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2019 DIGILAW 11 (JK)

Ghulam Rasool Kaloo v. State of J&K

2019-01-11

RASHID ALI DAR

body2019
JUDGMENT : 1. In pursuance to order No.DMS/PSA/17/2018 dated 21.08.2018, issued by District Magistrate, Srinagar, in exercise of powers conferred under Section 8 of the J&K Public Safety Act, Shri Ghulam Rasool Kaloo son of Ghulam Mohammad Kaloo resident of Rampora Chattabal, Srinagar (hereinafter referred to as the detenue), has been taken into preventive custody. By the instant petition quashment of the said order is sought on the grounds enumerated in the petition. 2. Learned counsel for the petitioner projected various grounds but the star ground is that the material which formed base of the grounds of detention and consequent order of detention has not been furnished to the detenue, besides translated copies of the grounds of detention have not been furnished to him which disabled him from making an effective and purposeful representation against his detention. 3. Perusal of the detention records reveals that the submission has weight. Detention records shows that only copy of detention warrant and copy of grounds of detention (04 leaves) have been provided to the detenue while executing the detention warrant. Furnishing the copy of grounds of detention would not absolve the detaining authority from furnishing the material forming base of the grounds of detention as it is the material which would enable the detenue to make an effective representation against the detention. Non-supply of the material would amount to violation of Article 22(5) of the Constitution of India, so deprivation of a valuable right. 4. The Hon’ble Apex Court in its judgment captioned Thahira Haris etc. etc. Vs. Government of Karnataka and Ors, reported in AIR 2009 Supreme Court 2184, 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. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. 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. The records also 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 and 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.” 6. 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.” 6. It shall be quite advantageous to quote following para from the judgment rendered in case captioned Powanammal vs. State of T. N. and another reported in 1999 (2) SCC 413 : “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 detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order.” 7. Though in the Execution Report dated 02.09.2018, which forms part of detention record, it is submitted that the contentions of warrant and the grounds of detention were read over and explained to the detenue in Urdu and Kashmiri language which he fully understood, but no affidavit in support thereof has been filed by the officer who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions. Resort can, in this behalf, be had to the law laid down by the Apex Court of the country in the case of “State Legal Aid Committee, J&K versus State of J&K and Others, reported in AIR 2005 SC 1270 , wherein it has been held as under:— “Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of Section 13 of the Jammu and Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/ communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement LPA (HC) 107/2017 10 of 16 to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of Section 13 of the Act.” 8. For what has been stated above, petition is allowed and the impugned detention order bearing No. DMS/PSA/17/2018 dated 21.08.2018, passed by District Magistrate, Srinagar, being unsustainable, is quashed. Detenue is directed to be set free from the preventive custody forthwith provided he is not required in connection with any other case. 9. Detention record be returned to the learned counsel for the respondents.