Mohd. Shaban Chopan vs State and Another

Y.P. Nargotra, J.—The detenue was in custody of the police since 4.5.2002 in connection with F.I.R. No. 46/2002. The detaining authority

passed detention order u/s 8 public Safety Act on 23.5.2002 under No. DMS/PSA/25 for preventive detention of the detenue for preventing him

from engaging in activities prejudicial to the security of State. Pursuant to the detention order the detenue was taken into preventive custody on

29.5.2002.

By this H.C. petition under Article 226 of Constitution of India read with Section 103 of Constitution of Jammu and Kashmir, the detention

order is being challenged on various grounds. One of the grounds urged is that the grounds of detention being .in English were not explained to the

detenue in Urdu & Kashmiri the languages the detenue only understood being an illiterate and, therefore, his right enshrined in Article 22 of the

Constitution has been violated. Ld. Counsel has relied upon the case reported in Smt. Raziya Umar Bakshi Vs. Union of India and Others, .

In this the apex court held:-

This allegation seems to have been denied by the respondents in para 14 of the affidavit of Mr. P.M. Shah, on behalf of the detaining authority,

where he stated that the grounds were explained to the detenue in the language known to him. It was averred in para 5 that one Mr. A.K. Sharma,

Police Inspector, C.I.D. (Crime Branch), Ahmedabad had explained to the detenue the order of detention and the grounds communicated to him

on January 30, 1980. This affidavit, in my opinion, is wholly inadmissible in evidence. If it was a fact that Mr. Sharma had personally explained the

grounds to the detenue then the respondents should have filed an affidavit of Mr. Sharma himself to show that he had actually explained the

contents of the grounds to the detenue by translating the same in the language which he understood. No such affidavit is forthcoming. No

contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated the grounds to the detenue. The service

of the ground of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not

known to the detenue, unless the contents of the grounds are fully explained and translated to the detenue, it will tantamount to not serving the

grounds of detention to the detenue and would thus vitiate the detention ex facie.

In this view of the matter, the detention becomes invalid on this ground alone. I would however like to observe that in cases 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 detail at the stage when Habeas Corpus petition is filled 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 translation. We have pointed out in several cases that the courts frown on detention without trial and insist on the strict

compliance of the constitutional safeguards enshrined in Article 22(5) to the letter or the law, because a non-compliance of these safeguards would

itself be sufficient to vitiate the order of detention. Despite our repeated observations, unfortunately, however the detaining authority continues to

pass orders of detention in a casual or cavalier fashion with the result that the courts are compelled to release the detenues. We hope trust that in

future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the

Constitution, more particularly because the liberty of the subject is in peril.

The detaining authority in his counter affidavit has replied the allegation as follows:--

The grounds of detention were read over and explained to the detenue in Urdu, and Kashmiri languages when the detention order and grounds

were supplied to the detenue and made him to understand the contents thereof by ASI Gh. Ahmad No. 02/KP of P/S M.R. Gung no prejudices is

caused to the detenue. The Govt. is within its powers to confirm the detention order.

Thus, the stand taken by the detaining authority is that A.S.I. Gh. Ahmad explained the grounds of detention to the detenue in Urdu and

Kashmiri. However affidavit of said A.S.I, has not been filed. I have perused the record made available by Ld. Counsel for the respondent. In the

record there is a photo-copy of/certificate of said A.S.I, to that effect when the Ld. Counsel was asked to produce the original he expressed his

inability to do so. The unauthenticated photo-copy does not deserve to be noticed. Therefore, neither there is affidavit of said A.S.I, nor any

reliable document available on record to substantiate the fact that A.S.I. Ghulam Ahmed had actually explained the grounds of detention to the

detenue in his own language. Bare statement of the detaining authority in this behalf is of no consequence as has been held by the Hon'ble Supreme

Court in the above quoted authority. The detention order thus cannot be sustained being violative of mandate of law on the aforesaid ground alone.

For the aforesaid reasons the detention order No. DMS/Misc/46-50 dated 23.5.2002 is quashed and the detenue namely Mohamad Shaban

Chopan S/o Ghulam Rasool Chopan R/o Kunan Baba Gund Bandipora be released forthwith, unless required in any other case.