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2009 DIGILAW 23 (JK)

Zakir Hussain Ganai v. State Of J. &K.

2009-02-04

MOHAMMAD YAQOOB MIR

body2009
1. Grounds of detention in all the five petitions are similar, xerox-copy of the grounds of detention form basis for each detention order under challenge. Therefore, all these petitions are disposed of together by this common judgment. 2. As per the grounds of detention, detenues have been allegedly indulging in timber smuggling for so many years, they visit the forests during night hours, cut down the trees, dress them into Phadas (Sleepers) and then smuggle the same on horses and mules. After transporting they keep the same concealed at unknown places wherefrom they manage dispatching them to different quarters for sale. In the process, they used to succeed in giving slip to the law enforcing agencies and by their acts extensive damage is caused to the forests which affect the forest wealth and economic development of the State. 3. It is further stated that in most of the ambushes laid by Police, the detenues succeeded to escape alongwith stolen timber. On 01.01.2008 at about 2200 hours, Forest Range Officer, Shopian lodged the report in Police Station Shopian to the effect that he had intercepted the five smugglers at 1900 hours on 01.01.2008 five horses loaded with 10 Phadas (Sleepers) of Green Kail were seized and produced; case was registered as Crime No. 171/2008 Police Station Shopian for commission of offences punishable under Section 379 RPC and Section 6 of Forest Act. It is further stated in the grounds of detention that detenues in the said case are arrested but there is every likelihood that they may manage release on bail and would again indulge in timber smuggling. 4. Based on the aforesaid grounds against all the five detenues, five separate detention orders bearing nos. 44/DMS/PSA/2008, 45/DMS/PSA/2008, 46/DMS/PSA/2008, 43/DMS/PSA/2008 & 42/DMS/PSA/2008 dated 07.10.2008 respectively have been passed. 5. Appearing counsel for the petitioner first contended that when all the detenues were under custody in connection with FIR No. 171/2008 for commission of offence punishable under Section 379 RPC and Section 6 of Forest Act in Police Station, Shopian, there was no requirement of passing the order of detention, more so, when the detenues had not applied for bail. In the reply affidavit, it is stated that whether the detenues had applied for bail or not, could not stand in the way of the detaining authority in passing the orders of detention. In the reply affidavit, it is stated that whether the detenues had applied for bail or not, could not stand in the way of the detaining authority in passing the orders of detention. In the grounds of detention, it is mentioned that the detenues are in custody but there is every likelihood that they may manage to get release on bail. 6. It is trite that there is no bar for detaining a person under Public Safety Act, even if he is already in custody in connection with any other case but the detaining authority has to record compelling reasons so as to justify the order of detention. Simply to say that the detenues may manage release on bail is not sufficient that can be termed to be ipse-dixit of the detaining authority. There should be some supporting material to show that the detenues are likely to get released on bail. To infer that the detenues have imminent possibility to come out on the bail must be borne out by the material; in absence of such material no such inference can be drawn. 7. It shall be quite relevant to quote Para 26 of the judgment reported in JT 2008 (9) SC 243 captioned K.K. Saravana Babu vs. State of Tamil Nadu and another. "The order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is snot sustainable and is contrary to the well settled principles indicated by this Court in a series of cases relating to preventive detention. The impugned order therefore, has to be quashed." 8. The ratio of the aforesaid judgment squarely covers the position of the cases in hand. 9. The impugned order therefore, has to be quashed." 8. The ratio of the aforesaid judgment squarely covers the position of the cases in hand. 9. Next it is contended by the appearing counsel for the petitioners that the detenues are illiterate cannot understand any language other than Kashmiri. The grounds of detention have not been explained to the detenues so as to enable them to effectively represent against their detention, resultantly, have been deprived of their right guaranteed under the Constitution. The violation of the Article 22 (5) of the Constitution is quite clear. Meeting this position in the reply affidavit, it has been averred that the grounds of detention stand explained to the detenues in their own language and after understanding the same, they have put their signatures on the warrant of execution. 10. The position of the detenues being illiterate is not denied, therefore, grounds of detention were required to be explained to them in Kashmiri Language. Detention record, despite repeated opportunities, has not made available, neither any affidavit has been filed by the person who is said to have explained the grounds of detention to the detenues. 11. It is well settled that when the grounds of detention are couched in a language not known to the detenue unless contents are explained or translated and copy thereof is supplied, it will amount to non-serving of grounds of detention which in turn will render the order of detention as invalid. 11. It is well settled that when the grounds of detention are couched in a language not known to the detenue unless contents are explained or translated and copy thereof is supplied, it will amount to non-serving of grounds of detention which in turn will render the order of detention as invalid. It is quite apt to quote relevant Para of the Judgment (Smt. Raziya Umar Bakshi vs. Union of India and other) reported in AIR 1980 SC 1751: "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. A bare statement 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." 12. The law as laid down applies to the present case as the non-supply of the grounds of the detention in Kashmiri language and the absence of the affidavit of the person/official who is said to have explained the grounds of detention gives rise to a position wherefrom it can be inferred that there is serious lapse which has prevented the detenues from making the requisite representation. 13. 13. Learned counsel vehemently further contended that one of the detenue, namely Abdul Rashid Chouhan is a disabled person walks only with the help of crutches as averred in Para - 2 of his petition bearing HCP No. 269/2008 which is not denied in the reply affidavit, when it is so, can a person walking with the help of the crutches visit the forest during night hours so as to cut down the trees and after cutting dress it into Phadas (Sleepers) load the same on the horses? This shows non-application of mind on the part of the detaining authority. That apart, had the detenues been smuggling the timber then cases would have been registered against them from time to time. In the grounds of detention, it is mentioned that the detenues have been smuggling the timber for last so many years but same is not supported by any material. The contention raised is not only attractive but forceful, as at least detaining authority while mentioning in the grounds of detention that the detenues have been smuggling the timber for last so many years, should have asked for some material so as to record the satisfaction about the activities of the detenues for last so many years. In the grounds of detention, it is further mentioned that the detenues had given slip on so many occasions when ambushes were laid but what prevented Police/Forest authorities in not registering the cases on all such occasions. Same could be justified basis for maintaining ground of detention viz-a-viz smuggling of timber for last so many years. This clearly shows non application of mind on the part of the detaining authority. 14. The detaining authority has to bear in mind that detaining a person means to deprive a person of his liberty. Liberty of an individual can be curtailed only when there are grounds based on proper material and on proper subjective satisfaction, in absence, it may amount to trampling with the personal liberty which in turn involves violation of human right guaranteed to a person under the Constitution. Right to liberty cannot be trampled unless there are reasonable grounds for so doing. 15. It is a matter of concern that the forest wealth is, being damaged, any person whosoever dares to cause damage to the forest wealth has to be dealt with iron hand. Right to liberty cannot be trampled unless there are reasonable grounds for so doing. 15. It is a matter of concern that the forest wealth is, being damaged, any person whosoever dares to cause damage to the forest wealth has to be dealt with iron hand. There can be no leniency but for enforcing the preventive measures so as to deter a person from causing any damage to the forest wealth, the law has to be followed in strict sense so that there is no chance of unreasonable trampling with guaranteed human rights. 16. In the backdrop of the reasons stated above and the law referred, the detention orders under challenge are unsustainable, therefore, detention orders bearing nos. 44/DMS/PSA/2008, 45/DMS/PSA/2008, 46/DMS/PSA/2008, 43/DMS/PSA/2008 & 42/DMS/PSA/2008 dated 07.10.2008 are quashed. All the detenues namely (1) Zakir Hussain Ganai S/o Mohd Shaban Ganai R/o Check Reshnagri, Tehsil and District Shopian, (2) Rashid Chouhan (Chopan) S/o Gh. Hassan R/o Check Sedow Tehsil and District Shopian, (3)Abdul Rashid Katari S/o Gh. Hassan Katari R/o Check Sedow Tehsil and District Shopian, (4) Manzoor Ahmed Sheikh S/o Gh. Qadir Sheikh R/o Check Reshnagri, Tehsil and District Shopian and (5) Nazir Ahmed Sheikh S/o Gh. Mohammad Sheikh R/o Check Reshnagri, Tehsil and District Shopian be released, provided they are not required in connection with any other case including FIR No.171/2008 Police Station, Shopian. 17. All the five petitions disposed of as above.