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Judgment
1) Noticing the activities of Showkat Ahmad Ganie (hereinafter referred to as the detenue) to be prejudicial to the security of the State, he, pursuant to order No.DMB/PSA/08 of 2018 dated 18.07.2018, has been taken into preventive custody by invoking powers under Section 8 of the J&K Public Safety Act and so has been ordered to be lodged in Central Jail, Kotebhalwal, Jammu. By the instant petition quashment of the said order is sought on the grounds referred therein.
2) Learned counsel for the petitioner firstly contended that the detenue has been disabled from making an effective representation against his detention by not supplying him the translated copies of the ground of detention which are in English language besides being in a hyper technical language which the detenue is not in a position to understand.
3) The submission appears to be forceful. It shall be apposite to quote Para 13 of the judgment in Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others", (1982) 3 SCC 440:
"Lastly, Urdu translations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly not supplied to the detenu at all and the only explanation given by the counsel for the respondents at the hearing has been that most of these documents (Urdu translations whereof were not supplied) comprised statements of accounts which had figures in English with some English words written in capital letters and some documents were in Hindi and Gujarati and the record (statements of Rekha, her sister Indi and one Jayantilal Soni, all co-conspirators of the detenu, recorded during the investigation) clearly shows that the petitioner knows English figures, understands English words written in capital letters and can also converse or talk in Hindi and Gujarati and as such the non- supply of Urdu translations of these documents cannot be said to have caused any prejudice to the petitioner in the matter of making a representation against his detention. In our view, the explanation is hardly satisfactory and cannot condone the non-supply of Urdu translations of these documents. Admittedly, the petitioner is a Pakistani national and Urdu seems to be his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfaction. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot be brushed aside as false especially in view of the fact that the same was accepted on the earlier occasion by the Advisory Board who had actually opined that failure to supply Urdu translations of grounds of detention and documents had vitiated the earlier order of detention and following this opinion respondent No. 1 had revoked the said order. Moreover, with the assistance of counsel on either side we have ourselves gone through many of these documents and statements and it is not possible to say that most of them are merely statements of account containing figures in English with English words written in capital letters. These documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Article 22(5) is clearly violated."
4) The detention records as produced suggests that contents of detention warrant and grounds of detention have been read over to the detenue in English and explained in Urdu and Kashmiri language which he fully understood, in support whereof he has affixed his signature. The grounds of detention are shown to have been read over to the detenue by SI Mudasir Ahmad but he has not filed an affidavit in support thereof, which in turn renders the detention order impugned bad. In this view, I am fortified by the judgment rendered in the case of Lallubhai Jogibhai Patel vs Union Of India & Ors reported in 1981 AIR 728,
Para 20 of which is advantageous to be quoted:
"20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan v. State of Maharashtra: and Haribandhu Dass. v. District Magistrate (AIR 1969 SC 43) (ibid)."
5) The next ground, as highlighted by the learned counsel for the petitioner, is that there has been non-application of mind while passing the impugned order. In this regard, he contended that in the grounds of detention, detenue has been shown involved in FIR No.266/2012 P/S Chadoora, FIR No.448/2013 of P/S Budgam, FIR No.38/2017 P/S Chadoora and FIR No.263/2017 P/S Budgam, however, he has already been admitted to bail in FIR Nos.263/2017, 268/2017448/2013 by the court of competent jurisdiction but it is nowhere shown as to whether the detenue in connection with said cases has applied for bail or has been released on bail. The Detaining Authority was required to make it clear as to whether in other cases detenue was released on bail or had to record satisfaction that there are reasonable and plausible grounds to believe that the detenue is likely to be released on bail in the said connected cases and on recording such satisfaction order of detention could be validly passed. Either the detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly.
6) While detaining person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Liberty of a person is to be respected as is guaranteed, same flows from the Constitution itself. It is true that if a person is alleged to be involved in anti-national/subversive activities, he has to be deterred with iron hands but for deterrence, provisions of Public Safety Act are to be strictly adhered to otherwise safeguards, both technical and substantial provided by the Act will be rendered illusory. Non-mention of the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind.
7) Similar situation has been dealt with by the Hon'ble Apex Court in the judgment reported in AIR 1987 SC 137, para 8 of which is apposite to be quoted:
"We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith."
8) Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution which is an exception to Article 21 of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person and such power shall be exercised in a manner which may not have the trappings of depriving a person of the guaranteed liberty. In short an exceptional case has to be made out for passing the order of preventing a person from acting in any manner which shall be prejudicial, in the instant case, to the security of the State but while doing so procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this connection it shall be quite relevant to quote paras 37 and 38 of the judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned "Rekha Vs. State of Tamil Nadu and anr", reported in (2011) 5 SCC 244:
"37. As observed in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha vide SCC para 5:(SCC p.27)
"5....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard."
As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee v. McGrath:(US p. 179)
"...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law".
Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience".
9) In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on the above referred grounds, therefore, other grounds projected in the petition are not required to be dealt with.
10) For what has been stated above, the impugned order of detention is unsustainable, as such, quashed. The respondents are directed to release the detenue forthwith, provided he is not required in connection with any other case.
11) Detention record be returned to be learned counsel for the respondents.