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2010 DIGILAW 594 (JK)

Madan Lal alias Madhi v. State

2010-12-03

J.P.Singh

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1. Madan Lal alias Madhi’s detention, ordered vide District Magistrate, Reasi’s No. PSA/2009/12 dated 04.01.2010 has been questioned by his learned counsel Mr. Mohd. Shaqir Hussain, on the following grounds:- (i) The Detenue, who had studied only upto the third standard, was unable to exercise his fundamental right to make effective Representation to the Government against his detention, in that, the grounds of detention drawn in English Language, were not read over and explained to him in Dogri Language, which alone, he would understand; (ii) Rather than recording his own satisfaction and drawing the grounds in support thereof warranting petitioner’s detention in Preventive Custody, the District Magistrate had acted on the grounds supplied to him by the Senior Superintendent of Police, Reasi and thus, acted in a mechanical manner contrary to the requirements of law contemplated by Section 8 of the Jammu and Kashmir Public Safety Act, 1978, thereby rendering the detention illegal; (iii) That the activities, on the basis whereof, the detenu was detained, do not fall within the definition of the expression "Maintenance of Public Order" as explained in Section 8(3)(b) of the Jammu and Kashmir Public Safety Act, 1978, the detention in Preventive Custody was, thus, unwarranted. 2. Supporting the detention, the learned State counsel submitted that the detenu has not been prejudiced in any manner, whatsoever, in that, the Police Dossier, containing the Grounds of Detention had been read over and explained to him in the language he understood and there was, therefore, no violation of any of the rights of the detenu. The activities of the detenu in indulging in Smuggling of liquor in the Holy Town of Katra, were likely to disturb peace and tranquility of the area and so the activities would fall within the definition of the Public Order, as explained in Section 8 of the Act. 3. I have considered the submissions of learned counsel for the parties and perused the Detention Records as also the provisions of Section 8 of the Jammu and Kashmir Public Safety Act, 1978. 4. The Detention Records and the Affidavit filed by the learned District Magistrate do not meet the detenu’s specific plea that he knew only Dogri Language and would not, thus, understand the Grounds of Detention. 5. The Detention Records do not indicate that the grounds of Detention were read over and explained to the detenu in Dogri Language. 4. The Detention Records and the Affidavit filed by the learned District Magistrate do not meet the detenu’s specific plea that he knew only Dogri Language and would not, thus, understand the Grounds of Detention. 5. The Detention Records do not indicate that the grounds of Detention were read over and explained to the detenu in Dogri Language. On the contrary, some of the documents, forming part of the Detention Records reveal that the Grounds of Detention were explained to the detenu in Urdu/Kashmiri Language(s), whereas the other documents indicate reading over and explaining of the Grounds of Detention in Urdu/Hindu Language(s). 6. There being no dispute on facts that the detenu had read only upto third standard, the respondents were required to place on records the Affidavit of the person, who had read over and explained the Grounds of Detention to him indicating the language, in which these had been so explained to him. 7. To facilitate exercise of right under Article 22(5) of the Constitution of India to make effective Representation to the Government against detention, the detenu is required to be supplied the Grounds of Detention in the Language, which he would understand, in that, no effective Representation, in terms of Section 22(5) of the Constitution of India, may be contemplated, unless the detenu would know exactly about the material that had weighed with the Detaining Authority in drawing the grounds of detention, and the grounds on which requisite satisfaction had been recorded for his detention, for responding thereto. 8. In these circumstances, when the Detention Records do not reveal the exact language in which the Grounds of Detention were read over and explained to the detenu and the respondents had failed to supply him the Grounds of Detention in the language, he understood, it becomes difficult to uphold the detention, which violates the provisions of Article 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act, 1978. 9. That apart, perusal of the Grounds of Detention indicate that the learned District Magistrate has neither reflected his own satisfaction nor drawn his own grounds in support thereof indicating that he was satisfied that the detenu was acting in any manner prejudicial to the maintenance of Public Order, which activities were required to be prevented for maintenance of Public Order. 10. 10. Rather than, acting on the facts appearing in the Police Dossier and other records, the District Magistrate has acted in a mechanical fashion, on the Grounds of Detention supplied to him by the Senior Superintendent of Police, Reasi, which course is not contemplated by the provisions of Section 8 of the Jammu and Kashmir Public Safety Act, in terms whereof, he was required to record his own satisfaction on the basis of material available with him. This is so because the exercise of power under Section 8 of the Public Safety Act, which has the consequence of curtailing the liberty of an individual, is required to be exercised cautiously and on sufficient material justifying recording of requisite satisfaction, in terms of the Section 8 of the Act and not in a routine manner. 11. Even otherwise a reading of the provisions of Section 8(3)(b) of the Act reveals that the activities attributed to the petitioner, inter alia, of indulging in Smuggling of liquor do not attract any one or the other Public Safety Act, to term his activities, as prejudicial to the maintenance of Public Order. Learned State Counsel’s submission that the detenu’s activities fall within the definition of the expression "Maintenance of Public Order" is thus found untenable. 12. For all what has been said above, Madan Lal’s detention in Preventive Custody cannot be sustained and is liable to be quashed. 13. Accordingly, allowing this Petition, District Magistrate, Reasi’s order No.PSA/2009/12 dated 04.01.2010 is quashed. 14. A direction shall therefore issue to the respondents to release the petitioner from custody forthwith, if not required in any other case. 15. Detention Records to be returned to the State counsel.