Mehraj-ud-din Sheikh vs State of J & K

The petitioners brother, Mehrajuddin Sheikh, was arrested on 1 161998 by the police Li the case FIR No: 80 of 1998 Police Station Maisuna,

Srinager, for the substantive offences. While he was in custody, the District Magistrate, Srinagar issued the order under section 8(2) of the J and K

Public Safety Act, hereinafter referred to as the Act, whereunder his detention for a period of ten months was directed.

The petitioner challenges the order of detention on the grounds:

i) that the procedural safeguards and constitutional rights have not been followed complied with as the order of detention and the material relied

upon and referred to in the grounds of detention having been not served to unable him to make the representation against the order;

ii) that the report of investigation having been produced against the detenu in the court of law in FIR No. 80 of 1998 P/S Maisuma under section

7/27 of Indian Arras Act and he having been granted bails, the detaining authority has failed to show its awareness about the pendency of the

criminal case against him.

iii) that the grounds of detention couched in a foreign language were not understandable and intelligible to the detenu but no translation thereof was

provided resulting m deprivation of effective representation;

In the counter filed by the detaining authority, the procedural safeguards and constitutional requirement are said to have been complied with as

the order and the grounds of detention were communicated to the detenu, with the intimation and information that he could make an effective

representation if so desired, against the order.

The detenu had vide the grounds of detention joined the ranks of militancy in the year 1990, thereafter he crossed the borders of the country to

receive weapons training in Pakistan Occupied Kashmir. After completion of the training the detenu returned to the valley. It is alleged that the

detenu resorted to the commission of heinous crimes and indulged in antinational subversive activities. The grounds of detention also suggest that

the detenu was arrested by the security forces in the year 1991 and subsequently detained under the provisions of the J and K Public Safety Act

for a period of one year. He is also shown to have been booked in substantive offences under TAD A for about six years and was finally released

in the year 1997 from Kot Balwal (Jammu) Jail, After release, the detenu is alleged to have again indulged in subversive activities. He was arrested

on 11^61998 for substantive offence(s).

The pleadings and the record go to show that having been arrested on 1161998 for substantive offences, the detenu was in custody of the

respondents on the date 481998 when the order of detention was passed, against him. The detaining authority was aware, that the detenu was

already facing trial before a criminal court in connection with the case arising out of FIR No: 80, 1998. The detaining authority has at no place

disclosed it as to what were the reasons which had prompted the resort to preventive detention of the detenu who was already prevented, by his

custody for substantive offences, from indulging in prejudicial activities. Non disclosure of these grounds which prompted or necessitated the

passing of the impugned order makes out that the detaining authority did not apply its mind to the facts or the circumstances in which the

satisfaction based on application of mind, that saves the order of detention from being struck down; but where subjective satisfaction is not the out

come of application of mind, then the order of detention becomes invalid. I am fortified to take this view by the decision of the Apex court

reported as AIR 1989 SC 2265 and AIR 1989 SC 2274, were in it has been pointed out the nonapplication of mind is available from the absence

of the reasons or the grounds in the detention order that warranted imposition of preventive detention on a person who is already in punitive

custody and is facing trial.

Assuming that the detaining authority had before it such material, sufficient in nature, which necessitated the passing of the impugned order

against the detenu who was already in custody, yet it was required of the detaining authority to have not only communicated the grounds of

detention immediately after the execution of the order of detention to the detenue, but is was his duty also to inform him of his right of making the

representation against the order. Section 13 of the Act mandates that when a person is detained in pursuance of a detention order, the authority

making the order shall as soon as may be, but ordinary not later man five days and in exceptional cases, that too for reasons to be recorded in

writing, not later than ten days from the date of detention, communicate him the grounds on which the order has been made and shall further offer

him the earliest opportunity of making a representation against the order. This statutory provision is the reflection of the constitutional requirement

enshrined in Article 22(5) of the Constitution of India.

It is thus the date of detention which is relevant to determine whether the compliance to the requirements of Section 13 have been met. The

detenue in this case was already in custody of the respondents, when the order came into existence on 04/08/1998. The order was executed as

per counter after about five weeks i.e. 10/09/1998. It is not in the first place explained nor is it discernible from the record as to what had

prevented the execution of the order, immediately after it was passed, against the person who was already in custody. Now assuming that this

lapse does not tell upon the validity of the orders, yet there is another feature which attracts attention. The order was approved by the Government

on 06/ 08/1998. It was executed 10.9.1998 and it was on the later said date that the grounds were allegedly communicated to the detenue. The

grounds having been communicated to the detenue on 10.9,98 the information to the detenue as to his right to file representation against the order

would become meaningful only after he had received the copy of the grounds of detention. It is, however, intriguing to note from the record that it

was on 4.8.1998 i.e. more than a month prior to the communication of the grounds of the detention, that the detaining authority came to inform the

detenue that he had the right to file a representation against the order of detention. This is no compliance to the mandate of law as the obligation to

inform the detenue of his right to file representation against the detention order can be said to be discharged only after the grounds of detention are

communicated to him. Any information right of representation before the grounds are communicated is a farce and of no consequence as the

detenue cannot make a representation against the order in the absence of the grounds of detention having been communicated to him. The right to

file effective representation against the order is substantially infringed by the lapse committed in not informing the detenue of his right of

representation alongwith the communication of grounds of detention. Deprivation of the right of representation thus violated the requirements of

law. It is on this ground also, that the order of detention has to be struck down

There is yet another aspect which cannot be lost sight of. The detenu's specific plea, as projected in the petition, is that he is an illiterate person.

This is not specifically denied anywhere. It is thus to be presumed that what is not denied or refuted is factually correct. It is thus held that the

detenu being an illiterate person could not have either been able to read or understand the contents of the grounds of detention, where about he

had a right to file a representation before the Government. The petitioner's case is that the grounds of detention being in English language, it was not

readable and intelligle to him nor was arty transcription or translation thereof provided to him, nor was he made to understand the contents of the

grounds of detention. The result projected is that he has been deprived of the Constitutional safeguard of making an effective representation against

the order.

9 Here in this case, the detenu is illiterate. The grounds of detention are in English. It is not pleaded, matchless shown exfacie, that any translation

transcription of the grounds of detention (sic.) provided to the detenu, this not shown as to who was the person the authority who had readover

and explained the grounds of detention in the language understood by the detenu. The question of no prejudice having been caused by

noncommunication of the grounds of detention as pleaded and argued shakes the conscience as at least the authority who has sweared to the

correctness of the reply counter must be presumed to know that the purpose of Article 22(5) of the Constitution will be frustrated if the grounds of

detention ate not communicated to the detenu. The mode of communication of the grounds of detention is well explained by the apex court in case

reported as (1990) I SCC 568.

On the grounds as indicated above, 1 have no hesitation to subscribe to the contention that the grounds of detention having been not

communicated the detenu got disabled to make an effective representation against the impugned order. The mandate of Article 22(5) of the

Constitution of India has thus been disobeyed whereon the impugned order cannot be allowed to stand. Infringement of this constitutional right, is

itself a sufficient ground to struck down the order of detention.

For the reasons aforesaid, this petition is allowed and (he order of detention bearing No: DMS/PSA/78 dated: 04/08/1998 is hereby quashed

and the respondents are directed to release the detenu forthwith if not detained in any substantive offence(s).