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Gulzar Ahmad Alai v/s State of J&K & Others

    H.C.P. No. 208 of 2002

    Decided On, 08 April 2003

    At, High Court of Jammu and Kashmir


    For the Petitioner: S.T. Hussain, Advocate. For the Respondent: M.M. Khan, AAG.

Judgment Text

1. Subject, Gulzar Ahmad Alia, has been detained by District Magistrate Anantnag, under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State under his order No. F-198/DMA/PSA/DET/2001/301-306 dated: 11.09.2001. In this petition challenge is thrown to the legality of this order and the consequent detention. Respondents have filed counter affidavit. The detention file is also made available on record.

2. The Ld. Counsel for the petitioner submits that the detenue is prejudiced, in as much as he has not been supplied with the report/dossier/documents referred in grounds and subject of satisfaction of the detaining authority while arriving at a decision culminating in detention of the subject. The detenue was deprived of an opportunity to make representation against the detention to the Government by the above conduct of the responden

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s. The counsel further submits that the detenue is an illiterate and understands only Kashmiri language. The detention order and the grounds have not been explained to him in this language. Even translated copies or transcription of the order and the grounds in this language which he understand, have not been supplied to him. In the above circumstances when the detenue is denied the report, dossier and other documents and material referred in grounds relied on in drawing the satisfaction by detaining authority besides failure to explain detenue the grounds as also not supplying a translated copy thereof in the language which the detenue understood, the detention order cannot be said to have been at all communicated to him thereby he is prejudiced in making the representation. By violating this right of detenue guaranteed under Article 22(5) of the Constitution and Section 13 of the J&K Public Safety Act, the detention is rendered bad and illegal.3. The counsel further contends that there has been delay in executing the order of detention, notwithstanding that the detenue was already in punitive custody with the respondents. This also has vitiated the detention.4. The AAG, in his submissions has refused both the grounds. The detenue is stated to have been supplied the grounds of detention which alone is relied and the basis for the detention. Besides, the detenue has been explained the detention order and the grounds fully and therefore the detenue is communicated the grounds and is not prejudiced to make representation against detention. The detenue has been afforded a reasonable opportunity to make representation. The past conduct and antecedent history and tendency and inclination of the detenue has been taken into account while passing the detention order. There is no delay what-so-ever in executing the order. Therefore, the detention order is not vitiated or illegal on the aforesaid submissions of the detenue's counsel.5. The grounds in English with the detention order. (Annexure-AI) speak of detention of the subject as per dossier received from Superintendent of Police Kulgam. The dossier is on the detention file. Admittedly, this report/dossier of Superintendent of Police, Kulgam distinctly referred in grounds as the basis for the District Magistrate, (detaining authority) to draw satisfaction for the detention order in respect of the subject, is not supplied to the detenue. Coupled with this statement in the grounds, examination of the grounds reveal that the given antecedents and past history of the detenue, alleged track record of his militancy related activities, his previous conduct, tendency and inclination to recycle himself in the militancy activities, all show some sort of report, dossier, material as basis for the grounds of detention and the consequent satisfaction drawn by the detaining authority to detain the subject. Even the ground show that at least two cases on first information reports are registered against the detenue in which the subject figures in connection with recovery of some arms, ammunition and explosives. It is also part material relied on, obviously at least a little detail ought to have been placed on record to show involvement of the subject, if copies of the documents referred in the two FIRs, were not supplied to him. This is not even done contextually, it is seen that the subject is stated to be by profession a Driver and is alleged (in petition) an illiterate person. It is not denied in counter that the subject is illiterate. What is stated is, that the detenue has been made to understand the grounds in the language which he understood without referring to the language which the detenue understands. The receipt of grounds of detention reads as:-"....The contents of grounds of detention were read over and explained to me in English/Urdu/Kashmiri which I understood fully......"6. This receipt signed by the Superintendent, District Jail Kathua, bears name of the subject. A plain reading of this receipt in combination with the alleged endorsement on the back of order of detention at the time when the subject was handed over at District Jail, Kathua, for lodgment, shows that the explaining of the detention ground is vague. It is not specifically shown in which language it was read over and explained to the subject. Merely mentioning of three languages English, Urdu and Kashmiri as the medium in which it is explained, it cannot be necessarily concluded that the detenue was explained the grounds in Kashmiri. It is not denied that the detenue has not been supplied any translation or transcript of the grounds in Kashmiri.7. In Raziya Umar Bakshi's case (AIR 1980 SC 1751) in the context of COFEPOSA Act of 1974, His Lordship Late S. Murtaza Fazl Ali, J, observed:-"5. In this view of the matter, the detention becomes invalid on this 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 detenue, 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 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 the 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."8. In Sophia Gulam Mohd. Bhan v. State of Maharashtra and others, AIR 1999 SC 3051, the following observation of the Apex Court though made in the context of COFE POSA Act of 1974. apply with full force to this case:-".....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 detenue to make 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 to the detenue 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...."9. In Naseer Ahmad Sheikh v. Additional Chief Secretary Home & anr., (1999 SLJ 241) a Division Bench of this court has observed :-".....The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. No where is it pleaded, much less shown, that the copy/copies of these reports of the Police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective representation against the order."10. On examination of record, it is found that there has been no delay at all in executing/implementing the detention order, while the detention order is passed on 11.09.2001 followed by its approval by the Government on 21.09.2001, the order has been executed and detenue taken in preventive custody on 21.09.2001 itself.11. In the facts and circumstances of the case, it cannot be said that there is any delay, much less un-explained delay so as to vitiate the detention on the premise that the live proximate link between the detention order and purpose of detention is snapped. This contention is over ruled.12. In the aforesaid view of the matter petition succeeds on merits and the detention is vitiated and accordingly quashed. Respondents/authority having physical corpus of the detenue shall release Gulzar Alai, S/0 Mohd. Moqbool Alai, R/O Dhamhal Hanjipora, from custody and set him at liberty forthwith provided not required in any case, offence or matter.13. Copy of this order shall be given to petitioner free of cost. Communicate this order to concerned authorities. Detention file returned to Mr. M.M. Khan, AAG, in open court.Disposed of.

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