Mohammad Farooq Ahanger vs State of J. and K. and Another

Syed Bashir-Ud-Din, J.—Mohammad Farooq Ahanger has been detained by District Magistrate, Srinagar, respondent No. 2 on 3-5-1997

for a period of 12 months under the provisions of J, & K. Public Safety Act. This order of detention (DMS/PSA/ 36/97, dated 3-5-97) is

challenged in this writ petition by the detenu through his father on following grounds:--

That the detenu has not been supplied the order of detention, grounds thereof and material referred to in the grounds of detention. He has not been

informed of his right of making a representation against the order to the Government. The detenu has not been made to understand the grounds of

detention in his own language to enable him to make an effective representation. The detenu has been involved in some criminal cases which are

pending investigation and before his detention he had been taken in custody in a criminal case in which he had not even applied for bail. The

impugned order of detention is illegal and the detaining authority has not applied its mind to the facts and circumstances of the case.

The respondent No. 2 has filed counter. In counter, it is asserted that the detention order and the grounds of detention served to the detenu

were explained to the detenu ""in the language which he fully understood"". Etetenu was also informed of his right to make representation. It is

admitted that at the time when detention order was passed, the detenu was already in custody under punitive laws, but on strong apprehension of

getting released on bail he was taken into preventive custody under the Public Safety Act and his activities were highly prejudicial to the security of

the State. The case of the detenu was referred to the Advisory Board on 5-6-1997 which gave its opinion on 3-7-1997 and the detention order

was confirmed by the Advisory Board on 11-7-1997.

From record it emerges that the order of detention and grounds of detention were served on the detenu not by respondent No. 2 who has filed

the counter, but by some other official/ officer through Senior Superintendent of Police, Srinagar. Neither the receipt nor any other record is

produced to indicate the service of grounds on detenu. Even the Superintendent of Police whom the execution of wan-ant and service of grounds

was entrusted has not come forth to file an affidavit. Failure of the State to supply the grounds of detention is not countered or refuted in the

counter-affidavit. Mere mention in the counter-affidavit (after the petition is filed) that the grounds were read over and explained to the detenu in

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

understood. Moreso, when neither the receipt allegedly obtained in token thereof nor the affidavit of the authority or officer who actually served the

grounds has been filed.

The service of grounds of detention on the detenu is a very precious constitutional right. In Smt. Raziya Umar Bakshi Vs. Union of India and

Others, , it has been laid (at P. 1752 of AIR):--

...where the detaining authority is satisfied that the grounds axe 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 Hadibandhu Das Vs. District Magistrate and Another, , it has been observed that, mere 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 this case, supply of the translation or transcript of the grounds is not averred in the counter-affidavit. On examination of the affidavit, it

appears mat the counter-affidavit has been prepared mechanically. It is a carbon copy with particulars of the detenu, Order No. and dates and

figures filled up subsequently. The affidavit filed is quite unsatisfactory and does not inspire confidence. It appears more an act in routine rather than

'a conscious effort and well considered act'. Even so, the provision of Section 15 of the Public Safety Act appears to have been violated insofar as

the case of the detenu has not been referred to the Advisory Board within four weeks from the date of detention order. It has been referred to the

Board after the statutory period.

For the aforesaid reasons, the detention of Mohammad Farooq Ahanger (detenu) is quashed. The detenu shall be set at liberty and freed from

detention authorised by the Detention Order No. DMS/PS A/36/97, dated 3-5-1997 forthwith, provided detenu is not involved in any other

substantive offence. Petition is disposed of accordingly.

Copy of order shall be handed over to the petitioner free of costs.