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2020 DIGILAW 402 (JK)

Sabzar Ahmad Naik v. State of J&K

2020-08-20

SINDHU SHARMA

body2020
JUDGMENT The order of detention passed by District Magistrate, Shopian vide No. 163/DMS/PSA/2019 dated 27.02.2019 is challenged in this petition by the detenu Sabzar Ahmad Naik S/o Muhammad Yousuf Naik R/o Babapora, Shopian through his father-in-law. 2. The detenu has challenged the order of detention on the grounds: (i) The grounds of detention have no nexus with the detenu and have been fabricated to justify the illegal action of detaining of the detenu. (ii) The allegations made in the grounds of detention are vague, non-existent and no prudent man can make representation on these grounds, therefore, the impugned order of detention suffers from non-application of mind. (iii) The detenu was arrested in January, 2019 by Police Station Zainpora, Shopian and was in police custody up to 27.02.2019 the date on which the detention order was passed. The detaining authority despite being aware that the detenu is in custody has not disclosed any cogent and compelling reason to justify the detention of the detenu. (iv) The detenu has not been furnished all the material relied upon by the detaining authority while passing order of detention. (v) The detenu only understands Kashmir language and the detention order as well as the grounds of detention has not been provided to the detenu in the language he understands thus, his right to make effective representation under Article 22(5) of the Constitution of India has been violated. 3. Mr. M. A. Chashoo, learned Additional Advocate General has filed the counter affidavit and produced the detention record. It is submitted that the detenu was detained under the provisions of Public Safety Act after complying with all the constitution and statutory requirement. The detenu was supplied with order of detention as well as all the material relied upon by the Detaining Authority while passing the order of detention. The contents of the detention order as well as grounds of detention were read over and explained to him in the language he understands. Execution report of the officer is also on record. The detenu was also informed of his right to make a representation. The Detaining Authority arrived at subjective satisfaction after considering all the material that there are compelling reasons to place the detenu in detention under the Public Safety Act. Execution report of the officer is also on record. The detenu was also informed of his right to make a representation. The Detaining Authority arrived at subjective satisfaction after considering all the material that there are compelling reasons to place the detenu in detention under the Public Safety Act. The detenu, despite having been informed of his right to file a representation against the detention order, chosen not to file any representation, therefore, he cannot say that his right to file representation was prejudiced. The Advisory Board has also recommended that there are sufficient grounds for further detention of the detenu. The grounds of detention have been explained to him in the same language which he understands. It is contended that the detaining authority has arrived at its satisfaction after considering all the material placed before it that there were compelling reasons to place the detenu under Public Safety Act. 4. Heard learned counsel for the parties and perused the record. 5. The case set up by the detenu that all the material relied upon by the detaining authority while passing the order of detention has not been supplied to him. Perusal of the record reveals that the detention order (01 leaf), Notice of detention (01 leaf), Grounds of detention (06 leaves) copies of FIR ( 05 leaves) total 13 leaves have been handed over to the detenu at Central Jail Kot-Bhalwal, Jammu on 08.03.2020 and he was informed right to make representation, however, the detenu has not been supplied the dossier on which reliance have been placed. 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. 6. In Rekha v. 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 continue.” 7. 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…..” 8. A specific averment has been made in this petition that detenu understands only Kashmir language and the translated copies of the same have not been provided to him. This stand is also admitted by the respondents in para 3 of the counter affidavit which reads as under: “3. That the detenue stands detained on the reasons mentioned in the grounds of detention and the detenue is also involved in FIR mentioned in the grounds of detention. It is further submitted that the detenue has red upto 8tH standard and can understand Urdu & Kashmiri languages and accordingly the grounds of detention were explained to him in the same languages i.e., Urdu & Kashmiri.” 9. However, perusal of the record does not reveals that the translated copies of the same has been provide to the detenu. It is further submitted that the detenue has red upto 8tH standard and can understand Urdu & Kashmiri languages and accordingly the grounds of detention were explained to him in the same languages i.e., Urdu & Kashmiri.” 9. However, perusal of the record does not reveals that the translated copies of the same has been provide to the detenu. This aspect was considered in the catena of the judgment of Hon’ble Supreme Court 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.” 10. 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.” 11. Similarly, in Hadibandhu Das v. District Magistrate, Cuttak & 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.” 12. This apart the detaining authority has not shown any compelling reasons for passing the order of detention when it is admitted by them that the detenu was already in custody in the absence of which this detention is vitiated, thus, there is no sufficient compliance with the requirement of law for providing the detenu with the constitutional safeguards. 13. In view of the aforesaid discussions, there is no need to advert to other grounds raised in this petition. This petition is allowed, impugned detention order No. 163/DMS/PSA/2019 dated 27.02.2019 of Sabzar Ahmad Naik S/o Muhammad Yousuf Naik is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 14. Detention record be handed over to learned counsel for the respondents.