Khurshid Ahmad Sheikh vs State of J & K

The brother of detenue of his counsel M/s Z.A.Lone and Mehraj Azim, have preferred two Habeas Corpus petitions Corpus petitions

challenging the detention order No.DMS/PSA/45/97 dt: 9.6.1997 of District Magistrate Srinagar providing for preventive detention of one

Khurshid Ahmad Sheikh, for a period of 15 months. As in both petitions common question of law and fact is involved, these are taken together

and infact both form part of one and the same matter viz detention of said Khurshid Ahmad Sheikh. The order of detention is challenged on the

following grounds:

That the detenue has not been served with the grounds of detention, order of detention and the material referred to in the grounds of detention.

The detenue has not been informed of his right to make representation against the order to the Government. Instead his brother has been asked to

make representation against the order. The detenue has not been supplied grounds of detention in the language which he understood namely urdu

or kashmiri. The grounds of detention are vague, indefinite, unreal and ambiguous. The case suffers from nonapplication of mind. The case has not

been referred to the Advisory Board and the Board has not tendered its opinion thereto. The order of detention has not been confirmed by the

Government within statutory time period.

Respondent No.2 District Magistrate Srinagar has filed counter affidavit and counsel for the State Mr. R.A.Khan, has tendered statement that

this counter be read as reply on all counts pleaded in the petition to challenge the order of detention.

The detention of Khurshid Ahmad Sheikh under impugned order is admitted. Khurshid Ahmad Sheikh (detenue) is stated to have been take in

preventive custody on 7.7.1997.

It is further averred that the contents of detention warrant/order were read over and explained to the detenue in the language which he

understood, as is evident from his receipt given by the detenue in this behalf. Detenue was informed of his right to make representation. The

detenue is stated to have been taken in custody on account of activities referred to in the grounds of detention, which are highly prejudicial to the

Security of the State. On the date when the detenue was taken into preventive custody, he was already in custody under punitive laws. But on the

apprehension that he may be released on bail, he was detained under Public Safety Act. It is further asserted that matter has been referred to the

Board and the Board has given its opinion followed by confirmation of order by the Government. All actions have been taken within the statutory

period(s) prescribed by Public Safety Act.

It is seen on close scrutiny of the petition and the counter as also on hearing the counsel for the parties that the allegations of nonsupply of the

material and documents including FIR, referred to in the grounds of detention (AnnexureB) have not be refuted. It is not also denied that the

transcript or translation in Urdu or Kashmiri did not accompany the grounds of detention and was not furnished to the detenue. From record it

transpires that one Rashid Ahmad, ASI of Police Station Rajbagh has executed the warrant and has recorded on photostat copy that the warrant

was read over and explained to the detenue ""in urdu as well as in Kashmiri/English language which he understood fully"". The endorsement bears

name of detenue in Urdu. The allegations of the detenue that he was not served with the detention order, ground of detention and the material

referred to in the ground of detention and that he was not informed of his right of making effective representation remain uncontroverted. The

detaining authority has neither executed the warrant nor supplied any other document. So his affidavit on that score would not suffice. Besides, it is

seen from affidavit that the counter affidavit is a carbon copy of some affidavit in which title, name, dates, numbers and figures have been filled up

subsequently. It does not appear to be an outcome of application of mind. It appears to have been executed mechanically in a routine matter. This

practice merits to be deprecated. Counter affidavit in any case is not at all satisfactory and sufficient to counter the allegations made in the petition.

Even in this unsatisfactory counter the following assertions merit to be taken note of:

.....while reading over an explained to him the contents of detention warrant in the languages, which he fully understood, as it is revealed by the

executed coy of detention order itself, on which the detenue has also put his signature, which means that he has fully understood it. The grounds of

detention were served to the detenue and its contents were also read over and explained to him the language, which he fully understood, as it is

evident from the receipt given by the detenue in this behalf........

Mere mention in the counter affidavit after the petition is filed that the grounds were read over and explained to the detenue in the language

which he fully understood, is not sufficient to show that the grounds were actually served to the detenue in a language which he understood.

Moreso, neither receipt allegedly taken thereto nor the affidavit of an official or officer who actually served the grounds has been filed. It cannot be

gleaned that the service of grounds of detention on the detenue is constitutional right.

In Smt. Raziya Umar Bakshi Vs. Union of India and others case, AIR 1980, S.C. 1751, it has been held "".... 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.

In AIR 1969 S.C.43, it has been observed that, more oral explanation of an order without supplying him a translation in a script or language which

the detenue understood amounted to a denial of right of being communicated the grounds.

In this case supply of the translation or transcript of the grounds of detention has not been averred in the counter affidavit. The affidavit as

already observed, is a carbon copy drafted mechanically with particulars of the detenue, order number and dates and figures filled up subsequently.

It does not inspire confidence. The counter reveals that provisions of Public Safety Act have not been applied in so far as the case of the detenue

has not been referred to the Advisory Board within four weeks, from date of detention order. It appears to have been referred beyond the date.

Even with regard to the date when Advisory Board gave its opinion, there appears over writing.

For the aforesaid reasons, the detention is held invalid. With the result that impugned order is quashed and the detenue shall be set at liberty

and freed from custody, forthwith, unless required in any other substantive offence.

Both Habeas Corpus petitions stand disposed of copy of order shall be handed over to the detenue free of costs.