Mohammed Irfan Khan vs Addl. Chief Secretary, Home and Another

Syed Bashir-Ud-Din, J.—Mohammad Irfan Khan has been detained u/s 8 of the J. & K. Public Safety Act under Order DMA/PSA/138

dated 22-7-97 of District Magistrate, Srinagar, thdre Respondent No. 2. This order of preventive detention of petitioner is challenged in this writ

petition on following grounds :-

That the detenu has not been served order of detention. He has not been supplied even the material referred to in the grounds of detention. He

was not even informed that he has a right of making representation against the detention to the Government, by these acts of omissions, the

deponent has been prevented from making effective representation against the detention to the Government. Further the grounds of detention

supplied to the detenu were not understood by and intelligible to him. The detention grounds were in English and not translated or accompanied by

a transcription in Urdu or Kashmiri, thereby he has been prejudicially effected. Copy of FIR No. 190/97 of Police Station, Shergari referred to in

the grounds of detention has not been supplied to him. The petitioner's case has not been referred to the Advisory Board within the prescribed time

period. The Board has not given its report and he has not been produced before the Court. His detention order has not been confirmed. The order

of detention has been passed while the petitioner was already in custody of the respondents. Simultaneously he has been shown arrested in the

substantive offences as well as under preventive detention. The petitioner's fundamental rights guaranteed under Article 22 of the Constitution has

also the procedural safeguards prescribed by the Jammu and Kashmir Public Safety Act have been violated.

Respondents have filed counter-affidavit. The counter-affidavit has been sworn by Dr. A. G. Sofi, Under Secretary with the Home Department.

It is admitted that the petitioner has been initially arrested on 5-5-1997 in FIR No. 190/97 u/s 7/27 IAA of P/S Shergari, Srinagar. But, however,

as the State had apprehension that the petitioner may be released on bail he was detained under the Public Safety Act, to prevent him from acting

in any manner prejudicial to the Security of the State. The detention order was passed on 22-7-997 by the District Magistrate, Srinagar and the

detenu was taken in custody pursuant to the detention order on 6-9-1997. The detention order was read over and explained to the petitioner in the

language which he fully understood and in lieu of which he put signature on a copy of detention order. The grounds of detention were served on

him on 6-9-1997 and the contents thereof were read and explained over to him in a language which he understood. The detenu was informed of

his right to make representation to the Government on 22-7-1997. The case of the petitioner was referred to the Advisory Board. The Board

tendered its opinion and submitted report to the Government and the Government confirmed the detention of the petitioner.

I have heard counsel for the parties. From the counter it is seen, that the respondents have not refuted the petitioner's allegations that detenu was

not served with material referred in the grounds of detention and that the order of detention and grounds therefore were not explained to the

petitioner in the language which he understood. The detenu has been prejudicially affected by not being informed of his right to make representation

against the detention to the Government, is equally not refuted in the counter.

In Smt. Raziya Umar Bakshi Vs. Union of India and Others, , 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 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 State of Bihar, etc. Vs. Kapil Singh, etc., at page 277 (of Cri LJ), it has been observed that, mere oral explanation of an order without

supplying him a translation in a script or language which the detenue understood amounted to denial of right of being communicated the grounds.

It is also made out on record that the petitioner was arrested on 5-5-97 in a regular case registered at Police Station, Shergari. While he was

under custody in this case, the order of detention was passed about 2 1/2 months thereafter on 27-7-97 and yet the petitioner was shown to have

been taken in preventive detention about l 1/2 months thereafter on 6-9-1997. There is no explanation on record to show that why so much of

delay was caused in executing preventive detention warrant/order when the petitioner was all along in the custody of and with the respondents. No

attempt has been made to clear the matter and the matter is encompassed in doubt.

The grounds of detention Annexure-P1 reveal that the report of S.S.P., Srinagar is in fact the basis of this detention order. The incidents and the

arrest of the petitioner in the FIR are indicated. Though the report governing the incidents and the FIR form the basis for detention, neither the

copy of the report of the S.S.P. nor the copy of FIR or any other documents governing the incidents is shown to have been furnished to the

detenu. Non-furnishing of these material documents is not even refuted by the respondents. It appears that the petitioner is positively disabled from

making effective representation against the detention to the Government, because of failure of respondents to supply the necessary material

referred to in the grounds of detention as also inability of respondent's to effectively communicate the order of detetion and grounds of detention to

detenu. Even, the petitioner's allegation that he was not informed of his right to make representation is not specifically and directly refuted by the

respondents.

For the aforesaid reasons, the order of detention is found and ruled invalid. With the result that the order of detention is quashed and set aside.

The detenu shall be set at liberty and freed from detention authorised by the detention order dated 22-7-1997 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.