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2020 DIGILAW 332 (JK)

Showkat Ahmad Dar v. State of J&K

2020-07-22

SINDHU SHARMA

body2020
JUDGMENT : Sindhu Sharma, J. 1. District Magistrate, Pulwama vide order No. 6/DMP/PSA/2019 dated 15.02.2019 detained Showkat Ahmad Dar S/o Nazir Ahmad Dar R/o Murran, Tehsil & District Pulwama under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 to prevent him from acting in a manner prejudicial to the security of the State. This order of detention is challenged by the detenu through his brother, Mushtaq Ahmad Dar. 2. The detenu seeks quashing of the aforementioned order of detention on the grounds; that the detention order has been issued in violation of the constitutional safeguard provided under Article 22(5) of the Constitution of India. That the Detaining authority has not served the material referred in the grounds of detention to the detenu. The allegations referred in the order of detention are vague, non-existent and detention order as such is un-justified and illegal. There is non-application of mind by the Detaining Authority while passing the order of detention as there is no illegal activity attributable to the detenu to justify his detention. 3. Amongst other grounds, it is also pleaded that the detenu is only 9th pass and he understands Kashmiri and Urdu languages only. He has not been provided with translated copies of the grounds of detention and further they have not been explained to him in the language he understands. The grounds of detention are in English language, thus, unintelligible to the detenu and he was prevented to make an effective representation, thus, rendering the detention illegal. 4. Mr. Mir Sohail, learned AAG has filed the counter affidavit as well as produced the detention record. He submits that the provisions of the Jammu & Kashmir Public Safety Act and the procedural safeguards prescribed therein have been strictly followed. Since the activity of the detenu was highly prejudicial to the maintenance of the security of State, hence the detenu was detained under the said Act. The grounds of detention are precise, proximate and definite and after considering the same, the Detaining Authority had arrived at subjective satisfaction. The detenu was supplied all the relevant material relied upon alongwith grounds of detention and was also informed of his right to make representation but since he had chosen not to make any representation, therefore, he cannot raise any grievance against his preventive detention. 5. The detenu was supplied all the relevant material relied upon alongwith grounds of detention and was also informed of his right to make representation but since he had chosen not to make any representation, therefore, he cannot raise any grievance against his preventive detention. 5. Perusal of the detention record reveals that in the execution report, it is stated that the warrants were executed at Central Jail, Kot Bhalwal, Jammu on 23.02.2019, the contents of which are in English language and they were explained to the detenu in Kashmiri language which he fully understands. The detenu has been provided notice of detention alongwith detention warrant (01 leaf), and grounds of detention (02 leaves) and the same have been handed over to the detenu. He was informed that he can make representation to the Government as well as detaining authority against his detention order. 6. There is specific averment in the petition that relevant material relied upon by the Detaining Authority has not been supplied to the detenu, hence he was prevented from making an effective representation against the detention order. Though it is stated in the counter that detenu has been provided all the relevant record, however, the same is not apparent from the record. Record reveals that on the detention file, there is report (Dossier) of SSP, giving incriminating facts and allegations referred to in the grounds alongwith this report and other documents were also available with the detaining authority while drawing satisfaction for detention of the detenu. In fact, the District Magistrate in its order dated 15.02.2019 has reflected the first paragraph which reads as under:- "Whereas Sr. In fact, the District Magistrate in its order dated 15.02.2019 has reflected the first paragraph which reads as under:- "Whereas Sr. Superintendent of Police, Pulwama vide his letter No. Pros/Lgl/PSA/19/181 dated 13.02.2019 has produced material record, such as dossier and other connected documents in respect of Shri Showkat Ahmad Dar S/o Nazir Ahmad Dar R/o Murran Tehsil Pulwama District Pulwama; Whereas, I District Magistrate Pulwama have perused the contents and recommendations mentioned in the dossier carefully after it was produced before me in respect of the said person; Whereas after perusal of the record submitted by the Senior Superintendent of Police Pulwama, after applying my mind carefully and having regard to the requirements of law, I am satisfied that with a view to prevent Shri Showkat Ahmad Dar S/o Nazir Ahmad Dar R/o Murran Tehsil Pulwama District Pulwama from acting in a manner, prejudicial to the security of the state, it is necessary to detain the said person under the provisions of J & K Public Safety Act." 7. It is settled preposition of law that the entire material relied upon by the detaining authority is to be provided to the detenu and failure to provide the same would prevent the detenu from making an effective representation and this would violate Article-22(5) of the Constitution as provided. 8. The Detaining Authority has, thus, drawn its satisfaction on the basis of record and after considering all the material produced by SSP, including dossier. This material had not been supplied by the Detaining Authority to the detenu. He has been given a mere copy of grounds and without supporting material referred to in the grounds of challenge. The failure to communicate the same as required under Section 13 of the Public Safety Act, has resulted in violation of the statutory right to make an effective representation, therefore, the respondents have failed to discharge the constitutional obligation as mandated by Article-22(5) of the Constitution. 9. In Rekha vs. State of Tamil Nadu & anr., 2011 (5) SCC 244 , the Apex Court held as under:- 37. As observed in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another (1987) 2 SCC 22 , vide para 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. As observed in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another (1987) 2 SCC 22 , vide para 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...." 39. Personal liberty protected under Article 21 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. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale case: (QBD p. 461) "Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue." 10. In Raziya Umar Bakshi V. Union of India and others, AIR 1980 SC 1751 , it is held that "the service of the grounds of detention has been held on the detenu was a very precious constitutional right and the object is to enable the detenu to file an effective representation it would be anti formality to supply the ground of detention to the detenu unless he is in a position to understand the same." 11. Similarly, in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others, : AIR 1999 SC 3051 , the Apex Court observed 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 detenu 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 the detenu 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.." 12. Thus, the detenu was denied the opportunity to make an effective representation against his detention. In these facts and circumstances, the failure to supply the material relied upon to the detenu at the time of his detention, has denied him the right to make an effective representation against the order of detention within meaning of Article 22(5) of the Constitution of India and Section 13 of the PSA. The detention order, therefore, on this very ground itself is vitiated. 13. This apart, it has also been stated that the failure to supply the grounds of detention to the detenu in the language he was conversant has also vitiated the detention in this case. It is also averred that the detenu was not provided the translated copy of the material relied upon by the detaining authority. 14. In Raziya Umar Bakshi's case (supra), the Apex Court, while considering the similar proposition has held as under:- "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. 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." 15. Similarly, in Hadibandhu Das v. District Magistrate, Cuttack & Anr., 1969 (1) SCR 227 , it has been 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." 16. Thus, the requirement of furnishing the grounds of detention to the detenu in the language he understands is held to be essential requirement to meet the constitutional safeguards. In the present case there is not even a whisper of the same in the counter affidavit. The respondents have stated that the detenu was informed of his right to make representation against the detention order passed by the detaining authority. Mere oral explanation without any ground being made available to the detenu in the language which he understands would not enable the detenu to make meaningful representation to the Government. 17. Thus, there is no sufficient compliance with the requirement of law for providing the detenu with the constitutional safeguards. 18. In view of the aforesaid discussions, the impugned detention order of Showkat Ahmad Dar S/o Nazir Ahmad Dar R/o Murran, Tehsil & District Pulwama, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 19. Detention record be handed over to learned counsel for the respondents.