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2010 DIGILAW 654 (JK)

Abdul Majid Mir v. State

2010-12-31

MANSOOR AHMAD MIR

body2010
JUDGMENT (1) THE petitioner-Ghulam Hassan Mir, the father of Abdul Majid Mir R/o Darakashi, Tehsil Tangmarg, District Baramulla, has called in question the detention order No. 79/DMB/PSA/10 dated 27-3- 2010 passed by the District Magistrate-Respondent No. 2, whereby the subject came to be detained under the provisions of the Jammu and Kashmir Public Safety Act, for short "Act" on the grounds taken in the writ petition. (2) PRECISELY, the case of the petitioner is that the detenu was arrested in false and frivolous FIR No. 22/2010 under Sections 379, RPC, 6, Forest Act, Police Station Tangmarg and was detained in terms of impugned detention order which is vague, baseless and imaginary one. It is further averred that the subject was not supplied with copies of grounds of detention and detention order, however, he has managed photostat copies of the same from the office of respondent No. 2 unofficially. It is contended further that the subject is illiterate and does not know the English language in which the grounds of detention were couched, and respondents were under legal obligation to provide translated script of the said documents, which have not been done at all. Respondents have filed their reply to the writ petition and resisted the same on the grounds taken in the memo of counter/reply. Respondents have specifically averred that the detenue and his associates are involved in forest smuggling and have caused severe damage to the forests in Tangmarg area. He and his associates have cut down the green trees of different species of the forests and converted them into logs and thereafter facilitated its transportation by medium of vehicles. He and his associates were apprehended on 11-3-2010 when they were transporting the illicit timber from "Darakashi Forests" in a truck bearing registration No. JK02F 8841 and Sumo bearing registration No. JKOIG 0841 loaded with Deodar/Kail timber valuing Rs. 1,53,740.00. The said timber was seized/confiscated by Police Station Tangmarg and FIR No. 20/2010 under Sections 379/RPC, 6, Forest Act came to be registered. Respondents have specifically averred that the subject was also involved in cases FIR Nos. 32/2007, 01/2009 and 65/ 2009 under Sections 379, RPC, 6, Forest Act, Police Station, Tangmarg and after conducting the investigation final police reports have been presented in the complect Court of jurisdiction. Respondents have specifically averred that the subject was also involved in cases FIR Nos. 32/2007, 01/2009 and 65/ 2009 under Sections 379, RPC, 6, Forest Act, Police Station, Tangmarg and after conducting the investigation final police reports have been presented in the complect Court of jurisdiction. (3) IT is contended that the contents of the warrant and grounds of detention were read over to the detenue, he was made to understand, and also informed of his right to make a representation to the Government against his detention. He has in token affixed the signature on the documents but failed to make any representation against his detention. The grounds of detention are precise, relevant and disclose the need of the hour for detaining the detenue. (4) LEARNED counsel for the petitioner was pointedly asked as to whether he wants to file any rejoinder but he has chosen not to file the same and right to file the same stands closed in terms of order dated 28-12-2010. Police prepared dossier on the ground that the activities of the detenu are highly prejudicial and detrimental to the ecology, economic, forest wealth and environment of the State, and recommended his preventive detention. Respondent No. 2-District Magistrate perused the dossier, prepared the grounds of detention and issued detention order. (5) PERUSAL of the record and pleadings do disclose that the detaining authority has complied with the mandate of law and by no stretch of imagination it can be said that the detaining authority has committed any breach which would warrant interference by this Court. The subject has not denied lodging of FIR Nos. 32/2007,01/2009 and 65/2009 under Sections 379, RPC, 6, Forest Act, Police Station, Tangmarg against him and filing police reports before the competent Court of jurisdiction. Thus, he has virtually accepted that the cases are pending against him. (6) THE subject has averred in the writ petition that a false and frivolous FIR No. 20/ 2010 under Sections 379 RPC, 6, Forest Act was registered by the police. It is a matter to be gone into by the trial Court but fact of the matter is that FIR stands lodged against him and offending vehicles Truck and Sumo loaded with Deodar/Kail timber worth Rs. 1,53,740.00 were seized. Petitioner has specifically averred in paragraph (d) of grounds in the writ petition that the detenu is totally illiterate. It is a matter to be gone into by the trial Court but fact of the matter is that FIR stands lodged against him and offending vehicles Truck and Sumo loaded with Deodar/Kail timber worth Rs. 1,53,740.00 were seized. Petitioner has specifically averred in paragraph (d) of grounds in the writ petition that the detenu is totally illiterate. When a detenue is illiterate he cannot read the documents couched in English/Urdu/Kashmiri language, therefore, furnishing of translated script in the language he understands is immaterial. Respondents have specifically averred that they have read over the documents to him and made him to understand in the language known to the subject which is substantiated by the two photostat copies of the documents on record, one is written by Shamsher Singh, ASI who has handed over the detenue to the Superintendent District Jail Udhampur and has written in the said document that the contends of the detention order and grounds of detention were read over and explained to the detenue in his own language which he has fully understood and in token whereof he has affixed his signature by writing "Majeed". The said document is also signed by the Superintendent District jail Udhampur on 28th of March, 2010. Another document which is duly attested by the Superintendent District Jail, Udhampur do disclose that the contents of grounds of detention have been read and explained to the detenu in the language he understands. (7) THE detenue being illiterate issuance of translated script or documents is of no consequence, only the respondents have to make him to understand in the language known to him which they have done. Thus respondents have not observed the safeguards provided by the Act in breach. My this view is fortified by the judgments passed by the Division Bench of this Court reported in SLJ 2002 Vol. 2 page 479 and single Bench of this Court reported in SLJ 2003, Vol. 2 page 377. It is apt to reproduce relevant portion out of the Division Bench judgment, which reads : "11........Before learned single Judge, counter has been filed and it is explained in the counter that since the detenue is an illiterate person, he has been explained in detailed all the grounds of detention in the language he understood i.e. Kashmiri language by an Officer who is well versed with the Kashmiri Language. 12. 12. Considering the importance of the grounds of detention, we have called for the record and we perused the same. From the record it appears that the detenue has been explained the grounds of detention in Kashmiri language by the Superintendent of District Jail, Kathua who is Kashmiri gentleman and well versed with the Kashmiri language and the detenue has put his thumb impression on the receipt of the grounds of detention which have explained to him stating therein that the grounds of detention were read over and explained to him in Urdu/ Kashmiri which he understands fully. THE detenue also certifies that he has been informed to make representation to the Government against the detention, if he so desired." (8) IT is also pertinent to mention here that the detention order came to be passed on 27-3-2010 and as per the record came to be executed on 28-3-2010 that means on the same day the said documents came to be furnished to the detenue as per the record and reply filed by the respondents. In paragraph (5) of the writ petition, it is stated that the petitioner with hard efforts managed the photostat copies of grounds of detention and order of detention from the office of respondent No. 2 unofficially. How he has got these documents unofficially is not forthcoming and who was the officer who has provided him the documents is also not known, which suggests that these documents were furnished to the subject by the respondents and in order to file a writ petition he has made a 'U' turn. Why the petitioner has not questioned the detention order right from 28-3-2010 till 29-9-2010 is also not forthcoming. The Apex Court in a case titled State Legal Aid Committee v. State of J and K (2004 AIR SCW 6761) : (2005 Cri LJ 677) held that non-supply of documents vitiates the detention order. In that case, there was no material placed on record to substantiate that the grounds of detention and other documents relied upon were read over and explained to the detenue and was informed about to make an effective representation. In that case, there was no material placed on record to substantiate that the grounds of detention and other documents relied upon were read over and explained to the detenue and was informed about to make an effective representation. It is apt to reproduce paragraph 1 of the judgment, which reads : "..............Though, in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assessee and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit." (9) IN another case, the Apex Court in a judgment titled Smt. Raziya Umar Bakshi v. Union of INdia (AIR 1980 SC 1751) held that the respondents are under a legal obligation to indicate that the grounds of detention besides detention order and other material relied upon were explained to the, detenue and was made to understand. There must be the document on the record in support of the said stand. It is apt to reproduce relevant portion out of paragraph 5 of the judgment, which reads : "5. IN this view of the matter, the detention becomes invalid on this ground alone. IN would however like to observe that in cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, 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 detenu in the language which he understands. A bare denial 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." (10) APPLYING the ratio of the judgments supra and having glance on the discussions made hereinabove, the respondents have complied with the mandate and safeguards provided by the Act. Accordingly, this writ petition merits dismissal. I do so accordingly. Writ petition is dismissed. However, there will be no order as to costs. Petition dismissed.