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2018 DIGILAW 288 (JK)

Shabir-ul-Islam Ganie v. State of J&K

2018-05-10

ALI MOHAMMAD MAGREY, MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Instant appeal under Clause 12 of the Letters Patent is directed against the judgment dated 31st January, 2018, passed by learned Single Judge, dismissing HCP No.257/2017. 2. Noticing the activities of the appellant (detenue) prejudicial to the security of the State, District Magistrate, Baramulla, vide order No.69/DMB/ PSA/2017 dated 17.07.2017, ordered his detention, in pursuance whereof detenue has been taken into custody. 3. Where a person is taken into preventive custody so as to deter him from indulging, in any manner, prejudicial to the security of the State, the initial period of detention has to be only six months extendable up to two years. The first spell of six months has expired in the month of January, 2018.The second spell of six months, as has been extended, has to expire in the month of July, 2018. By now detenue is in custody for more than nine months. The said detention order was challenged by medium of HCP No.257/2017 which has been dismissed vide judgment impugned dated 31.01.2018. 4. The first contention of learned counsel for the appellant is that he had pleaded before the learned Writ Court that the detenue, in fact, was arrested on 12.02.2017 and in the counter affidavit said position was not refuted but still contention has been ignored. 5. The contention as raised is supported by the records i.e. in para 2 of HCPNo.257/2017, same fact had been specifically pleaded and in the counter affidavit filed by the State same was not denied. When it is so, the effect is obvious i.e. the detaining authority has not examined the entire records for deriving subjective satisfaction before ordering detention of the detenue. 6. Next contention is that in connection with case FIR No.13/2017 of P/S Kreeri, detenue was shown to have been arrested. The detenue though was granted bail but was never released. That apart, grant of bail has not been challenged by the respondents. This aspect of the case too has not been taken note of. 7. Another contention of learned counsel for the appellant is that the dossier and other material referred to in the grounds of detention has not been supplied to the detenue disabling him from making an effective representation. 8. This aspect of the case too has not been taken note of. 7. Another contention of learned counsel for the appellant is that the dossier and other material referred to in the grounds of detention has not been supplied to the detenue disabling him from making an effective representation. 8. Learned Writ Court has noticed that the material has been supplied to the detenue and one Bashir Ahmad ASI, has read over and explained the contents of order of detention and the grounds of detention to the detenue in Kashmiri language which he understood but the important aspect has escaped the attention of the learned Writ Court i.e. Bashir Ahmad ASI, who is alleged to have read over and explained the grounds of detention to the detenue and is also alleged to have supplied the material to the detenue, has not filed any affidavit in support of that position. 9. Mere contention in the reply that the grounds of detention were explained to the detenue without affidavit of the official who had served the grounds of detention cannot be believed and relied upon. Para 5 of the judgment rendered in the case of “Mohammad Shaban Chopan Vs. State and another” reported in 2003 (II) 455 is quoted here-under :- “5. Thus the stand taken by the detaining authority is that ASI Gh. Ahmad explained the grounds of detention to the detenue in Urdu and Kashmiri. However, affidavit of said ASI has not been filed. I have perused the record made available by Learned Counsel for the respondents. In the record there is a photocopy of C/Certificate of said ASI to that effect when the Learned Counsel was asked to produce the original, he expressed his inability to do so. The un-authenticated photocopy does not deserve to be noticed. Therefore, neither there is affidavit of said ASI nor any reliable document available on record to substantiate the fact that ASI Ghulam Ahmad had actually explained the grounds of detention to the detenue in his own language. Bare statement of the detaining authority in this behalf is of no consequence as has been held by the Hon’ble Supreme Court in the above quoted authority. Bare statement of the detaining authority in this behalf is of no consequence as has been held by the Hon’ble Supreme Court in the above quoted authority. The detention order thus cannot be sustained being violative of mandate of law on the aforesaid ground alone.” (1) Para 20 of judgment rendered in the case of Lallubhai Jogibhai Patel vs Union of India & Ors., reported in 1981 AIR 728 is advantageous to be quoted : “20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu 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. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan v. State of Maharashtra and Haribandhu Dass. v. District Magistrate ( AIR 1969 SC 43 ) (ibid).” 10. Another contention of learned counsel for the appellant is that the order of detention suffers from non-application of mind because the detaining authority in the order has reflected that ‘on the basis of material produced by the Sr. Superintendent of Police, such as dossier and other connected documents viz copy of FIR No.13/2017, seizure memos,’ he has derived satisfaction. Nothing has been said about formulation of grounds by the detaining authority, which is a sine qua non for deriving subjective satisfaction. 11. Superintendent of Police, such as dossier and other connected documents viz copy of FIR No.13/2017, seizure memos,’ he has derived satisfaction. Nothing has been said about formulation of grounds by the detaining authority, which is a sine qua non for deriving subjective satisfaction. 11. Perusal of the detention record reveals that in compliance to the order of detention, ASI Bashir Ahmad No.38/PL, EXK No.811245 of DPL Baramulla has read over and explained the grounds of detention to the detenue in Kashmiri language which he understands fully. A notice of detention and copy of detention warrant (01 leaf), grounds of detention (02 leaves), copies of FIR No.13/2017 (04 leaves), bail application (02 leaves) and bail order (01 leaf) (total 11 leaves) are shown to have been supplied to the detenue. Substantial compliance is negated in view of non-filing of an affidavit by said ASI Bashir Ahmad. 12. Next it is contended that the detenue has been disabled from making an effective representation by not supplying him the translated copies of the ground of detention which are in English language besides being in a hyper technical language which the detenue is not in a position to understand being illiterate. 13. Submission has a prevailing force as the record as produced do not suggest that the translated copies of grounds of detention have been supplied to the detenue, therefore, infringement of right guaranteed under Article 22(5) of the Constitution. The service of the grounds of detention on the detenue is a very precious constitutional right and the object behind the same is to enable the detenue to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenue unless he is in a position to understand the same. In my view I am fortified by the judgment rendered by the Hon’ble Apex Court in the case “Chaju Ram Vs. The State of Jammu & Kashmir” reported in AIR 1971 SC 263 . It will be an empty formality to supply the grounds of detention to the detenue unless he is in a position to understand the same. In my view I am fortified by the judgment rendered by the Hon’ble Apex Court in the case “Chaju Ram Vs. The State of Jammu & Kashmir” reported in AIR 1971 SC 263 . Following portion from para 9 of the judgment shall be quite apposite to be quoted : “….The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenue to make a representation which right is frustrated by handling over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.” 14. It shall also be quite apposite to quote following portions from paras 3 and 5 of the judgment rendered by the Hon’ble Apex Court in the case captioned “Smt. Raziya Umar Bakshi Vs. It shall also be quite apposite to quote following portions from paras 3 and 5 of 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 ) : “3………The service of the grounds of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie.” 5……..in case 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 detenue, 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 detenue in the language he understands.” 15. In “Powanammal Vs. State of T. N. and another” reported in (1999) 2 SCC 413 , Hon’ble Supreme Court has observed as under : “…….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 right of being communicated the grounds and of being afforded the opportunity of making a representation against the order.” 16. A person who dares to threaten the security of the State has to be dealt with iron hand but at the same time rights guaranteed by the Constitution have to be respected. Preventive detention, in effect, is an invasion to personal liberty which infringe the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, shall not be on the ipse dixit of the detaining authority. Preventive detention wherever permissible shall adhere to the procedural safeguards. Infraction of safeguards renders the order of detention unsustainable. Preventive detention, in view of exception to Article 21, has to be reasonable, shall not be on the ipse dixit of the detaining authority. Preventive detention wherever permissible shall adhere to the procedural safeguards. Infraction of safeguards renders the order of detention unsustainable. The Hon’ble Supreme Court in catena of judgments has made it clear as to what is the value of the ‘constitutional safeguard’ and as to what is the value of right to liberty guaranteed under Article 21 of the Constitution of India. 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 Anr., reported in (2011) 5 SCC 244 : “37. As observed in Abdul Latif Abdul Wahab Sheikh v. 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 v. 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”. 17. Keeping in view the hallmark of the cherished right to liberty in keeping with the object of Article 21 of the Constitution of India, while exercising power to order preventive detention, various procedural and other safeguards available have to be respected and adhered to. It is the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. It is the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing. 18. For the reasons and law as stated hereinabove, appeal is allowed, judgment impugned is set aside. As a sequel thereto, detention order bearing No.69/DMB/PSA/2017 dated 17.07.2017 shall stand quashed. Detenue is directed to be released provided he is not required in connection with any other case. 19. Appeal allowed. 20. Detention records as produced be returned to the learned counsel for the respondents.