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2018 DIGILAW 647 (JK)

Showkat Ahmad Mir v. State of J&K

2018-08-20

RASHID ALI DAR

body2018
JUDGMENT : 1. Challenge in this petition is to the order No.168/DMB/PSA/2018 dated 27.01.2018, passed by District Magistrate, Baramulla-respondent No.2 herein, whereby Showkat Ahmad Mir (hereinafter referred to as the detenue), has been taken into preventive detention and lodged in District Jail, Kathua. By now detenue is in preventive custody for more than seven months. 2. Firstly, learned counsel for the petitioner contended that the detenue has been disabled from making an effective representation by not supplying the material forming base of the grounds of detention and the consequent order of detention. 3. Submission has a prevailing force as the nothing has been brought on record to suggest that the material forming basis of the grounds detention has been supplied to the detenue, therefore, infringement of right guaranteed under Article 22(5) of the Constitution. The Hon’ble Apex Court in the judgment rendered in the case of “Sophia Gulam Mohd. Bham v. State of Maharashtra & ors” ( 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.” 4. In paras 27 and 28 of the judgment captioned Thahira Haris etc. etc. Vs. Government of Karnataka & Ors, reported in AIR 2009 Supreme Court 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. 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. 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. 5. Next it is contended by the learned counsel for the petitioner that the detenue has also 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. 6. The records, as produced by the learned counsel for the respondents, 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 . 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.” 7. It shall also be quite apposite to quote following portions para 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.” 8. 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.” 9. 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.” 9. The 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 this regard, 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. 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”. 10. For the stated reasons and the law laid down by the Hon’ble Apex Court, petition is allowed and impugned detention order bearing No.168/DMB/PSA/ 2018 dated 27.01.2018, is quashed. Detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case(s). 11. Detention records as produced are returned to the learned counsel for the respondents.