JUDGMENT
Sayed Bashir-Ud-Din, J.
1. Subject, Ishtiyaq Ahmad Shah, was detained by the District Magistrate Anantnag, Respondent No. 2, under his order No. 233/89-95 dated 23.02.2002 with a view to prevent him from acting in any manner prejudicial to the security of the State.
2. This order, passed under Section 8 of the J&K Public Safety Act, 1978, is impugned in this petition. Learned counsel for the detenu has confined his submissions to grounds of challenge, enumerated in grounds a, b, c and d of the petition memo. It is argued that, though the detenu was on bail in FIR No. 35/2002 under Section 3/7 of the Indian Arms Act, registered at Police Station, Kukernagh, yet the detaining authority has not considered this aspect of the case, which shows that the impugned order sufers from non-application of mind. It is further submitted that the detenue has not been supplied material referred to, in the grounds of detention and was also not informed of his right of representation against detention to the Government. Being illiterate, the grounds of detention were not explained to him in Kashmiri or Urdu, which language(s) he understood. Even copy of translation/transcription of the grounds, written in English was not supplied to him. All this has prejudiced him to make a meaningful and effective representation against the order of detention, thereby his right under Article 22(5} of the Constitution and Section 13 of the J&K Public Safety Act has been violated.
3. Respondents through District Magistrate Anantnag have filed Counter. In reply to Paras a, b and c, it is averred that detenu is an active member of Jamat-ul-Mujahideen organization with overt object to secede the State of Jammu and Kashmir from Union of India by waging armed war. He was arrested in FIR No. 35/2002 under Section 7/27 of the Indian Arms Act, registered at Police Station, Kokernagh on 1.3.2002. Some arms and ammunition was recovered from the possession of the detenu. However, plea of likelihood of enlargement on bail of the detenu of not being considered, alleged non-supply of material to detenu and of not being informed of his right to make representation against the detention order, are refuted and denied. In reply to grounds d, e, f & g, it is stated that the material was furnished to the detenue against proper receipt and the grounds of detention were explained to the detenu in Urdu and Kashmiri, as is borne out from the detention file.
4. Mr. M. A. Beigh, Dy. A. G. has made submissions in line with the averments made in the Counter. He has also produced the detention file pertaining to this case.
5. The plea of detenu, having been admitted to bail in the FIR 35/2002 registered at P/S Kokernagh, in which he was initially arrested, is not in any manner to adversly affect the detention, in so far as, order of detention nowhere states that the detenu was not so enlarged on bail. Besides the order and the grounds nowhere show that the authority was not aware of this position.
6. In the ground though reference is made to the FIR and recovery of arms and ammunition, yet the detention order passed for preventing activities of detenu, prejudicial to the interest of the State, nowhere mentions the bail or absence of bail to detenu in the FIR (35/2002). In the grounds as well, no such reference is made. The raised contention on this count is rejected.
7. So far as argument based on Article 22(5) of the Constitution and the provisions of J&K Public Safety Act, referred above, is concerned, in reply, it is stated that :-
(I) “…(a) well founded material was furnished to the detenu against proper receipt, within stipulated time period……”
(II) “……That the grounds of detention were explained to the detenu properly in Urdu and Kashmiri language……”
8. There is nothing on record or in the detention file to support the above pleas. Perusal of the detention record, produced by the learned Dy. A. G. reveals that grounds of detention have not been explained to thedetenu in Urdu and Kashmiri. There is no receipt or endorsement to show that the grounds of detention were at all served upon the detenu. The contentions that detenu is illiterate, which allegation is not denied or refuted by the otherside and that he was not supplied any translated copy/transcript of the grounds of detention and /or that the grounds of detention were not explained to him in the language he understands i.e. Urdu or Kashmiri, appear merited. The detention file reveals that the only papers available are photostat copy of the detention order passed by Respondent No: 2 with endorsement on the backside to the effect that the order of detention has been explained to the detenu and that he was handed over to Superintendent Central Jail, Kot Bhalwal, Jammu, for lodgement on 30.03.2002. It is also seen from the record that the order of detention is based on material supplied to the detaining authority by the Senior Superintendent of Police, Anantnag. This is even explicit from the grounds where the detaining authority states that during sustained interrogation by the concerned police, the detenu has made certain disclosure statements about the arms and ammunitions and his links with militant organizations. Obviously, the detenu cannot be said to have been provided an opportunity to make a meaningful and effective representation against the detention order, as guaranteed, under Article 22(5) of the Constitution, apart from the proviosions of Public Safety Act. The material /basic facts on which the conclusion is arrived at and on the basis of which subjective satisfaction of the detaining authority is based, is with held/denied to the detenu. In such circumstances, the detenu cannot be said to have been communicated the grounds of detention with other relevant material.
9. In Sophia Gulam Mohd. Bham v. State of Maharashtra and Ors., AIR 1999 SC 3051, though the case is dealt with under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, the following observations of the learned Judge are very much relevant and germane to this case:-
“….The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation which can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language……”
10. In Naseer Ahmad Sheikh v. Addl. Chief Secretary Home and Anr. (1999 SLJ, 241), it is observed.:-
“….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, much less 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 detenu so as to enable him to make an effective representation against the order.”
11. The contention of detenu that he is illeterate and unable to understand English language and that he was not provided complete material/translated/transcribed material in Urdu or Kashmiri or even explained the contents, appears merited, in absence of any rebuttal/refutation by the respondents. In the grounds, it is stated that grounds of detention were explained to the detenu in Urdu and Kashmiri, which fact, it is stated is recorded in the detention file. However, perusal of the detention file, nowhere reveals that grounds of detention were at all explained to the detenu muchless in Urdu or Kashmiri language. The allegation that detenu is illiterate never understood the grounds in the language he understands, is not equally refuted either in the Counter or by record.
12. In such circumstances, the following observations of the Supreme Court made in Smt. Raziya Umar Bakshi v. Union of India and Ors. (AIR 1980 SC 1751), is apt to be taken note of::-
“……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 gave to him and the grounds bear some sort of certificate to show that the grounds have been explained to the detenu 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.”
13. In result, for the aforesaid view of the matter, petition succeeds and the impugned detention order is quashed. The respondents/authority/officer, having physical corpus of detenu, namely, Ishtiyaq Ahmad Shah S/o Ali Mohd. Shah R/o Village Larnoo, Tehsil Anantnag, District Anantnag, aged 22 years, to release him from detention forthwith, provided the detenue is not required in any other case/offence/or matter.
