Rashid Ali Dar JUDGMENT
Rashid Ali Dar, J.
1. Challenge in this petition is to the order No. DMS/PSA/05/2018 dated 18.06.2018, passed by District Magistrate, Srinagar-respondent No. 2 herein in exercise of vested in him under Section 8 of the J&K Public Safety Act, whereby Shri Aadil Qayoom Najar (hereinafter referred to as the detenue), has been taken into preventive custody so as to prevent him from acting in any manner prejudicial to the maintenance of security of the State.
2. Respondents despite numerous opportunities did not chose to file the counter affidavit. The learned AAG, however, produce the detention records for perusal of the Court.
3. Learned counsel for the petitioner projected various grounds while seeking quashment of the order impugned but the star ground is that the detenue has been disabled from making an effective representation by not supplying the material forming base of the grounds of detention and the consequent order of detention and further added that the detenue has also been disabled from making an effective representation by not supplying him the translated copies of the ground of detention which are in English language besides being in a hyper technical language which the detenue is not in a position to understand.
4. In opposition, learned AAG submitted that the relevant material considered while passing the impugned order has been furnished to the detenue and the translated copies thereof have also been supplied to him so as to enable him to file a representation which he did not chose to file, therefore, none of his rights have been violated. Further submitted that the impugned order has been passed in accordance with law and the procedural safeguards have been strictly adhered to.
5. Considered the rival submissions and also perused the material available on the file as also the detention records as produced by the learned counsel for the respondents.
6. In the grounds of detention, detenue has been shown involved in FIR Nos. 195/2015, 177/2015, 55/2018 and 59/2018. Involvement of the detenue in the criminal cases, appears to have heavily weighed with the detaining authority while passing the detention order. Nothing has been brought on record to indicate that the copies of aforementioned FIRs, statements recorded under Section 161 Cr. P. C and other material collected during investigation has been provided to the detenue. Rather the record produced by the respondents corroborates the fact that the material relied on by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue. It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material on which detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in "Dhananjoy Dass v. District Magistrate" (MANU/SC/0063/1982 : AIR 1982 SC 1315), "Sophia Ghulam Mohd. Bham V. State of Maharashtra and others" (MANU/SC/0470/1999 : AIR 1999 SC 3051) and, "Thahira Haris Etc. Etc. V. Government of Karnataka & Ors." (MANU/SC/0562/2009 : AIR 2009 SC 2184).
7. It shall be pertinent to quote the observations of the Hon'ble Apex Court in "Sophia Ghulam Mohd. Bham V. State of Maharashtra and others" (MANU/SC/0470/1999 : AIR 1999 SC 3051):
".....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 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 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."
8. In "Ibrahim Ahmad Batti v. State of Gujarat, MANU/SC/0224/1982 : (1982) S SCC 440, the Hon'ble Apex Court, while relying on its earlier judgment Khudiram Das v. State of W.B., MANU/SC/0423/1974 : (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, MANU/SC/0086/1980 : (1980) 4 SCC 531; Shalini Soni v. Union of India, MANU/SC/0227/1980 : (1980) 4 SCC 544; Lulluabhai Jogibhai Patel v. Union of India, MANU/SC/0216/1980 : (1981) 2 SCC 427; Kamla Kanyalal Khushalani v. State of Maharashtra, MANU/SC/0161/1981 : (1981) 1 SCC 748 and Sunil Dutt v. Union of India, MANU/SC/0262/1981 : (1982) 3 SCC, in paragraph 10 of the judgment, has held as under:
"Two propositions having a bearing on the points at issue in the case before us, clearly merge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than five days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Art. 22 (5) of the Constitution."
9. From the judgment rendered by the Hon'ble Apex Court in the case "Chaju Ram Vs. The State of Jammu & Kashmir" reported in MANU/SC/0105/1970 : AIR 1971 SC 263, following portion from para 9 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."
10. It shall also be quite apposite to quote following portions para from paras 3 and 5 of the judgment rendered by the Hon'ble Apex Court in the case captioned "Smt. Raziya Umar Bakshi Vs. Union of India" (MANU/SC/0226/1980 : 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."
11. In view of the law laid down by the Hon'ble Apex Court, as quoted above, the impugned order does not sustain on the above referred ground alone, therefore, other grounds projected in the petition are not required to be dealt with.
12. For what has been stated above, the petition is allowed. Impugned order is quashed. Further custody of the detenue shall be governed in accordance with the orders as shall be passed by the court of competent jurisdiction in the criminal cases registered against him.
13. Registry to return the detention records to the learned counsel for the respondents.
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