Ghulam Mohi-ud-dIn Najar Vs. Addl. Chief Secretary, Homes and ors. - Court Judgment

Excerpt:
- ordersyed bashir-ud-din, j.1. ghulam mohi-ud-din najar has been detained under order dated 01-01-1998 of district magistrate, srinagar, respondent no. 2 for a period of 18 (eighteen) months under section 8 of the jammu and kashmir public safety act of 1978, (hereinafter, for short act).2. this order of detention is under challenge in this petition filed by the detenu's brother on the following grounds :-(i) the detention case has not been referred to the advisory board within the prescribed time and board has not also given its opinion and report with respect to sufficiency or otherwise of the cause for detention within the required time period. failure to refer the matter to the board and submission of the opinion and report by the board to the government within stipulated time period as.....

Judgment:
ORDER

Syed Bashir-Ud-Din, J.

1. Ghulam Mohi-Ud-Din Najar has been detained under order dated 01-01-1998 of District Magistrate, Srinagar, Respondent No. 2 for a period of 18 (eighteen) months under Section 8 of the Jammu and Kashmir Public Safety Act of 1978, (hereinafter, for short Act).

2. This order of detention is under challenge in this petition filed by the detenu's brother on the following grounds :-

(i) The detention case has not been referred to the Advisory Board within the prescribed time and Board has not also given its opinion and report with respect to sufficiency or otherwise of the cause for detention within the required time period. Failure to refer the matter to the Board and submission of the opinion and report by the Board to the Government within stipulated time period as statutorily laid down by the provisions of the Act, invalidates the detention;

(ii) The detenu has not been served with order of detention. He has not been informed of his right of making representation against the detention to the Government;

(iii) Material referred in the grounds of detention has not been supplied to him. This has prevented the detenu to make an effective representation against the detention;

(iv) The grounds of detention supplied to the detenu in English language were not understood by him, as the grounds were not accompanied by a translation in Urdu or Kashmiri. The grounds were unintelligible to him. Thereby, he has been prejudicially effected in making representation against the detention;

(v) That the detention order has not been confirmed by the Government under Section 17(2) of the Act, and

(vi) Though the detenu was with the respondents under custody, yet, he was detained under Public Safety Act simultaneous detention under the Act and in a regular case renders the detention illegal.

3. On behalf of Respondents, one Shri A. G. Sofi, Under Secretary in the Home Department, has filed counter and in terms thereof the detenu is stated to have been detained under the provisions of Public Safety Act in order to prevent him from indulging in any activities subversive and prejudicial to the security of the State, notwithstanding, registration of FIR 108/97 in Police Station Safakadal, against the detenu for recovery of ammunition from him.

4. It is further averred that the case of the detenu was referred to the Advisory Board under Section 15 of the Act and the Board gave the opinion in accord with the continued detention of the detenu. The detention order was confirmed by the Government on 13-2-1998. It was only on application of mind and satisfaction by the detaining authority that the order of detention was passed. The grounds of detention were provided to the detenu on 12-1 -1998, i .e. on the day when the detention order was executed upon the detenu. The grounds of detention 'were read over and explained to the detenu in Kashmiri/Urdu/English languages which he understands fully and the detenu was also informed that he can make the representation to the Government against the detention order if so desire'.

5. Except paras 1 and 2, which have not been replied and are stated to be a matter of record, all other writ petition paras are replied jointly in one line as 'not correct and are denied with vehemence'.

6. Mr. N. A. Ronga, submits that as taken up in the grounds of challenge to the detention respondents have failed to comply with the provisions of the Act. In particular, provisions which prescribe the time period during which the matter of detention had to be referred to the Board and the Board was to give its opinion and report regarding the detention, have not been at all complied with. He further submits that in this behalf, Sections 15 and 16 of the Act have not been at all complied with.

7. Mr. R. Bazaz, GA, submits, that the provisions have been complied with in so far as the matter has been referred to the Advisory Board and opinion of the Advisory Board has been obtained by the Government. He has referred to the counter ,of the Under Secretary on behalf of Government on record.

8. Section 15 of the Act provides that, in case where detention is ordered under the Act, the ground(s) on which the order is made, has to be placed before the Advisory Board constituted by the Govt. under Section 14 of the Act, within a period of four weeks from the date of detention under the order of the competent authority.

9. Section 16 of the Act provides that, the Advisory Board on consideration of material placed before it and after calling further such information, as it deems necessary and after hearing the concerned person in a particular case, if it considers it essential to do so, or in case the person concerned desires to be heard, shall submits its report to the Government within eight weeks from the date of detention.

10. It is obvious that the case of a detenu has to be referred to the Board within four weeks from the date of detention under the order of Competent Authority and the Board has to give its report to the Government within eight weeks from the date of detention.

11. In this case, the counter does not reveal that the case of the detenu was referred to the Advisory Board within the said four week time period from 13-1-1998, the date on which the detenu is stated to have been detained under the order of detention dated 1-1-1998, of District Magistrate, Srinagar, Respondent No. 2. Again, in the counter, there is not even a hint that the Advisory Board has given its report within eight weeks from 13-1-1998, i.e. the date of detention.

12. Evasive reply and omnibus phraseology in the counter with regard to compliance of time periods prescribed by Section 15 and 16 of the Act, cannot be tantamount to specifically refuting the incriminating allegation of noncompliance with the provisions of Section 15 and 16 of the Act, with regard to the time period within which the case was placed before the Board and the report of the Board was to be obtained.

13. Reply to the petition paras in general terms as 'detenu was referred to the Advisory Board under law 'cannot be said to be the specific reply to the allegation of non-compliance with Section 15 and 16 of the Act. Record has not been produced at all. The Government Advocate, finding himself in an indefensible position on this count, concedes that the allegations on this count have remained un-controverted. Obviously, the Court insists on strict compliance with the provisions of Section 15 and 16 of the Act, in so far as it lays down above statutorily time oriented actions. After all the freedom of a person cannot be deprived except in accordance with the procedure prescribed by law and not dehors the provisions of law which include taking of specified time frame actions within the parameters of specified and prescribed time period. There is no way out except to follow time waived specified procedure of Sections 15 and 16 of the Act.

14. The counsel for the petitioner has next canvassed that as the detenu has neither been served with the order of detention nor provided the material referred in the grounds, nor made to understand the detention order written in English language, therefore, he has been prejudicially affected to make an effective representation. Even the detenu has not been disclosed that he has a right to make the representation against the detention.

15. In the counter-affidavit, it is asserted that the grounds of detention were furnished to the' detenu on the day and date, when he was detained under the impugned order and the contents of the grounds 'were read over and explained' to the detenu in Kashmiri/Urdu/English languages which he understands fully and the detenu was also informed that he can make representation to the Government against the detention order if so desire. The receipt was also acknowledged by the detenu which is a part of detention record'.

16. It would be seen that the grounds of detention are stated to have been served upon the detenu and contents thereof read over and explained to him in Kashmiri/Urdu and English languages. It is also stated that he understood these languages. Though it is further stated that the receipt of the grounds was acknowledged by the detenu and is on detention record, but same has not been produced before the Court. Nor only so, the deponent, Mr. Sofi, Under Secretary in the Home Department, does not state that he served the detention order. In terms of the impugned detention order Annexure P2, SSP. Srinagar has been asked to execute this detention order. Neither the SSP Srinagar, nor any other person or authority who actually served the order on the detenu has come forth to swear affidavit or produce some record to show that the detenu has been in fact served. There is nothing on record to show that the grounds as also the order of detention were read over and explained to the detenu in a language which he understand, as even directed in the endorsement of the warrant of detention by Respondent No. 2. In the order of detention, petitioner is shown to have been confined and lodged in Central Jail Srinagar. The Superintendent Central Jail Srinagar, or any other officer of the Central Jail Srinagar, or for that matter from any other jail where the detenu was lodged at the material time, has not come forth to swear an affidavit to reveal that the detenu was made to understand the grounds of detention and informed of his right to make representation against the detention.

17. It is pertinent to refer to, AIR 1980 SC 1751 and AIR 1969 SC 43 : 1969 Cri LJ 274.

18. In Smt. Raziya Umar Bakshi v. Union of India case AIR 1980 SC 1751 (supra) it has been held (at page 1752):.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 detenu, 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 detenu 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.

In AIR 1969 SC 43 : 1969 Cri LJ 274 it has been observed (at page 277 of Cri LJ):

that mere oral explanation of an order without supplying him a translation in a script or language which the detenu understood amounted to denial of right of being communicated the grounds.

In such circumstances, it cannot be said that the allegation of failure to explain the grounds of detention to the detenu has been refuted or rebutted. Admittedly, the grounds were not accompanied by a copy of translated script. There is nothing on record to show that any certificate or document of the concerned is on record to show that the grounds were explained to the detenu in a language which he understood. It appears that the required formalities have not been observed. Absence of a document/affidavit of a person, who did the job of explaining/translating the grounds, adversely affects the petitioners' right of being communicated the grounds in an effective manner

19. It is no where refuted in the counter that the detenu was not supplied the material referred in the grounds. There is a silence on this aspect of this case in the counter-affidavit. The grounds - Annexure PI reveal that the grounds have been drawn on the record made available to District Magistrate, Srinagar, in so far as the grounds addressed to the detenu open with the words 'as per records made available to this office, it is clear....' The record obviously should pertain to the three instances which have been quoted as examples to show petitioner's involvement in activities prejudicial to the security of the State. Besides, the detenu is stated to have been arrested on 28-10-1997 in FIR 108 of 97 under Section 307/427 RPC, 3/5 Ex. P. Act registered at Police Station Safakadal. Copy of this FIR as also the seizure memo of the two Grenades and two Magazines stated to have been recovered from the possession of the detenu, also forms part of the record, referred in the grounds. The contention of the counsel of the petitioner that all the above record and the documents referred in the grounds have not at all been supplied to the detenu, is not contested by the Government Advocate.

20. In the counter-affidavit, there is no averment to reveal that the above referred documents have been at all furnished to the detenu.

21. Cumulatively considered, it is obvious that the detenu has not been communicated the grounds of detention and supplied the documents and material, the basis of the detention, thereby, being prejudicially effected. The detenu has been adversely effected to make an effective representation against the detention. The result is that the detention is rendered bad on this count.

22. Detenus advocate also contends that the detenu was in custody since 28-10-1997 in a regular case (FIR No. 108/97) registered at Police Station Safakadal, yet, he was detained under Public Safety Act without specifying reasons therefor. The Government Advocate submits, that keeping in view the nature and the gravity of the activities of the petitioner, the detaining authority had no alternative but to detain him with a view to prevent him from undermining the security of the State. It appears that the detaining authority was fully aware of the pendency of the regular case against the detenu of which mention is made even in the grounds. In counter, it is further averred that the detention was ordered keeping in view the gravity of the activities of the detenu. The detention of Ghulam Mohideen Najar, was ordered to prevent him from indulging in subversive activities prejudicial to the security of the State. Having regard to the antecedents and the activities he was indulging as activist of Tharequl Mujahedeen outfit, that detaining authority seemed fully aware of the case while arriving at subjective satisfaction on application of its mind. It took into consideration this aspect of the case. The compelling reasons for the detention though not expressly stated, can be culled from record. Therefore, the contention of the counsel on this count has to be rejected and is accordingly rejected.

23. In this case, it is seen from record that the allegation of non-application of mind while ordering the preventive detention has been leveled. To controvert this allegation (and for that matter the other petition allegation) the affidavit has not been filed either by the detaining authority or the Additional Chief Secretary, Home, or any other person who is directly connected with making the order and ordering the detention. The affidavit has been filed, as already stated by a lower rung officer viz. Dr. A. G. Sofi, Undersecretary in the Home Department, who discloses in the affidavit that, the basis of his affidavit averments is the official record alone. In such circumstances, when the respondents act in a casual manner and mechanical fashion, without taking necessary care in following the rule nisi in a Habeas Corpus matter, one only laments. The Supreme Court in case Mrs. Tsering Dolkar v. Administrator, U. T. Delhi AIR 1987 SC 1192 : 1987 Cri LJ 988 has observed (at page 990 of Cri LJ) :. Mr. Jethmalani has rightly commented that when the allegation was that there was no application of mind in the making of the preventive detention, the return should have come either from the detaining authority or a person who was directly connected with the making of the order and not by Shri Tripathi who filed the affidavit on the basis of the record of the case.

24. With the result and for the aforesaid reasons, the order of detention is adjudicated and held as invalid and illegal. The jail authority, or any other person, in whose charge the person of the detenu has been given for custody and detention, is herewith directed to release the detenu Ghulam Mohiuddin Nagar S/o Abdul Rehman Nagar R/o Dorpora Lolab Kupwara, forthwith, provided detenu is not involved in any other substantive offence or case.

25. Petition is disposed of accordingly. Copy of order shall be handed over to the petitioner free of costs.