Naseer Ahmad Sheikh vs Additional Chief Secretary Home and another

Raina, J.—This letters patent Appeal is directed against the order dated: 741998 rendered by the learned single Judge of this court in

Habeas Corpus Petition no. 520of 1997.

The factual matrix wherefrom the impugned judgment stemmed needs a notice.

Detenue Naseer Ahmad Sheikh son of Abdul Aziz Sheikh resident of Nowhatta, Malik Sahib, Srinagar got arrested on 951997 in FIR No. 68

of 1997 for the offenses under section 10 CLA Police Station M.R. Gunj Srinagar as it was alleged that he had resorted to such prejudicial

activities, prior to his arrest, as endangered the security of the State in as much as he had fired in June 1993 on the security forces banker at

Bohrikadal, Srinagar and yet again resorted to firing on patrol vehicle of the security forces at Nowhatta in 1994. It is said he along with other

associates resorted to an armed attack on a congress leader at Muniwar, Srinagar 1995

It was on these prejudicial activities that the District Magistrate having noted (hat the detenue was already in custody, issued the order of

detention under his no. DMS/PSA/90/97 dated: 961997, whereby detenue's preventive detention for twenty four mouths came to be ordered.

The detention order came to be challenged in the habeas corpus petition (supra) on the grounds that it suffered from the infirmity of lack of

application of mind by the detaining authority as the detenue being already in custody, no reason or grounds were spelt out to clamp preventive

detention; that the procedural safeguards and the constitutional guarantees, qua the preventive detention, having been observed in breach, rendered

the order of detention invalid; that the grounds of detention were couched in the language that was not understood by the detenue and no

translation/transcript thereof having been provided to him in the language which he could understand, prevented him from making any

representation against the order.

The learned single judge repelled the contentions and held that no ground was made out to quash the detention order.

The matter of the facts is that the detenue was arrested on 951997 for the substantive offense as he was booked in FIRNO.68 of 1997 P/S

M.R.Gunj, Srinagar. The detaining authority did disclose his awareness of this fact in the grounds of detention, but surprisingly neither in the

grounds nor in the order did the detaining authority spell out these compelling reasons or the circumstances which prompted him to clamp

preventive detention on the detenue notwithstanding that he had already been, by his detention for substantive offence, prevented from acting in any

manner prejudicial to the security of the state. This aspect appears to have been highlighted before the learned Single Judge. The learned Single

Judge while relying on the observations made in SuryaPrakesh Sharms's case (1995 AIR SCW \ 841), came to hold that the ratio of the judgment

was that the detaining authority must be aware of the fact that the detenue is already in custody at the time of making the order of detention and

cogent grounds must support the order of detention that if released on bail, he may again indulge in the activities attributed to him. We do agree

with the view of the learned judge that an order of detention can bee passed against a person who is already in custody and that the detaining

authority must disclose the awareness of such custody in the order but the ratio of Surya t'rakash Shanna's case, supra, is not only that the

awareness of preexisting custody must be disclosed by the detaining authority, but it further requires that the grounds of detention must show that

there are compelling reasons justifying such detention despite the fact the detenue is already in detention. The ""compelling reasons"" have been

explained to mean in the context of making the order of detention of a person already in custody that there must be cogent material before the

detaining authority on the basis of which it may be satisfied that the detenue is likely to be released from custody in the near future and secondly

that taking into account the nature of his antecedental activities; it is likely that after his release from custody, he would again indulge in such

activities as may endanger the security of the State. To put in differently, the satisfaction of the detaining authority in respect of detention order

passed against a person who is already in custody must be based on twin considerations; namely (i) that the detenue was likely to be released from

custody in the near future and (ii) that in the light of his antecedental activities, he was likely to resort to prejudicial activities. We are unable to

subscribe to the view taken by learned judge that the grounds of detention need no specify in express terms the detaining authority's satisfaction

that there were chances of the detenue, arrested in other offence, to get released on bails and resort to such activities that endanger the security of

the State.

The authoritative pronouncements on the topic make it incumbent on the detaining authority to disclose in the grounds of detention the reasons

for satisfaction as to the likelihood of the detenue, already in custody, being released there from and his likely to resort to the prejudicial activities

after such release. The detaining authority has to record awareness of both the facts, which of course are dependent on his subjective satisfaction

based on the record made available to him.

Here in the case, the detenue was already in custody. This awareness is disclosed in the grounds of detention as the detaining authority has

expressed that the detenue was arrested on 951997 for the substantive offence and was in continued detention when the detention order was

passed. The detaining authority has not spelt out reasons, much less compelling in nature, to justify the preventive detention when the detenue was

already in custody. It is therefore, rightly contended that the detaining authority did not apply its mind to the material placed before it while passing

the impugned order and thereby the order has become invalid.

The detenue was as noted here before, in custody when the detention order was passed on 961997. It is given out in the counter that the order

of detention and the grounds thereof were served on th4e detenue on 30.6.1997. It is averred on the other hand that it was on 961997 itself that

the detenue was informed of his right to make a representation to the Government against the order. The fact mat the grounds of detention were

served on the detenue on 30.6.1997 leads to the necessary inference that information of his right of making the representation against the order

weeks prior to the communication of the grounds is a mockery as communication of grounds of detention ought to have preceded the information

to the detenue of his right to make the representation against the order

This aspect apart, the detenue being already in custody and the order of detention having been passed on 961997, it is nowhere explained as

to what were the circumstances/reasons for not communication the grounds of detention till 30.6.1997.

Be that as it is, it has to be noticed that the execution of the order on the detenue, who was already in custody, could at best change his

lodgment. The date of execution of the order must invariably in such a situation synchronize with the date of the order unless of course grounds are

disclosed to justify otherwise. The communication of the grounds of detention must, therefore, immediately follow the date when the detention

order is executed or presumed to be executed. Section 13 of the Public Safety Act prescribes the time frame during which the grounds of

detention are to be communicated to the detenue. It mandated that when a person is detained in pursuance of a detention order, the authority

making the order shall as soon as may be, but ordinarily not later than 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 to 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.

We fail to comprehend as to how could in view of this legal requirement be it held that the procedure adopted was not violative of the mandate

of section 13. The order having been passed in respect of the detenue who was already in custody on 961997, the grounds of detention ought to

have been communicated at the latest by 1961997.The fact of the matter is that the grounds of detention were served on the detenue on 3061997.

There has thus been the clear and utter nonobservance of the mandate of section 13of the Act. This breach o the statutory requirement is itself

sufficient to render the detention order invalid.

The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the

detaining authority by the concerned SSP. Nowhere is it pleaded, muchless shown, that the copy/copies of these reports of the police on which the

detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective

representation against the order.

This aspect apart, there is another fact that emerges from the counter.

It is pleaded in the counter that the contents of the grounds of detention were explained to the detenue in the language, which the fully

understood. The grounds of detention are couched in the English language. It is not even mentioned as to who was the person/authority which had

read over and explained the grounds of detention in the language the detenue understood, the mandate of law being that the grounds have to be

communicated to the detenue and that the detenue must be made to understand the groundson which the detention order is based. It is observed in

kmt. Kaziya umer baksm vs. Union of India and others case, (AIR 1980 SC1751) by the Apex court: ""...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 assertion 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.

Yet again in case AIR1959 sc 43, it came to be 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.

The thrust of the law, as pre pounded by judicial pronouncements, is that the grounds of dentention have to be communicated to the detenue in

terms of section 13 of the Act so as to enable him to make a representation against the detention order. The denial of the right by

noncommunication of the grounds in the language which he understands leads to the deprivation of the detenue's right to make the representation

which is guaranteed under the constitutional provisions. It is in this context pertinent to refer to the averement made in para 8 of the Habeas Corpus

petition where in the detenue has specifically pleaded that his right of making representation has been prejudicially be effected because he was not

made aware of the grounds of detention in the language which he understood nor was any translation of the grounds in Urdu or Kashmiri provided

to him. This averement is denied in an evasive manner by the respondents on whose behalf, the under secretary to Government Home Department.

Dr. A.G;Sofi, has filed the affidavit. The filing of the affidavit by the Under Secretary is of no assistance as neither the detaining authority nor the

authority which is said to have read over and explained the grounds of detention to the detenue has come forward to swear that the grounds were

explained and read over to the detenue in the language which he understood. Presumably no translation or the transcript of the grounds was

provided to the detenue. It is, therefore, open to be contended, successfully, that constitutional right of filing representation against the order has

been violated/infringed as the grounds of detention were not communicated to the detenue.

Bear perusal of the grounds of detention go to show that the detenue was arrested on 951997 as indicated in FIR NO.68 of 1997 P/S, Supra,

for his prejudicial acts which he had committed in the years 1993,1994 and 1995. No prejudicial act or omission is attributed by the grounds to

the detenue after the year 1995. The alleged prejudicial acts have had no proximity in time to the day of detention order. It is therefore, rightly

contended for the appellant that the grounds of detention besides being vague, the attributed acts are not proximate in point of time to the making

of the detention order. The order is thus rightly said to be invalid.

For the reasons above said, we find ourselves unable to agree with the conclusions reached by the learned single judge. We allow the appeal,

setaside the order of the learned judge and quash the detention order as being invalid, with the direction to the respondents to set free the detenue

forthwith, if not detained for any other substantive offence (s).