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2003 DIGILAW 90 (JK)

Nazir Ahmad Kumar v. State

2003-04-17

SYED BASHIR-UD-DIN

body2003
1. The subject Nazir Ahmad Kumar is detained U/s 8 of J&K Public Safety Act, by District Magistrate Baramulla (Respondent No, 2) under his order No: 128/DMB/PSA/2746 dated: 22-12-01. Pursuant to this order subject is lodged in preventive custody in Udhampur jail. This order and the consequent detention is under challenge in this petition. 2. Number of grounds are taken to challenge the detention. However, the counsel confines his submissions to following grounds. The counsel Mr. Mir Shafaqat solicits that the detenue has been neither served the order of detention nor the material referred in the grounds of detention. Being an illiterate, detenue is unable to understand the English language. He could not understand the grounds served upon him in English. No translated copy either in Urdu or Kashmiri was provided to him. The grounds were not read over and explained to him. He was denied opportunity to make representation against the detention to Government. In such circumstances failure to communicate the grounds to detenue infringes his right guaranteed to him under Article 22 (5) of the Constitution. These submissions are broadly based on paras 2, 7 and 8 of the petition. 3. Counter has been filed by the detaining authority. The Govt. Advocate has contested the submissions and submits that the order with grounds has been communicated to detenue. The grounds were read over and explained to him in the language which he understood though the detenue being illiterate is so admitted. The detenue has been given an opportunity to file representation to Govt. against his detention but yet he has failed to make the representation. There is no infraction of any statutory provisions of law. The mandate of Article 22 (5) of the Constitution is complied with in letter and spirit. These contentions are covered by paras III and IV under head ˜facts of the case, and paras (E&F) G&H under the head ˜Grounds™ of the counter. The detention record is also made available. 4. The petition allegations that the detenue is illiterate and unable to understand English language is not refuted by the other side in the counter. It is admitted that the detenue is illiterate (para ˜J™ under head ˜grounds™). The further allegation is that the grounds have not been supplied to detenue in Urdu/Kashmiri language which alone he understood. He has not been even given translated copy either in Urdu/Kashmiri. It is admitted that the detenue is illiterate (para ˜J™ under head ˜grounds™). The further allegation is that the grounds have not been supplied to detenue in Urdu/Kashmiri language which alone he understood. He has not been even given translated copy either in Urdu/Kashmiri. The grounds have been unintelligible to the detenue. The detenue was prejudiced to make effective representation against the detention. 5. The respondents in terms have admitted non supply of translated copies of the grounds in Urdu/Kashmiri language but it is stated that the contents of the grounds of detention have been explained to detenue in the language which he fully understood and for the purpose detention record is referred to. Perusal of detention file as made available by the GA shows that no receipt whatsoever is on record to indicate that either the grounds have been supplied to the detenue or that the grounds have been at any stage read over and explained to detenue, even in the language understood by him as alleged by the respondents. What is on record is that receipt bearing thumb impression of the detenue of the order of detention having been served on the detenue when he was handed over for lodgment to District Jail Udhampur. The averments in the counter (para G at page 5 of the counter) that "the detenue has also put his thumb impression on the receipt of grounds of detention as would be seen from the records", is nothing but a lie and in any case not at all supported by record. Contextually the allegation of the detenue is uncontroverted and it is obviously for the respondents/detaining authority to show that the mandate of law has been complied with on this count. It also merits to be taken note of that the detaining authority in fact has filed the counter ostensibly on information which he has derived from official record and here the official record itself belies the assertion of the detaining authority. It is nobody™s case that detaining authority has served the grounds or the order in question. 6. Manifestly there is nothing on record to show that the grounds have been served on detenue as claimed by the State (through detaining authority) as mandated by Section 13 of J&K P.S. Act, 1978. It is nobody™s case that detaining authority has served the grounds or the order in question. 6. Manifestly there is nothing on record to show that the grounds have been served on detenue as claimed by the State (through detaining authority) as mandated by Section 13 of J&K P.S. Act, 1978. There is also failure on the part of the State to discharge the constitutional obligation as mandated by Article 22 (5) of the Constitution. 7. In Smt. Raziya Umar Bakshi Vs. Union of India (AIR 1980 SC 1751) in the context of preventive detention the late S. Murtaza Fazal Ali, J, observed:- "The service of the grounds 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. 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.; See also Hadibandhu Das Vs. District Magistrate, Cuttack (AIR 1969 SC 43). 8. In Sophia Ghulam Mohd Bham Vs. State of Maharashtra and Ors. (AIR 1999 SC 3051), the Apex Court observed:- "...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 detenue to 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 detenue and the material on which those grounds are based are also disclosed and copies are supplied to the person detained in his own language..." 9. The contention of the Ld. The contention of the Ld. counsel for the petitioner as even pleaded in the petition that the detenue has not been supplied the documents/material referred in the grounds of detention thereby denying him the purposeful opportunity of making representation is replied by the detaining authority in paras E&F under the head "Grounds", in counter as "....that the grounds of detention are based on cogent material and sufficiently indicate that the activities of the detenue are of such nature as to warrant detention of the detenue under the provisions of J&K Public Safety Act, 1978". Obviously the respondents are not denying that the material referred is relied on for purpose of detention. The grounds of detention clearly reveals that the detenue™s indulgence in terrorist activities at public place for creating terror and panic among the people, allegations of selected killings, crossing over to the other side of LOC and then crossing back to the valley alongwith number of youth, obtaining training in handling the arms and ammunition and recovery of arms and ammunition are all based on some material and documents not denied by the other side. The detention file shows that the concerned Supdt. of Police has also sent report/dossier and FIR 293 of 2001 registered at P/S Bandipora and this has been part of the material and documents from which the detaining authority has drawn satisfaction to record order of detention U/s 8 of the J&K Public Safety Act. If it be so, then the detenue is not supplied the material/documents referred to and prominently relied on in grounds. In such circumstances the order of detention cannot be said to have been communicated and the detenue cannot be said to have been given an adequate opportunity for making a purposeful and effective representation against the order of detention. 10. In Naseer Ahmad Sheikh Vs. Additional Chief Secretary Home and Anor. (1999 SLJ 241) a Division Bench of this court observed:- "...The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. 10. In Naseer Ahmad Sheikh Vs. Additional Chief Secretary Home and Anor. (1999 SLJ 241) a Division Bench of this court observed:- "...The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. No where is it pleaded muchless shown that the copy/ copies of these reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective representation against the order." In the above view of the matter, the impugned detention order No. 128/DMB/PSA/2746 dated: 22-12-2001 and the consequent detention is vitiated, therefore quashed. Respondents/detaining authority/officer having physical corpus of the detenue Nazir Ahmad Kumar (age 17 Yrs.) S/O Gh. Mohd Kumar R/O Arin Bandipora, are/is directed to release him and set him at liberty forthwith provided he is not required in any other case, offence or matter. Copy of this order be given to petitioner free of cost. Registry to take follow up action.