many grounds of challenge which are being taken for consideration one by one. 3. Firstly Ld. counsel for the petitioner submits that District Magistrate has not applied his mind before taking the decision for passing the detention order under Section 8 of the Act. According to Ld. counsel the detaining authority was under a legal obligation to take into consideration all the relevant material and grounds on which the freedom of the detenue was considered to be prejudicial to the security of state. He submits that from the bare perusal of the detention order it is revealed that no materiel was perused by the District Magistrate and as such detention and detention order of the detenue is vitiated. Ld. counsel read out the order of detention passed by the detaining authority and laid emphasis or the words" on the basis of ground of detention placed before me", to urge that the detaining authority had perused only the grounds and not the material for drawing his satisfaction. 4. The contention raised though attractive is not impressive. The adequacy of the material or which a detaining authority draws satisfaction is not open to judicial review. Section 8 of the Act does not lay down any parameters as to how the satisfaction is to be drawn. It is for the authority to rely upon any kind of material to draw his satisfaction that activities of a person sought to be detained are prejudicial for the security of state. It is his subjective satisfaction. The sufficiency of the material or which such satisfaction has been drawn is not open to the judicial review. 5. The safeguards against misuse of the power vested in the detaining authority under Section 8 are enshrined in Sections 13, 15 and 17 of the Act. 6. Second, Ld. It is his subjective satisfaction. The sufficiency of the material or which such satisfaction has been drawn is not open to the judicial review. 5. The safeguards against misuse of the power vested in the detaining authority under Section 8 are enshrined in Sections 13, 15 and 17 of the Act. 6. Second, Ld. counsel for the petitioner next contended that detenue is not conversant with English and knows only Kashmiri and Urdu. The grounds of detention were not explained in Kashmiri or Urdu nor any translated script was furnished to the detenue which has rendered his right to make effective representation against his detention in effective. He relies upon the case reported in .. AIR 1980 SC 1751. In the case the Honble S. Murtaza Fazal Ali `J (as his Lordship then was) held: "3. This allegation seems to have been denied by the respondents in para. 14 of the affidavit of Mr. P.M. Shah, or behalf of the detaining authority, where he stated that the grounds were explained to the detenu in the language known to him. It was averred in para 5 that one Mr. A.K. Sharma, Police Inspector, CID (Crime Branch), Ahmedabad had explained to the detenue the order of detention and the grounds communicated to him on January 30, 1980. This affidavit, in my opinion is wholly inadmissible in evidence. 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 detenu by translating the same in the language which the 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 detenu. The service of the ground of detention on the detenu 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 detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie. 5. In this view of the matter, the detention becomes invalid on this ground alone. 5. In this view of the matter, the detention becomes invalid on this ground alone. I 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 detenu, it must see to it that the grounds are explained to the detenu, 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 detenu 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. We have pointed out in several cases that the courts frown on detention without trial and insist on the strict compliance of the constitutional safeguards enshrined in Article 22(5) to the letter of the law, be cause a non-compliance of these safeguards would itself be sufficient to vitiate the order of detention. Despite our repeated observations unfortunately, however the detaining authority continues to pass orders of detention in a casual or cavalier fashion with the result that the courts are compelled to release the detenus. We hope and trust that in future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the constitution, more particularly because the liberty of the subject is in peril." 7. The District Magistrate Pulwama in his counter has given the following reply on the point of communication of grounds; "The detention warrant came to be subsequently executed and detenu taken into preventive custody on 12.4.2001 after contents of warrant were read over and explained to the detenu in Urdu/Kashmiri language which he fully understood as the detenu has put his thumb impression on the executed copy of detention order over its endorsement. The grounds of detention were also supplied to the detenu on 12.4.01 itself, against proper receipt and contents thereof were also read over and explained to him in the language which he fully understood." 8. The grounds of detention were also supplied to the detenu on 12.4.01 itself, against proper receipt and contents thereof were also read over and explained to him in the language which he fully understood." 8. Thus it is positive stand of the respondent that contents of the warrant were read over and explained to the detenue in Urdu and Kashmiri whereafter the detenue put his thumb impression on the executed copy of the detention order. But the requirement of section 13 is that the grounds of detention shall be communicated to the detenue so as to enable him to make representation against the detention at the earliest. Therefore reading and explaining of the contents of detention order alone will not be a compliance of the requirement of law. The detaining authority has further taken the stand that the grounds of detention were supplied against proper receipt and were also read over and explained in the language which detenue understood. 9. It is not the case of the respondent that any translated version of the grounds of detention in the language which the detenue understood was ever supplied. As per the ratio of the above quoted authority the translated version has to be supplied to the detenue. So the question arising for the consideration is, whether failure to supply translated version of the grounds of detention in the language which the detenue understands and supplying of grounds in the language which he does not understands vitiates the detention in spite of the fact that the grounds supplied have been explained in the language which the detenue understands? 10. The underlying purpose of supplying grounds of detention to the detenue is that his right to make effective representation against his detention is not impaired. For making the effective representation it is necessary that he knows what are the grounds on which he has been detained. When the grounds are couched in a language has does not understand then these must be read over and explained to him in the language he understands. When the grounds are to be supplied these must be supplied in the language which the detenue can read and understand, so that he can make an effective representation. When the grounds are couched in a language has does not understand then these must be read over and explained to him in the language he understands. When the grounds are to be supplied these must be supplied in the language which the detenue can read and understand, so that he can make an effective representation. But in the case of a detenue who cannot read, write and understand any language then how can his right to make effective representation get impaired by supply of the grounds in a language which he cannot read, write and understand but such grounds being read over and explained to him in the language he understands. In such a case explaining of the grounds in the language such detenue understands in my view will be sufficient. In AIR 1991 SC 1640 the Apex Court has laid down: ".....It is not sufficient to pay that the detenu were not supplied the copies of the documents in time on demand but it must be shown that the non-supply has impaired the detenus right to make effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned detenue, 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 can 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 cut any such prejudice." 11. Where the detenue has stated that he could read and write Kashmiri and Urdu language but where the detenue has put his thumb impression on the detention order served it can be assumed that he cannot read and write any language and in such a situation supply of grounds in any other language does not vitiate the detention, provided it is shown that the grounds of detention have been explained in the language the detenue understands. 12. 12. It his been next contended that the detenue was already in the police custody when the detention order was passed. According to the Ld. counsel for the petitioner that when the petitioner had not applied for bail it could not be assumed by the detaining authority that there was any prospect of detenue being released on bail in near future therefore the detaining authority could not have been satisfied reasonably that there was likelihood of the detenue continuing with the prejudicial activities after his release in future which is a since quo non for a valid detention order against a person in custody. 13. I am not in agreement with the Ld. counsel. The non making of a bail application is not the criteria. It is the nature of the offence in connection with which the detenue is in custody is material and has to be considered by the detaining authority. If the offence is such that a detenue may be enlarged on bail the detaining authority can assume that there is prospect of the release of the detenue on bail and against such detenue detention order can be passed. 14. For the reasons stated above no merit is found in the petition, it is therefore dismissed.