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2008 DIGILAW 151 (JK)

Manzoor Ahmad v. State Of J. &K.

2008-04-25

BASHIR AHMAD KIRMANI

body2008
1. Impugned in this writ petition with a prayer for its quashment is the detention order No. PSA-2007/01 purporting to have been passed by District Magistrate, Reasi on 03.11.2007, whereunder one Manzoor Ahmad S/O Abdul Aziz Gujjar R/O Dhakikote is currently undergoing detention. 2. Ground pleaded in support of prayer is that the detention order passed against petitioner is based on non existing circumstances and is legally untenable as having been passed in violence of procedure particularly because even though illiterate and unable to understand English, grounds of detention have been furnished to the detenue in that language which he could not understand. During course of submissions, petitioners counsel while further elucidating contents of the petition has also informed that the criminal case on basis whereof the detenue was originally arrested has already been dismissed, which belies the basis of his detention regarding which no satisfaction too has been recorded by detaining authority who did not even supply the requisite documents to petitioner. 3. Respondents have neither filed reply nor furnished records of detention pertaining to the matter with the result that their version regarding pleas taken in the memo of petition is not known. During his oral submissions, however, learned AAG has contended that since activities of the detenue were highly prejudicial to security of State, he was rightly detained in observance of all requisite procedures in view whereof he had no reason to challenge the detention. Learned AAG has, however, admitted detenues acquittal from substantive criminal case. 4. I have heard learned counsel and considered the matter. Perusal of the grounds of detention allegedly furnished to detenue reveals that he is alleged of having been associated with a militant organization and as such played a pivotal role in carrying out the dastardly act of violence which resulted in death of around 26 persons at Prankot of District Reasi, by guiding the involved militants to spot for which his activities were held to be anti national and threatening to national security. The said memo of grounds also reveals that in above said occurrence resulting in death of 26 persons, concerned police registered a case being FIR No. 37/1998 of Police Station, Reasi U/s 302/307/436/120-B RPC r/w Section 4/25 Arms Act wherein the detenue alongwith co-accused was convicted by Sessions Court, Udhampur on 29.07.2007 only to be left away by the appeal court. The judgment from Division Bench of this court which heard petitioners conviction appeal No.10-A/2003 together with concerned courts reference No. 08 of the same year reveals that detenues conviction as recorded by trial court was reversed by appeal Bench on 31.07.2007 resulting in clear acquittal on the grounds that there was no evidence to connect him with alleged occurrence and sustain the conviction recorded by trial court. 5. In that circumstantial backdrop arise for consideration the two grounds pleaded by detenue for having his detention quashed. First the factual limb questioning substance of his involvement in alleged occurrence which after the acquittal order recorded by this court absolving the detenue of his involvement in the above said massacre which he was charged with, in view whereof allegation of his involvement in the crime is not easily believable. What other factual circumstances did or do exist to justify detenues continuous detention have not been spelled out. 6. In addition, the detenue, who was convicted way back in 2003 has admittedly been in custody till date since his arrest reportedly in 1999 has completed around a decade of confinement till now. It is not gatherable from anywhere as to what such activities were attributable to him during these ten years as would be a threat to security of the State. Languishing in jail as he was for as long as ten years, the detenue cannot easily be assumed to have committed any such act or acts as could influence the word outside his jail unless shown to have had. As a matter of fact with acquittal from the only alleged involvement, it appears to be quite difficult for detaining authority to justify his detention on the grounds communicated to him for their staleness, lack of proximity in point of time and dependability particularly because neither in detention order nor elsewhere does he appear to have disclosed as to on what reasons/circumstances/grounds, he assumed subjective satisfaction regarding necessity of having the detenue detained in custody even after his acquittal by the appeal Bench. 7. Now comes petitioners plea that grounds of detention which are admittedly quoted in English language reportedly not understood by the detenue were not translating/ explaining to him is as already said unrebutted on record. 7. Now comes petitioners plea that grounds of detention which are admittedly quoted in English language reportedly not understood by the detenue were not translating/ explaining to him is as already said unrebutted on record. Law is well settled that when detenue does not understand the language in which grounds of detention are served upon him the same are required to be translated/explained to him in the language that he understands without which they would not be deemed to have been properly communicated resulting in depravation of his right to make an affective representation against his detention. Reference in this behalf may be made to Apex Court judgment in "Razia Bi Vs. Union of India" reported as AIR 1980 SC 1751, the relevant portion wherefrom is reproduced below: - "In case where order of detention is coached in a language that detenue does not understand the same is required to be translated to him in a language understood by him without which it would deemed not to have been effectively communicated and non-communication of grounds deprives the detenue of his important constitutional right of representing against order of detention. In case the detaining authority claims the grounds to have been so communicated to the detenue then the officer who did so is required to put in an affidavit in support of the assertion that as a matter of fact he did so, or else the detaining authority is required to record his satisfaction regarding the grounds having been so communicated to the detenue. Instantly the assertion of detenue is that even grounds in English language were coached and there is an assertion also on the part of detaining authority that they were translated to the detenue, but the same appears to be quite bald for want of any supporting material like affidavit of concerned officer as would be required in terms of said judgment mentioned above which would be sufficient to vitiate the detention under challenge. In view whereof other grounds pleaded/projected do not require to be discussed." Since nothing to observe the mandate of aforesaid judgment appears to have been done in the instant case, the detention suffers on that count also. 8. In view whereof other grounds pleaded/projected do not require to be discussed." Since nothing to observe the mandate of aforesaid judgment appears to have been done in the instant case, the detention suffers on that count also. 8. For all that has been stated above, petition is allowed and the impugned detention order No. PSA-2007/01 dated 03.11.2007 passed by District Magistrate, Reasi, whereunder detenue namely, Manzoor Ahmad S/O Abdul Aziz R/O Dhaki Kote District Reasi, is currently under detention is quashed with a direction for his immediate release. Disposed of.