ORDER
Syed Bashir-Ud-Din, J.
1. Tariq Ahmad Gogia has been detained for a period of twelve months in terms of Section 8 of J. & K. Public Safety Act under orders of April 22, 1998 of District magistrate Srinagar-respondent No. 2. This order is impugned in this petition by the petitioner through his father.
2. Detenu is alleged to have been arrested on 27-2-1998 and thereafter taken in preventive detention as above. It is alleged that the provisions of Public Safety Act regarding reference of his detention case to Advisory Board and producing the detenu before the Advisory Board have been violated. The detenu has been detained on vague, indefinite and omnibus allegations. The order suffers from non-application of mind and lacks in subjective satisfaction. The detenu has not been served with order of detention nor the material referred in the grounds has been supplied to him. The grounds of detention have not been supplied to the detenu in the language which he understood. The detention grounds written in English were not accompanied by translation or transcription in Urdu or Kashmiri. Petitioner/detenu has been prejudicially affected and disabled to make an effective representation against detention to the Government. The detaining authority has not shown the awareness about the detenu’s arrest and involvement in regular case while passing the detention order.
3. Respondent No. 2 the detaining authority has filed the counter-affidavit, wherein, it is averred that the detenu has been detained on subjective satisfaction and application of mind by respondent No. 2 in order to prevent him to indulge in activities prejudicial to the security of the State. It is further stated that the detention order and the grounds have been read over and explained to the detenu in the language which he understood and signature on endorsement of receipt has been obtained from the detenu. The detenu’s case has been referred to the Advisory Board. After obtaining opinion of the Board detention of the detenu has been confirmed. The grounds of detention are stated to be neither vague nor devoid of any particulars. The detention order is stated to be based on grounds of detention alone and no other material has been relied on. Therefore, copy of irrelevant material has not been supplied to the detenu. The FIR No. 54/98 registered at P/S Sakakadal Srinagar has not been relied for the detention, therefore, copy thereof has not been furnished to the detenu.
4. The counsel for the petitioner submits that the grounds of detention were not read over and explained to the detenu and besides as the grounds were not accmpanied by translation or transcription, there has been no effective communication of the order and grounds to petitioner, thereby he has been legally disabled from making representation against the order of detention to the Government. This ground has been specifically taken in para 11 of the petition and in counter-affidavit the para has been replied vaguely in terms,”…have been read over and explained to the detenu in the language which he understood”. Which language the detenu understood or in which language the grounds and order were read over, has not been specified. It was also not accompanied by any translation or transcription, therefore, petitioner has been prejudiced and could not avail of the right of making effective representation provided for by Article 22 of the Constitution and provisions of Public Safety Act.
5. On the other hand counsel for respondents Mr. G. Mustaffa, GA, has submitted that as the detention order with grounds was explained to the detenu, therefore, he is not prejudiced, notwithstanding that the translation or transcription of the grounds did not accompany the grounds couched in English language.
6. Admittedly the order and the grounds of detention are in English language. While communicating the grounds, it was not accompanied by any transcription or translation in a language (Urdu or Kashmiri) understood by the petitioner. The grounds were served not by the detaining authority, but as per endorsement on the detention order through S.S.P. Srinagar. The official or the authority who has actually served the order and explained the grounds allegedly in the language which the detenu understood, is not known. Such official or authority has not been identified. Even in counter the serving officer or the person who read over and explained order and grounds to detenu, has not sworn any affidavit. There is no explanation thereto on record. Mere saying that the grounds were read over and explained to the detenu in the language which he understood in omnibus terms cannot be tantamount to effective communication of order and the grounds, so as not to prejudicially affect the petitioner in making representation against the detention to the Government.
7. In Smt. Raziya Umar Bakshi’s case AIR 1980 SC 175, it is held (at page 1752) :-
…Where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, 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 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.
8. Mere oral explanation of an order or grounds without supplying detenu translation in script or language which the detenu understood, amounts to denial of right of being communicated the rights. See AIR 1969 SC 43 : 1969 Cri LJ 274.
9. It is next contended that while the petitioner was in custody in FIR 54/98 Under Section 7/27 I.A. Act, the detaining authority has not shown the compelling reasons warranting simultaneous preventive detention of Tariq Ahmad Gogia under provisions of Public Safety Act.
10. In Dharmendra Suganchand’s case AIR 1990 SC 1196 : 1990 Cri LJ 1232, the Apex Court while upholding the detention of a person while in custody, held that the detaining authority must demonstrate that it was aware of the factum of detenu’s subsisting custody at the relevant time and there were compelling reasons justifying such detention. ‘Compelling reasons’ could mean cogency of material to the detaining authority on which subjective satisfaction of the detaining authority is based. The detaining authority’s satisfaction has to be drawn from the material having bearing on issues of likelihood of release of detenue in custody in near future, nature of antecedent activities of the detenu and the likelihood that after release he may indulge in activities prejudicial to the security of the State. In this case the detaining authority was aware of detenu’s custody since 27-2-98 in the regular case. But the compelling reasons warranting simultaneous preventive detention under the provisions of Public Safety Act is not stated. No ground is in the counter to show that the detenu was likely to be released on bail.
11. The counsel has also contended that the detention is vitiated for the reason that the petitioner has not been supplied the material referred in grounds. In counter it is admitted that except the copy of grounds no material has been furnished to the detenue. In the grounds it would be seen that besides the allegation of joining banned HUA outfit and undergoing weaponry training in handling of arms and ammunition, it is alleged that the detenu has indulged in activities of hurling grenades in January 1998 and December 1997. The grounds are definitely based on some material, may be a dossier or some other material placed before detaining authority. However, as admitted by the respondents no such material whatsoever has been supplied to the petitioner. Similarly, no details regarding the FIR 54/98 of P/S Safakadal Srinagar were furnished to the detenu. No copy of FIR, recovery of seizure memo etc. have been supplied to the detenu. FIR is part of grounds. In such circumstances the allegation of non supply of material referred in grounds of detention is not refuted. Obviously in absence of such material the petitioner shall be deemed not to have been communicated the grounds and shall be deemed to be prejudicially affected in making effective representation against the detention to the Government.
12. No other point has been taken up to challenge the detention order before this Court.
13. In the result the detention is held invalid. The order of detention DMS/PSA/15 dated : 22-4-98 is quashed. Respondents/authority/official having physical custody of the detenu Tariq Ahmad Gogia, is directed to release and set him at liberty forthwith unless required in any regular offence or case including FIR 54/98 registered at P/S Safakadal Srinagar.
Petition is disposed of. Copy of order be provided to petitioner free of cost.