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2017 DIGILAW 171 (JK)

Waseem Ahmad War v. State of J&K

2017-04-05

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : 1. In pursuance to order No. 47-DMK/PSA of 2016 dated 05.10.2016, passed by District Magistrate, Kupwara, Waseem Ahmad War (hereinafter referred to as the detenue), has been taken into preventive custody, so has been lodged in Central Jail, Kotebalwal Jail, Jammu. By the medium of the instant petition, quashment of the same is sought. 2. Learned counsel for the petitioner highlighted various grounds while seeking quashment of the order impugned, the star ground is that the detenue has been disabled from making an effective representation by not supplying the material forming base for the grounds of detention and the consequent order of detention. Further added that the detenue is illiterate not able to understand English language. The grounds of detention are in English language besides being in a hyper technical language, therefore, detenue could not understand the same. 3. There is nothing on record to suggest that the material forming basis for detention and the translated copy of grounds of detention has been supplied to the detenue, therefore, infringement of right guaranteed under Article 22(5) of the Constitution. 4. The Hon’ble Apex Court in the judgment rendered in the case of Sophia Gulam Mohd. Bham vs. State of Maharashtra and Others, AIR 1999 SC 3051 , has held as under: “The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.” 5. In paras 27 and 28 of the judgment captioned Thahira Haris vs. Government of Karnataka and Others, AIR 2009 SC 2184 , Hon’ble Apex Court has held as under: “27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone. 28. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention. 6. It shall also be quite apposite to quote following para from the judgment rendered by the Hon’ble Apex Court in the case captioned Smt. Raziya Umar Bakshi vs. Union of India, AIR 1980 SC 1751 : “............In case of Hadibandhu Das vs. District Magistrate, Cuttak and Another, 1969 (1) SCR 227 , it was held that merely oral explanation of an order without supplying him a translation in a script or language which the detenu understood amounted to a denial of right of being communicated the grounds. In the instant case, it is not even alleged in the affidavit of Mr. Shah that any translation or translated script of the grounds was furnished to the detenu.” 7. In Nandoli Mohamed Rafeeq vs. Union of India and Others, (2004) 12 SCC 218 , Hon’ble Supreme Court held that the document was supplied to the detenue to facilitate his right to make effective representative against order of detention, the document being in language not known to him, his continued detention was violative of Article 22(5) as he has been deprived of his right to make an effective representation. 8. Next contention is that the order of detention has not been furnished to the detenue which renders the order of detention as bad. This Court in two judgments captioned Abdul Rashid Saraf vs. State and Another, S.L.J. 1988 J&K 346 and Ghulam Muhammad Hajam vs. State of J&K, S.L.J. 1991 J&K 364 has held that the supply of detention order to the detenue is mandatory, failure renders the detention illegal. 9. This Court in two judgments captioned Abdul Rashid Saraf vs. State and Another, S.L.J. 1988 J&K 346 and Ghulam Muhammad Hajam vs. State of J&K, S.L.J. 1991 J&K 364 has held that the supply of detention order to the detenue is mandatory, failure renders the detention illegal. 9. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States' security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Smt. Ichhu Devi Choraria vs. Union of India and Others, AIR 1980 SC 1983 , this judicial commitment was highlighted in the following words: "The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade." "This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirement of the law and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention." 10. Personal liberty protected under Article 21 of the Constitution of India is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution, which is an exception to Article 21 of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person. Such power has to be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this connection, it shall be quite relevant to quote paras 37 and 38 of the judgment rendered by a Bench of three Hon’ble Judges of the Hon’ble Apex Court in case captioned Rekha vs. State of Tamil Nadu and Another, (2011) 5 SCC 244 : “37. As observed in Abdul Latif Abdul Wahab Sheikh vs. B.K. Jha vide SCC para 5: (SCC p.27) “5....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.” As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee vs. McGrath: (US p. 179) “...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law.” 38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society’s assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience.” 11. In view of the facts of the present case and the law laid down by the Hon’ble Apex Court as quoted hereinabove, the order of detention impugned is unsustainable, as such, quashed. Detenue is directed to be released from the preventive detention forthwith provided he is not required in connection with any other case. 12. Disposed of as above.