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2018 DIGILAW 790 (JK)

Farooq Ahmad Dar v. State of J&K

2018-10-12

ALOK ARADHE, GITA MITTAL

body2018
JUDGMENT : Gita Mittal, J. With the consent of learned counsel for the parties, this appeal is taken up for final disposal. 2. The appellant before us has assailed the judgment dated 17th May 2018, whereby, HCP No. 19/2018 filed by him stands dismissed. By way of this writ petition, the appellant had assailed the order bearing DIVCOM-K/62/2017 dated 21.11.2017, placing the appellant under preventive detention and ordering his confinement in District Jail Anantnag. We are informed by learned counsel for the appellant that the appellant stands lodged in jail since 30th September 2017 when he was arrested and is presently lodged in District Jail, Anantnag. 3. So far as the circumstances leading to the arrest and detention of the appellant are concerned, it is the case of the respondents that on 30th September 2017, during patrolling, the police personnel found the appellant in suspicious conditions. On seeing the police party, the appellant managed to escape from the spot, however, efforts were made by the naka party resulted in his apprehension. On personal search of the appellant, a polythene bag containing 830 grams of substance, which looked like charas, was recovered from his possession. As a result, FIR No. 316/2017 was registered by P/S Handwara under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. During the course of investigation in this case, the sample from the seized material was sent to the Forensic Science Laboratory for expert opinion. The Forensic report has confirmed that the seized material was charas. 4. On the allegation that the appellant was indulging in narcotic trade which was highly prejudicial to the health and welfare of the people of District Kupwara and have also its deleterious impact on the state and national economy, the impugned order dated 21st November 2017, was passed by the Divisional Commissioner, Kashmir, placing the appellant under preventive detention and directing his confinement in jail. Aggrieved thereby, the appellant filed the aforesaid HCP before this Court assailing the order of detention on several ground, inter alia, it was contended that the appellant was already taken into custody in a serious offence and that there was no possibility of his being released from custody. Aggrieved thereby, the appellant filed the aforesaid HCP before this Court assailing the order of detention on several ground, inter alia, it was contended that the appellant was already taken into custody in a serious offence and that there was no possibility of his being released from custody. As such, there was no reasonable apprehension that the appellant would have been bailed out immediately which fact by itself rendered the order of detention illegal and unconstitutional for the reason that there was no cogent ground for making of the said order. 5. Amongst the other grounds in the writ petition, it was pleaded that the appellant was only 8th pass; that he understood Kashmiri language only; that he does not understand the English language well; that he has not been provided the grounds of detention in Kashmiri; that the grounds have not been explained in the Kashmiri language; that nothing had been left with him in Kashmiri. The appellant categorically pleaded that he did not understand the ground of detention, dossier and other documents which were in English language. As a result, the appellant was rendered unable to make a representation against the detention rendering his detention illegal. 6. The respondents entered appearance upon issuance of notice by the learned Single Judge and in response, filed the counter affidavit dated 6th March 2018 which has been placed before us. For expediency, we extract the response of the respondents so far as the above ground of challenge is concerned. In para 3, 4 and 5 of the counter affidavit, the respondents stated thus:- “3. that the detenu was informed of his detention on the grounds specified and he was also informed that he has a right to make a representation to the government against the detention order, if he so desire. 4. That the order of detention was executed on 27.12.2017, and the contents of grounds of detention were read over and explained to the detenu in the language which he understands fully. The detenu was also informed that he has a right to file a representation to the Government against the detention order as well as to detaining authority. 5. That the detenu was asked to file a representation before the detaining authority which he failed to do so. The detenu was also informed that he has a right to file a representation to the Government against the detention order as well as to detaining authority. 5. That the detenu was asked to file a representation before the detaining authority which he failed to do so. It is further submitted that only the relied documents are to be provided to the detenu and not the referred documents and in this behalf whatever was relied by the detaining authority the same was provided to the detenu and the detention order was passed by the detaining authority after subject to satisfaction of the activities of the detenu, as such, the detention order deserves to be upheld. That the detaining authority within his powers to pass the detention order in this behalf.” 7. The learned Single Judge considered the challenge by the appellant and by the order dated 17th May 2018 rejected the same by holding that the grounds of detention were definite, proximate and free from any ambiguity; that the detenu has been informed with sufficient clarity what actually weighed with the detaining authority while passing the detention order and therefore, the detenu is not to be heard saying that any of his constitutional and statutory rights have been violated while the detention order was slapped on him and thereafter executed. 8. Aggrieved thereby, the present appeal has been filed by the appellant primarily urging that the failure to supply the ground of detention to the appellant in the language with which he was conversant, by itself rendered the detention order and his consequential detention completely illegal. 9. Before considering the factual matrix, we may usefully set out the principles laid down by the Supreme Court so far as the ground of challenge laid by the appellant before us is concerned. In the pronouncement of the Supreme Court reported at AIR 1981 SC 728 Lallubhai Jogibhal vs. Union of India, a challenge was laid to the order of detention passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, which provisions are similar to the provisions of the Jammu and Kashmir Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988. 10. Section 3 of the J&K Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances, 1988 which enables detention of a person reads as follows:- “(3) Power to make orders detaining certain persons. 10. Section 3 of the J&K Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances, 1988 which enables detention of a person reads as follows:- “(3) Power to make orders detaining certain persons. (1) The Government or any officer of the Government, not below the rank of the Secretary to that Government, specially empowered for the purposes of this section by the Government, may if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from committing any of the acts within the meaning of “illicit traffic” as defined in clause (c) of Section 2, it is necessary so to do, make an order directing that such person be detained. (2) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.” This requirement of communication of grounds of detention is similar to the requirement of communication of the grounds of detention under the Foreign Exchange and Prevention of Smuggling Act 1974. 11. Mr. Sofi, learned counsel for the appellant has placed the judgment of the Supreme Court reported at AIR 1980 SC 1751 Smt. Raziya Umar Bakshi vs. Union of India and Ors. before us. The Court noted the submissions made by the respondents in the affidavit filed on behalf of the detaining authority that the grounds of detention were explained to the detenu in a language understand to him. The Supreme Court rejected this submission noting that if this was a fact, then the detaining authority, who explained the grounds to the detenu should have filed his own affidavit before the Court stating that the contents of the grounds had been translated in the language which the detenu understood. It was observed that no contemporaneous record has been produced to show that the detaining authority had actually explained or translated the grounds of detention to the detenu. We may usefully extract the observations of the Supreme Court in this context which reads as follows:- “3. It was observed that no contemporaneous record has been produced to show that the detaining authority had actually explained or translated the grounds of detention to the detenu. We may usefully extract the observations of the Supreme Court in this context which reads as follows:- “3. This allegation seems to have been denied by the respondents in para 14 of the affidavit of Mr. P. M. Shah, on behalf of the detaining authority, where he stated that the grounds were explained to the detenu in the language known to him. It was averred in para 5 that one Mr. A. K. Sharma, Police Inspector, C.I.D. (Crime Branch), Ahmedabad had explained to the detenu the order of detention and the grounds communicated to him on January 30, 1980. This affidavit, in my opinion, is wholly inadmissible in evidence. If it was a fact that Mr. Sharma had personally explained the grounds to the detenu then the respondents should have filed an affidavit of Mr. Sharma himself to show that he had actually explained the contents of the grounds to the detenu by translating the same in the language which he understood. No such affidavit is forthcoming. No Contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated the grounds to the detenu. The service of the ground of detention on the detenu 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.” (emphasis by us) 12. So far as the manner in which the requirement to furnish grounds of detention had to be complied with, paras 4 and 5 of the Supreme Court are material and reads as follows:- “4. In case of Hadibandhu Das v. District Magistrate, Cuttak & Anr. [ 1969 (1) SCR 227 ], it was clearly 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. [ 1969 (1) SCR 227 ], it was clearly 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. 5. In case of Hadibandhu Das v. District Magistrate, Cuttack & ground alone. I 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. We have pointed out in several cases that courts frown on detention without trial and insist on the strict compliance of the constitutional safeguards enshrined in Article 22(5) to the letter of the law, because a non-compliance of these safeguards would itself be sufficient to vitiate the order of detention. Despite our repeated observations, unfortunately, however the detaining authority continues to pass orders of detention in a casual or cavalier fashion with the result that the courts are compelled to release the detenus. We hope an trust that in future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the Constitution more particularly because the liberty of the subject is in peril.” (Emphasis by us) It needs no elaboration that the requirement of furnishing the grounds to the detenu in a language which he understands has been held to be an essential requirement to enable the detention order to meet the constitutional safeguards. 13. 13. In the present case, despite the specific objection raised by the appellant as ground (x) in the writ petition, the respondents have cursorily answered the same with the submission that the contents of the grounds of detention were read over and explained to the detenu in the language which he understood fully. The respondents have taken a stand that the detenu was informed that he had a right to file a representation to the Government against the detention order as well as to the detaining authority. This position is not supported by any record. 14. In any case, the mere oral explanation without the grounds being made available to the detenu in a language which he understood would not have enabled the detenu to make any meaningful representation to the Government. This is in-fact fortified by the fact that the respondents themselves state that the appellant did not make any representation against the order of detention. Therefore, even if the submission of the respondents in the given affidavit was accepted, the same was not sufficient compliance with the requirement of law for it to be considered as comporting to the constitutional safeguards. 15. Learned counsel for the appellant has urged at length that the learned Single Judge has not considered any of the objections and grounds laid in the writ petition in the light of the well settled position in law. In as much as the ground of challenge noted by us hereinabove with regard to communication of the grounds of detention to the appellant has been held to be insufficient, we are not considering the other objections pressed by the appellant in support of his challenge to the impugned order No. DIVCOM-K/62/2017 dated 21.11.2017. 16. Given the above narration of the facts, it has to be held that the respondents have failed to communicate the grounds of detention as required under Section 3 (2) of the J&K NDPS Act to the appellant and thereby have violated his statutory right to make a representation and also violated the binding requirement of Article 22 (5) of the Constitution of India. In this background, the impugned order dated 17th May 2018 passed by the learned Single Judge as well as the order of detention bearing No. DIVCOM-K/62/2017 dated 21.11.2017 passed by the detaining authority are not sustainable in law and are hereby set-aside. 17. In this background, the impugned order dated 17th May 2018 passed by the learned Single Judge as well as the order of detention bearing No. DIVCOM-K/62/2017 dated 21.11.2017 passed by the detaining authority are not sustainable in law and are hereby set-aside. 17. As a result, the respondents are directed to release the appellant from preventive custody forthwith, provided he is not involved in any other case. 18. The appeal is allowed on the above terms.