State of J & K vs Mohd.Ashraf Rather

Bhawani Singh, Chief Justice.

Admit.

Notice accepted by Shri G.N.Hagroo. Heard finally.

Shri G.N.Hagroo, Advocate, submits that parentage of the detenue has been wrongly recorded in the writ petition. In fact the detenue Mohd.

Ashraf Rather is son of Ghulam Rasool Rather and not Abdul Rashid Rather as mentioned in the petition and in the judgment of learned Single

Judge.

Shri M.I.Qadri, Sr. AAG, admits the position and submits that what is being stated by Shri G.N.Hagroo, is borne from the record of the case and

appeal has also been filed on that basis. Consequently, the prayer is allowed and cause title of the Habeas Corpus Petition and the Judgment be

read as such. Necessary correction be made by the Registry.

Now we proceed to deal the case on merits.

This Appeal is directed against the order of learned Single Judge dated May 22,1998 quashing the detention passed against the detenue by the

Appellant. Some material facts of the case are narrated.

Mohd. Ashraf Rather, was detained by the District Magistrate, Anantnag through detention order No. F68/DMA/PSA/Det/ 97/22728 dated

16.05.1997 under section 8(2) of the Jammu and Kashmir Public Safety Act, 1978 for a period of twenty four months. This order was executed

on 19.05.1997. Thereafter, his case was placed before the Advisory Board, which confirmed it on 07.07.1997. Aggrieved by the detention order,

detenue has challenged this order in this Court. By order dated May 22,1998, detention has been set aside and detenue ordered to be released

from preventive detention forthwith. Appellant has challanged this order by way of this appeal.

Shri M.I.Qadiri, Senior Additional Advocate General, contends that Single Judge has committed an error by recording that the detention order

is dated 08.05.1997 and since the same was served on 19.05.1997, it become ineffective since it was required to be served within ten days.

Learned counsel further contended that the order was served within ten days, therefore, the finding recorded by the Single Judge is liable to be set

aside.

With a view to appreciate this contention, we perused the detention file. We find that order of detention was passed on 18.05.1997 and it was

executed on 19.5.1997 by effecting the service on the detenue. Therefore, the finding of the learned Single Judge, that it was served ten days after

the issuance thereof, is not correct and the contention raised by Shri M.I.Qadri, Sr.AAG, is accepted.

Next it was contended that, grounds of detention were provided to the detenue and the same were explained to him in Urdu and in English.

Therefore, the contention that he was informed of the detention order and not served with the same alongwith the grounds of detention is not

correct, since they were duly supplied to him. This fact has been admitted by the detenue, Shri Qadri, Sr. AAG, contends.

Mr. G.N.Hagroo, learned counsel appearing for the detenue has opposed the submissions made by Mr. Qadri. According to the learned

counsel, assuming that the detenue received the detention order and grounds of detention, based on dossier of the Superintendent of Police, that

was not enough. Statutory provisions require that grounds of detention are to be read over and explained to the detenue in the language

understandable by him. This mandatory requirement has not been complied with in letter and spirit, rendering the whole exercising of detention void

abinitio.

In Smt. Raziya Umar Bakshi Vs. Union of India and others, AIR 1980 SC: 1751, the Apex Court said:

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

known to the detenue, it will tantamount not serving the grounds of detention of the detenue and would thus vitiate the detention exfacie. In case

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 certificate to show that the grounds have

been explained to the detenue in the language which he understands. A bare statement 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.

We find from the record the receipt of grounds of detention by the detenue. With respect to the requirement of reading and explaining the same

to the detenue, in place of English, Kashmiri has been substituted, Urdu has been kept intact. Further, it has been recorded that the same were

understood fully by the detenue who has thumb marked on the document. It is attested by the Superintendent. Sub Jail, Kotebulwal, Jammu.

In para No. l of the affidavit before the Court having been filed by Shri A.G.Sofi, Under Secretary (Home) to the government of Jammu and

Kashmir, it has been stated that the grounds of detention were served on detenue on 19.5.97 and the contents of the same were read over and

explained to him in English and Urdu Languages which he fully understood and in response thereto he fixed his thumb impression. This affidavit has

been verified on the basis of personal knowledge and on the basis of official record. It is not pointed out in the affidavit who informed him that the

grounds of detention were explained to the detenue in English and urdu languages. Since, in receipt of grounds of dentention document, it is

Kashmir/Urdu. Detenue has admitted that he received order of arrest and order of grounds of dentention, but in para 3, he has stated he made

several requests to the respondents to furnish copy of the order of detention and grounds of detention in language which is understandable to him,

but the same has not been furnished, as such, he has been deprived of his constitutional right of making effective representation to the Government,

this grievance of the detenue has not been answered specifically by the Appellant in this case.

There were two alternative before the detaining authority, namely, English and Urdu. English has been substituted by kashmiri and urdu has

been retained, it is not understandable whether the grounds of detention were explained to him in Kashmiri or in Urdu or both.

In affidavit, it is stated that same were explained to him in English and Urdu, but in the document English has been scored off and replaced by

kashmiri. Therefore, the affidavit is wrong. The person who served the grounds of detention was the best person to dispose in respect of this case

by an affidavit in this court that grounds of detention were explained to the detenue in Kashmiri language or urdu or both. In the absence of this

explaination by the authority who read over and explained the grounds to the detenue, the claim of detenue in para 3 of petition is liable to be

accepted. An illiterate person can hardly understand the English of detention order. Consequently, the contention raised by Shri M.I. Qadri, has no

before and is therefore, rejected. No other point was urged by the counsel for the parties. What emerges out of the aforesaid discussion, is that the

order of learned Single Judge is confirmed for the reasons recorded herein above and the appeal is dismissed.