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2009 DIGILAW 306 (JK)

Hamida v. State Of J. &K.

2009-06-05

MOHAMMAD YAQOOB MIR

body2009
1. Detenue, a 52 year old lady, is allegedly involved in destroying the social environment as she is dealing in narcotic drugs and psychotropic substance by selling charas, brown sugar and dust-charas. Earlier she had been arrested on 30.5.2004 in connection with FIR No.35/2004 for commission offence punishable under Section 20/28 NDPS Act but released on bail. Again she has been arrested on 26.10.2006 in connection with case FIR No.50/2006 for commission of same offence but released on bail. Now again she has been arrested on 21.5.2007 in connection with case FIR No.27/2007 P/S Lal Bazar for the commission of offence punishable under Section 20/28 NDPS Act. The activities of the detenue being a serious threat to the health, welfare of the people and highly prejudicial to the maintenance of public order compelled the detaining authority to pass the order of detention impugned. Detenue while in custody from 21.5.2007 in connection with case FIR No.27/2007 P/S Lal Bazar has been detained pursuant to detention order impugned dated 3.7.2008(wrongly quoted as order No.Div-Com/Dev-247/1/776 dated 4.7.2008 when the order of detention bears No.Div0Com-K/247-I/2008 dated 3.7.2008) for a period of 12 months and as such lodged in Central Jail, Srinagar. 2. The activities of the detenue no doubt are horrifying as her involvement in the alleged illicit traffic in narcotic drugs and psychotropic substance is absolutely unbecoming of a lady when she is known by the name of a mother, daughter and grandmother. These sweetest words are eclipsed by her alleged involvement in narcotic drugs. Social environment cannot be permitted to be polluted nor degradation by traffic in narcotic drugs allowed to operate. 3. Guarantee to the liberty of a person flows from Article 21 of the Constitution and before curtailing such liberty, adherence to law has no substitute. Preventive measures, so as to deter a particular wrong doer from indulging in activities prejudicial to the public order, is controlled by various safeguards which have the object of protecting the personal liberty. When a person is to be detained, he/she is to be given ample opportunity of making representation so as to show his/her innocence/non involvement relatable to the public order. 4. It is contended that the detenue is an illiterate lady has not been furnished the material forming basis for the detention and even the ground of detention have not been read over to her in the language understood by her. 5. 4. It is contended that the detenue is an illiterate lady has not been furnished the material forming basis for the detention and even the ground of detention have not been read over to her in the language understood by her. 5. Though this submission is controverted by the detention recorded produced in the Court wherein it has been shown that the grounds of detention have been read over and explained to the detenue in Urdu/Kashmiri language and in token of acceptance her thumb impression is shown to have been taken. One ASI G.M. Parvaiz No.48/5 P/S Lal Bazar is shown to have read over and explained the contents of the grounds of detention to the detenue but no affidavit on his behalf has been filed. The position becomes more suspicious as it is shown that the grounds were read over in Urdu/ Kashmiri language. When the detenue is illiterate, how come grounds of detention have been read over to her in Urdu language. The certificate recorded appears to be a matter of routine. Absence of such affidavit diminishes the value of the said certificate which in turn means that the detenue has been deprived of making an effective representation against her detention which is a valuable right guaranteed in terms of Article 22(5) of the Constitution. 6. Non supply of the material forming basis for detention is serious lapse. In this connection it shall be quite relevant to quote observation as made by the Honble Apex Court in the judgment reported in 1999(2) SCC 413: "The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the mater and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 7. On the question of non supply of the material in the language the detenue understands, the detention order becomes illegal. It shall be again relevant to quote as to what has been observed by the Honble Apex Court in the case of Smt. Shalini Soni V/S Union of India (AIR 1981 SC 431). On the question of non supply of the material in the language the detenue understands, the detention order becomes illegal. It shall be again relevant to quote as to what has been observed by the Honble Apex Court in the case of Smt. Shalini Soni V/S Union of India (AIR 1981 SC 431). "....An opportunity to make a representation against the order of detention necessarily implies that the detenue is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenue is to be informed not mere, as we said of the interferences of fact but of all the actual materials which have led to the interference of fact. If the detenue is not to be informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to the exerts in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Article 22(5) do not mean mere factual interferences but mean factual interference plus factual material which led to such factual interference. The "grounds" must be self sufficient and self explanatory. In our view copies of documents to which reference is made in the "grounds" must be supplied to the detenue as part of the grounds." 8. It is admitted fact that the detenue in connection with case FIR No.27/2007 P/S Lal Bazar for the commission of offence punishable under Section 20/28 NDPS Act was in custody. It is not shown as to whether in connection with said case any motion for bail has been moved or not. Furthermore it is quite surprising that the grounds of detention bears No.DivCom/Dev-247-1/776 dated 4.7,2008 when order of detention bears No.DivCom-K/247-1/2008 dated 3.7.2008 which means that the grounds of detention have been prepared after passing order of detention, which in turn shows non application of mind. That apart, detenue by now has been in preventive detention for about 11 months, therefore, mitigation of circumstances also exist. 9. For all what has been stated above, the order of detention bearing INIo.DivCom-"K"/247-I/2008 dated 3.7.2008 is unsustainable, as such, quashed. Detenue be released forthwith provided she is not required in connection with any other case. Detention record be returned to the counsel for the respondents. Disposed of as above.