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2009 DIGILAW 34 (JK)

Gulzar Ahmed Palla v. State of J&K

2009-02-04

MOHAMMAD YAQOOB MIR

body2009
JUDGMENT : Mohammad Yaqoob Mir, J.:- 1. Legality of the detention order No. 1/DMK/PSA/08 dated 23.06.2008 passed by respondent No. 2, District Magistrate, Kulgam is under challenge. The first contention projected for quashment is that the detenu namely Gulzar Ahmed Palla S/o. Late Mohammad Akram Palla R/o Qaimoh Batapora Tehsil and District Kulgam has been arrested on 13.05.2008 in connection with FIR No. 07/2000 for commission of offence punishable under section 212 RPC, 7/25 of Indian Arms Act, registered with Police Station, CIK, Srinagar but had been admitted to bail on 04.06.2008. In the grounds of detention, detenu is stated to have been in custody, it is also mentioned that the relatives of the detenu ha/e applied for bail and in case of release within the short period detenu may again indulge in the activities prejudicial to the security of State. The order of detention is dated 23.06.2008 when the bail has been granted on 04.06.2008 which clearly indicates as to how the detaining authority has applied its mind. Either entire material has not been placed before the detaining authority or detaining authority has not applied its mind as is gatherable from Para - 8 of the grounds of detention. 2. The similar position has been dealt with by the Hon’ble Apex Court. It is quite relevant to quote Para - 8 of the judgment (Anant Sakharam Raut v. State of Maharashtra and others) reported in AIR 1987, SC Page 137 quoted herein below. “We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith.” 3. The next contention as raised is that the detenu is an illiterate person, he has not been furnished the material forming basis of the detention order, elaborating this contention, it is contended that detenu being an illiterate should have been provided the copy of material in the language which he understood i.e. translation copy should have been provided to him. The next contention as raised is that the detenu is an illiterate person, he has not been furnished the material forming basis of the detention order, elaborating this contention, it is contended that detenu being an illiterate should have been provided the copy of material in the language which he understood i.e. translation copy should have been provided to him. The submission is forceful when the detenu, admittedly, is an illiterate, he should have been provided the material in a translated form so as to enable him to make effective and purposeful representation as permissible under section 13 of Public Safety Act. Non supply thereof renders the detention order illegal being violative of the rights guaranteed under Article 22(5) of Constitution of India. In this connection, it is apt to quote the observation as made by Apex Court in the judgment (Powanammal v. State of T. N and another) reported in 1999 (2) SCC, Page 413. “The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu . 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.” 4. The only conclusion as can be drawn is that the order of detention bearing No. 1/DMK/PSA/08 dated 23.06.2008 has not been passed in consonance with law, so is quashed. detenu namely Gulzar Ahmed Palla S/o. Late Mohammad Akram Palla R/o Qaimoh Batapora Tehsil and District Kulgam be released forthwith, if not required in connection with any other case. Detention record be returned to the appearing counsel for respondents. The petition accordingly disposed of.