1. This Letters Patent Appeal has been filed against the judgment of the learned Single Judge dated 05.10.2012 passed in Habeas Corpus Petition (HCP) no. 80/2012, dismissing the writ petition. In order to appreciate the grounds pleaded in the appeal, it becomes imperative to give a brief resume of the facts. 2. The detenu, Imtiyaz Ahmad Akhoon son of Ali Mohammad Akhoon resi dent of Gulshan Bagh, Lal Bazar, Srinagar, was arrested on 04.01.2012 in connection with case FIR no. 01/2012 registered at Police Station, Lal Bazar under Sections 8/20-21 Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances-Act, 1988. While being in judicial custody in connection with the aforesaid criminal case in the Central Jail, Srinagar, the Divisional Commissioner, Srinagar, in exercise of powers vested in him under Section 3 of the aforesaid Act, passed Order no. DIVCOM-"K"/08/2012 dated 30.04.2012 directing detention of the detainee. 3. The detenu, through his wife, challenged the aforesaid order through the medium of HCP no. 80/2012, inter alia, on the grounds that the order of detention suffers from non-application of mind; that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso in view of the fact that as on the date of passing of the aforesaid order of detention, the detenue was already in custody; that the detenu has not been provided the material forming basis of the detention order in the translated form so as to enable him, being an illiterate person, to make an effective representation against his detention; that the grounds of detention have not been explained to the detenu in the language which he understands; and that the detention order has not been executed in time, which renders the detention illegal. 4. Upon notice being issued, the Divisional Commissioner, Kashmir, i.e., the detaining authority filed his counter affidavit contesting the petition and contro verting the grounds taken therein. In paragraph 7 of the counter-affidavit, it is specifically stated that "the detenu was provided grounds of detention alongwith a communication No. Divcom/RA-Detn/(15)/2012 dated 30.4.2012 whereunder he was informed of his right of representation". Again, in paragraph 10 thereof, it is clearly stated that "the detenu has been provided material in the shape of grounds of detention, which form basis for his detention.
Again, in paragraph 10 thereof, it is clearly stated that "the detenu has been provided material in the shape of grounds of detention, which form basis for his detention. The contents of detention warrant as well as that of grounds of detention have been read over and explained to the detenu not only in Urdu language, but also in Kashmiri language which happens to be his own language". 5. The learned Single Judge, upon hearing the learned counsel for the parties and perusing the detention record, dismissed the Habeas Corpus petition. Hence the present appeal. 6. We have heard learned counsel for the appellant as well as the learned Deputy Advocate General, perused the writ records as well as the original detention record produced before us and given our thoughtful consideration to the matter. 7. It is settled law that preventive detention is an evil, but a necessary evil. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arrived at the requisite subjective satisfaction to pass the detention order. In the event such grounds of detention and materials are not supplied to the detenue, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. We may refer to one such judgment of the Supreme Court herein.
Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. We may refer to one such judgment of the Supreme Court herein. In Ibrahim Alunad Batti v. State of Gujarat, (1982) 3 SCC 440 , the Apex Court, relying on its earlier judgments in Khudiram Das v. State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 ; Shalini Soni v. Union of India, 1980) 4 SCC 544; Lallubhai Jogibhai Patel v. Union of India (1981) 2 SCC 427 ; Kamla Kanyalal Khushalani v. State of Maharashtra, (1981) 1 SCC 748 and Sunil Dutt v. Union of India, (1982) 3 SCC 405 , in paragraph 10 of the judgment, has held as under: "Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenue alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things Would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution". In Khudiram case (supra), the Apex Court has explained what is meant by 'grounds on which the order is made' in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).
In Khudiram case (supra), the Apex Court has explained what is meant by 'grounds on which the order is made' in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). In Smt. Icchu Devi Case (supra), the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised. In Lallubhai Jogibhai Patel case (supra), the detenu did not know English, while" the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu, but the Apex Court held that, that was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the, detenue. The Apex Court in that case observed as under: " 'Communicate' is a strong word which means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenue in writing in a language which he understands. The whole purpose of communicating the 'grounds' to the detenue is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenue and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed." 8. Examining the present case on the touch stone of the above settled position of law, the detaining authority in the first two paragraphs of the detention order has indicated that he had perused the material record, such as dossier and other connected documents. The grounds of detention make reference to FIR No.01/2012.
Examining the present case on the touch stone of the above settled position of law, the detaining authority in the first two paragraphs of the detention order has indicated that he had perused the material record, such as dossier and other connected documents. The grounds of detention make reference to FIR No.01/2012. There are specific averments made in the petition that the detenu was not supplied the materials relied upon by the detaining authority. In the counter affidavit, filed by the detaining author ity, as referred to hereinabove, it is stated that the detenue was provided material in the shape of grounds of detention. No other material/docu ments, as referred to in the order of detention and the grounds, are shown to have been supplied to the detenu in the counter affidavit. Further, the grounds shown to have been served on and supplied to the detenu are in English language. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, he having been prevented from making an effective and purposeful representation against the order of detention. 9. The learned Single Judge in relation to the point in question, in paragraph 8 at page 4 of the judgment has held as under: "...The endorsement on the reverse of the detention order duly attested by the Assistant Superintendent, Central Jail, Srinagar, makes it sufficiently clear that the detention order and the grounds of detention as also other material were read over and explained to the detenu. The copies of the detention order, grounds of detention, dossier, FIRs and seizure memo were also handed over to the detenu to enable him to make representation. The receipt executed by the detenue indicates that in all eight leaves were handed over to the detenue, copies whereof are placed on the detention record. These include the copy of the detention order, copy of the grounds of detention, copy of the dossier, copy of FSL report, copy of FIR 01/12,-copy of the seizure memo". The counter affidavit filed by the detaining authority, as indicated herein-above, does not state so. In law, primarily the averments made in a petition on affidavit are required to be rebutted or controverted by way of a counter affidavit. The counter affidavit in the present case does not rebut or contro vert the specific averments made by the petitioner in the writ petition.
In law, primarily the averments made in a petition on affidavit are required to be rebutted or controverted by way of a counter affidavit. The counter affidavit in the present case does not rebut or contro vert the specific averments made by the petitioner in the writ petition. On the other hand, it is clearly stated therein that materials in the shape of grounds of detention were supplied to the detenu. 10. We have also perused the original detention records. The endorsement made on the reverse of the detention order in English language, though makes a mention that the grounds of detention/PSA warrant/Dossier/FIR copy and notice of detention have been handed over to the detenue on proper receipt, but there is no such receipt of the detenu contained therein and such statement made in the endorsement obviously is in total contra diction to the specific averments made in the counter affidavit. Further, the endorsement states that "the specimen signature of the detenu is taken below at mark 'A'. Where is the requirement or necessity of taking a specimen signature of a detenu in lieu of acknowledgement or receipt of documents is not understandable. In any case, a specimen signature would not constitute an acknowledgment in token of receipt of documents. The act of obtaining the signature of the detenu, if at all genuine, under the garb of 'specimen signature', by itself casts an aspersion on the genuineness of the endorsement as a whole. Then, the endorsement speaks of some PSA warrant. It is nobody's case that the detenue was detained under the provisions of the Public Safety Act. The grounds of detention whole pur pose of communicating the 'grounds' to the detenue is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenue and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed." 8. Examining the present case on the touch stone of the above settled position of law, the detaining authority in the first two paragraphs of the detention order has indicated that he had perused the material record, such as dossier and other connected documents. The grounds of detention make reference to FIR No.01/2012.
Examining the present case on the touch stone of the above settled position of law, the detaining authority in the first two paragraphs of the detention order has indicated that he had perused the material record, such as dossier and other connected documents. The grounds of detention make reference to FIR No.01/2012. There are specific averments made in the petition that the detenu was not supplied the materials relied upon by the detaining authority. In the counter affidavit, filed by the detaining authority, as referred to hereinabove, it is stated that the detenue was provided material in the shape of grounds of detention. No other material/documents, as referred to in the order of detention and the grounds, are shown to have been supplied to the detenu in the counter affidavit. Further, the grounds shown to have been served on and supplied to the detenu are in English language. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, he having been prevented from making an effective and purposeful representation against the order of detention. 9. The learned Single Judge, in relation to the point in question, in paragraph 8 at page 4 of the judgment has held as under: "...The endorsement on the reverse of the detention order duly attested by the Assistant Superintendent, Central Jail, Srinagar, makes it sufficiently clear that the detention order and the grounds of detention as also other material were read over and explained to the detenu. The copies of the detention order, grounds of detention, dossier, FIRs and seizure memo were also handed over to the detenu to enable him to make representation. The receipt executed by the detenue indicates that in all eight leaves were handed over to the detenue, copies whereof are placed on the detention record. These include the copy of the detention order, copy of the grounds of detention, copy of the dossier, copy of FSL report, copy of FIR 01/12, copy of the seizure memo". The counter affidavit filed by the detaining authority, as indicated herein-above, does not state so. In law, primarily the averments made in a petition on affidavit are required to be rebutted or controverted by way of a counter affidavit. The counter affidavit in the present case does not rebut or controvert the specific averments made by the petitioner in the writ petition.
In law, primarily the averments made in a petition on affidavit are required to be rebutted or controverted by way of a counter affidavit. The counter affidavit in the present case does not rebut or controvert the specific averments made by the petitioner in the writ petition. On the other hand, it is clearly stated therein that materials in the shape of grounds of detention were supplied to the detenu. 10. We have also perused the original detention records. The endorsement made on the reverse of the detention order in English language, though makes a mention that the grounds of detention/PSA warrant/Dossier/FIR copy and notice of detention have been handed over to the detenue on proper receipt, but there is no such receipt of the detenu contained therein and such statement made in the endorsement obviously is in total contradiction to the specific averments made in the counter affidavit. Further, the endorsement states that "the specimen signature of the detenu is taken below at mark 'A'. Where is the requirement or necessity of taking a specimen signature of a detenu in lieu of acknowledgement or receipt of documents is not understandable. In any case, a specimen signature would not constitute an acknowledgment in token of receipt of documents. The act of obtaining the signature of the detenu, if at all genuine, under the garb of 'specimen signature', by itself casts an aspersion on the genuineness of the endorse ment as a whole. Then, the endorsement speaks of some PSA warrant. It is nobody's case that the detenue was detained under the provisions of the Public Safety Act. The grounds of detention clearly state that the detenue is an illiterate person; whereas the 'specimen signature' attributed to the detenu beneath the endorsement is in English. There is another photocopied, formatted document filled in by pen on record which, inter alia, states that the contents of the detention warrant/grounds of detention have been read over and explained to the detenu in the languages Kashmiri/Urdu/English, which he understood fully. In which language the grounds were exactly read over and explained to the detenue is not made clear. The matter seems to have been dealt with in a slipshod manner only to lend some semblance of compliance with the requirements of law. Further, this document contains the initials of the first name of the detenu in English language.
In which language the grounds were exactly read over and explained to the detenue is not made clear. The matter seems to have been dealt with in a slipshod manner only to lend some semblance of compliance with the requirements of law. Further, this document contains the initials of the first name of the detenu in English language. It is inconceivable that an illiterate person would affix his signatures in English. All the above factors cast a serious doubt on the fulfilment of the constitutional require ments. Inferentially, therefore, the averment made in the petition and vehemently argued before us, that the materials relied upon by the detaining authority have not actually been supplied to the detenu, and, consequently, he was denied the oppor tunity of making the representation against his detention order is subs tantiated. The above vital factors, having a material bearing on the point in issue, seem to have missed the attention of the learned Single Judge. Be that as it may, the detention order in such circumstances cannot sustain the scrutiny of law and is, thus, vitiated. 11. Though the learned counsel for the appellant has argued before us on all other grounds reproduced in the beginning paragraphs of this judgment by us, but, having already recorded our view hereinabove, we deem it unnecessary to deal with all those grounds. 12. Given the averments made in the counter affidavit, the factual scenario depicted by the original r 'cords and the law established, the learned Deputy Advocated General could not convince us to take a view different from what we have recorded above. 13. The net result is that this appeal deserves to be allowed. We hereby do so. Accordingly, allowing this appeal, we set aside the judgment and order dated 05.10.2012 passed by the learned Single Judge in Habeas Corpus Petition no. 80/2012 and consequently allow the said writ petition, too. Resultantly, the deten tion order no, DIVCOM-"K"/08/2012 dated 30.04.2012 passed by Divisional Com missioner, Kashmir, is quashed and the detenu, namely, Imtiyaz Ahmad Akhoon son of Ali Mohammad Akhoon resident of Gulshan Bagh, Lal Bazar, Srinagar, is directed to be set free from the impugned detention forthwith.