Khursheed Ahmad Lone vs State & ors.

On the previous date of hearing it was projected by the learned counsel for the petitioner that the detenue was in judicial custody as he was

arrested on 08.09.2017 in connection with case FIR No. 228/2017 P/S Anantnag, which was denied. A direction was issued that concerned SSP

shall file affidavit, which has been filed wherein it is made clear that the detenue was involved in connection with the said FIR No. 228/2017 and

during the investigation on verification he was arrested on 26.09.2017; thereafter was on remand but his activities necessitated his preventive

custody as a result whereof the detention order was passed.

Learned counsel for the petitioner would submit that the detenue has not been supplied the material for making effective representation. The

grounds of detention have not been explained to him in the language he understands. According to him even though he is illiterate but is able to

understand Urdu and Kashmiri languages.

The detention records as produced by learned AAG reveals that the executing officer in compliance to the order of detention, the grounds of

detention(two leaves) have been read over to the detenue in English language but explained to him in Urdu and Kashmiri languages which he fully

understands. In support whereof his signature has been taken.

Confronted with the said position, learned counsel for the petitioner rightly pointed out that the requirement was to supply translated copy of the

grounds of detention to the detenue. In addition thereto the officer who had read over the grounds of detention to the detenue was required to file

affidavit so as to make position clear that actual grounds of detention were supplied to the detenue in Urdu or Kashmiri language; supporting this

submission has placed reliance on the judgment rendered by the Hon''ble Apex Court in the case of Razia Umar Bakshi vs. Union of India and ors.

1980 SCC(3) 1398.

The position of the detenue being illiterate or not able to understand English language is not denied. The mention of words ''grounds of detention

were explained to the detenue is denied by the detenue; no affidavit has been filed by the officer who has explained the grounds of detention to the

detenue. In the reported judgment similar position arose for consideration and it has been held that:-

No contemporaneous record has been produced to show that Mr. Sarma had actually explained or translated the grounds to the detenu. The

service of the grounds 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"".

In the said judgment it has also been noticed that in case of Habibandhu Das vs. District Magistrate, Cuttak & Anr. (1969(1) SCR 227), it has

been clearly 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.

Strict compliance of the constitutional safeguards and Article 22(5) of the Constitution is always emphasized because non-compliance thereto

would itself be sufficient to vitiate the order of detention. Learned AAG was pointedly asked to show anything contrary as to what has been

projected or what has been laid down by the Hon''ble Apex Court. Records disabled him to do so.

Once there is infraction of constitutional right, the action under challenge becomes unsustainable. Detenue has been noticed to be indulged in the

activities prejudicial to the security of the State. By now he has been in the preventive custody for nearly six months. Order of detention of the

detenue, is therefore, quashed; his further custody shall be governed in accordance with the directions as shall be issued by the court of competent

jurisdiction relatable to FIR No. 228/2017 P/S Anantnag.

Detention record as produced by learned AAG is returned back to him.

Petition disposed of as above.