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2020 DIGILAW 605 (JK)

Jan Mohd. v. Union Territory of J&K

2020-11-18

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—Challenge in this petition is thrown to the order No.09 of 2020 dated 09-07-2020, issued by District Magistrate, Jammu (for brevity “Detaining Authority”) whereby Jan Mohd. son of Shah Mohd. Gujjar resident of R. S. Pura A/P Asrarabad, Sidhra Jammu (for short “detenu”) has been placed under preventive detention. 2. The detenu has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the translated version of the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenu. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenu has been detained only after following due procedure; that the grounds of detention were read over to the detenu; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenu has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for parties and I have also gone through detention record. 5. Learned counsel for the detenu has highlighted various grounds while seeking quashment of impugned order but the main grounds on which stress has been laid during the course of arguments are that there has been total non-application of mind while passing the impugned order, inasmuch as at the time of passing the detention order, the detenu was booked in various criminal cases and that there were no compelling reasons for the Detaining Authority to make the impugned detention order as the Detaining Authority has not spelt out the compelling reasons for detaining the detenu under preventive detention laws and that there has been non-application of mind on the part of the Detaining Authority as the grounds of detention are more or less a Xerox copy of the dossier. 6. 6. Per contra, the learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the detenu was a habitual criminal, inasmuch as there were various FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention and there was every likelihood of the detenu indulging in similar activities. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenu and in token of having received the same, the detenu has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenu in the language understood by him. 7. It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenu could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court in the cases of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691 and in T. P. Moideen Koya vs. Government of Kerala and ors. reported in 2004 (8) SCC 106 . 8. Adverting to the facts of the instant case, the detention record shows that the Detenu was booked in FIR Nos.100/2020, 101/2020, 220/2020, 221/2020, 222/2020 and 233/2020. The Detaining Authority was bound to record the compelling reasons as to why the detenu could not be deterred from indulging in subversive activities by resorting to normal law. 9. A perusal of the grounds of detention and the record on the basis of which the same have been formulated reveals that the detenu has been booked in a number of FIRs, according to which, the detenu has been found to be involved in smuggling of bovine animals without proper permission from the competent Authorities. 9. A perusal of the grounds of detention and the record on the basis of which the same have been formulated reveals that the detenu has been booked in a number of FIRs, according to which, the detenu has been found to be involved in smuggling of bovine animals without proper permission from the competent Authorities. The details of as many as six FIRs are given in the grounds of detention, but all these FIRs are stated to be under investigation in which the arrest of the detenu is stated to be awaited. This means that the respondents, without resorting to substantive penal law and without arresting the detenu in the aforesaid FIRs, have taken recourse to preventive detention laws. It is not forthcoming from the grounds of detention or the detention order as to why the Detenu has not been arrested in these FIRs. 10. In the instant case, it appears that the respondents have not even attempted to take recourse to the normal criminal law and have directly detained the detenu under Public Safety Act, that too, without even disclosing the compelling reasons for doing so. This clearly shows that there are no compelling reasons for the respondents to pass the detention order against the detenu. 11. As already noted, the Supreme Court in a catena of judgments has clearly held that unless there are compelling circumstances and cogent material before the Detaining Authority for passing a detention order against a person who is already in custody or is facing criminal prosecution in a substantive offence, the Detaining Authority cannot pass an order of detention against such a person. The impugned order of detention, therefore, becomes unsustainable in law. 12. The other ground urged by the learned counsel for the detenu in this case is that the detenu has not been furnished the translated version of the material which formed the basis of grounds of detention. According to the learned counsel, it has been specifically pleaded by the detenu that he is a non-Urdu knowing person and that the grounds of detention and the material in support thereof have not been provided to him in a language which he could read or understand. It is averred in the petition that the detenu is illiterate belonging to a nomad Gujjar community. There is no specific denial to these averments in the counter affidavit of the Detaining Authority. It is averred in the petition that the detenu is illiterate belonging to a nomad Gujjar community. There is no specific denial to these averments in the counter affidavit of the Detaining Authority. In the petition, it has been admitted by the detenu that he has been supplied with 115 pages, but according to him, the said documents are in a language which is alien to him. 13. A perusal of the documents attached to the grounds of detention reveals that the same are either in English language or in Urdu language and as per the execution report contained in the detention record, 81 leaves have been furnished to the detenu. The question arises whether furnishing of documents in a language which is not known or understood by the detenu constitutes compliance to the safeguards provided in terms of Article 22(5) of the Constitution of India. 14. The service of the grounds of detention on the detenu is a very precious constitutional right and the object behind the same is to enable the detenu to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenu unless he is in a position to understand the same. In my view I am fortified by the judgments rendered by the Supreme 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 quote: “……. 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.” 15. The observations made by the Supreme Court in Ibrahim Ahmad Batti’s case (supra) are also relevant to the context and the same are reproduced herein below: “Lastly, Urdu translations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly not supplied to the detenu at all and the only explanation given by the counsel for the respondents at the hearing has been that most of these documents (Urdu translations whereof were not supplied) comprised statements of accounts which had figures in English with some English words written in capital letters and some documents were in Hindi and Gujarati and the record (statements of Rekha, her sister Indi and one Jayantilal Soni, all co-conspirators of the detenu, recorded during the investigation) clearly shows that the DETENU knows English figures, understands English words written in capital letters and can also converse or talk in Hindi and Gujarati and as such the non- supply of Urdu translations of these documents cannot be said to have caused any prejudice to the DETENU in the matter of making a representation against his detention. In our view, the explanation is hardly satisfactory and cannot condone the non-supply of Urdu translations of these documents. Admittedly, the DETENU is a Pakistani national and Urdu seems to be his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfaction. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot be brushed aside as false especially in view of the fact that the same was accepted on the earlier occasion by the Advisory Board who had actually opined that failure to supply Urdu translations of grounds of detention and documents had vitiated the earlier order of detention and following this opinion respondent No. 1 had revoked the said order. Moreover, with the assistance of counsel on either side we have ourselves gone through many of these documents and statements and it is not possible to say that most of them are merely statements of account containing figures in English with English words written in capital letters. These documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the DETENU in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Article 22(5) is clearly violated.” 16. It shall also be quite apposite to quote the following portions from paras 3 and 5 of the judgment rendered by the Supreme 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.” 17. Further, in “Powanammal Vs. Further, in “Powanammal Vs. State of T. N. and another” reported in (1999) 2 SCC 413 , the 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.” 18. The detention record produced by the learned counsel for the respondents shows that the detenu has been provided with grounds of detention and the material in support thereof which is either in Urdu language or in English language. As already noted, the detenu has specifically averred that he does not understand either Urdu or English language which has not been specifically denied by the respondents. However, the respondents have contended that the contents of grounds of detention and the material in support thereof were explained to the detenu in Pahari/Gojri language and in this regard, an affidavit of the executing official forms part of the detention record. In the execution report, it is stated that the grounds of detention and the material in support thereof has been explained to the detenu in Gojri/Pahari language and a copy of the affidavit of the executing official is on record to this effect. However, a close scrutiny of the said affidavit reveals that it has not been sworn before any Authority. It is a simple statement of facts recorded on a stamp paper. Even otherwise, there is not even an averment in the said affidavit that the deponent has explained the contents of grounds of detention and the material in support thereof to the detenu in a language understood by him. It simply says that the warrant was read over to the detenu in presence of Jail Authorities. Therefore, not even the requirement of explaining the contents of the grounds of detention and the material in support thereof in the language understood by the detenu seems to have been complied with by the respondents in the instant case. 19. It simply says that the warrant was read over to the detenu in presence of Jail Authorities. Therefore, not even the requirement of explaining the contents of the grounds of detention and the material in support thereof in the language understood by the detenu seems to have been complied with by the respondents in the instant case. 19. The law casts a duty upon the Detaining Authority to not only explain the contents of grounds of detention and the material in support thereof to the denteu in the language he understands, but it is also the requirement of law that the grounds and the material in support thereof should be furnished to the detenu in writing in the language which he understands. A semi-literate detenu cannot be expected to remember or have sufficient knowledge of the basic facts constituting grounds of detention and the material comprising as many as 81 pages. 20. The Supreme Court in, Lallubhai Jogibhai Patel vs Union Of India, AIR 1981 Supreme Court 728 while explaining the expression ‘communicate’ contained in Article 22(5) of the Constitution, has observed as under: “It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be “communicated” to the detenu. “Communicate” is a strong word. It means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ‘ground’ to the detenu is to enable him to make a purposeful and effective representation. If the ‘grounds’ are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. The whole purpose of communicating the ‘ground’ to the detenu is to enable him to make a purposeful and effective representation. If the ‘grounds’ are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan v. State of Maharashtra: and Haribandhu Dass. v. District Magistrate ( AIR 1969 SC 43 )”. 21. It is, thus, clear that law requires the Detaining Authority to not only read over and explain the grounds of detention and the material in support thereof to the detenu in the language he understands, but it also requires that something in writing should be given to the detenu in a language which he understands, so as to enable him to make effective representation against the order of detention. In the instant case, the same has not been done by the respondents. 22. The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the detenu. The impugned order of detention bearing order No.09 of 2020 dated 09-07-2020, issued by District Magistrate, Jammu is, therefore, unsustainable. Accordingly, the same is quashed. The detenue is directed to be released from the preventive custody forthwith, provided he is not required in connection with any other case. 22. The record, as produced, be returned to the learned counsel for the respondents.