Mohammad Aslam Ganie vs Union Territory Of J&K & Ors
2021 Latest Caselaw 1621 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                                             Reserved on: 13.12.2021
                                             Pronounced on:16.12.2021


                       WP(Crl.) No.64/2021

MOHAMMAD ASLAM GANIE                             ...PETITIONER(S)

            Through: - Mr. M. Wajid Haseeb, Advocate
Vs.

UNION TERRITORY OF J&K & ORS.                 ...RESPONDENT(S)

            Through: - Mr. Mir Suhail, AAG


CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                              JUDGMENT

1) Challenge in this petition is thrown to the order

No.20/DMP/PSA/21 dated 23.04.2021, issued by District

Magistrate, Pulwama (for brevity "Detaining Authority") whereby

Shri Mohammad Aslam Ganie son of Ali Mohammad Ganie

resident of Samboora Tehsil Pampore District Pulwama (for short

"detenu") has been placed under preventive detention and directed

to be lodged in Central Jail, Jammu (Kotbhalwal).

2) Petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without

application of mind, inasmuch as the grounds of detention are mere

reproduction of the dossier. It has been further contended that the

Constitutional and Statutory procedural safeguards have not been

complied with in the instant case. It has been also urged that the

allegations made against the detenue in the grounds of detention

are vague and that the translated version of the documents/grounds

of detention has not been provided to the detenue who is a semi-

literate person. It has also been contended that the petitioner has

not been informed as to before which authority he had to make a

representation.

3) The respondents, in their counter affidavit, have disputed the

averments made in the petition and stated that they have followed

the provisions of J&K Public Safety Act. It is contended that the

detenue has been detained only after following due procedure; that

the grounds of detention were read over to the detenue; that there

has been proper application of mind for detaining the detenue and

that the detenue has been provided all the material. The learned

counsel for the respondents also produced the detention records to

lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for parties and I have also gone

through detention record.

5) Learned counsel for the petitioner, while seeking quashment

of the impugned order, projected various grounds but the main

grounds that have prevailed during discussion are that the detenue

has been disabled from making an effective representation against

his detention as the material forming basis of the grounds of

detention and the translated copies of grounds of detention have

not been supplied to him.

6) On perusal of the detention record produced by learned counsel

for the respondents, the ground regarding non-supply of relevant

material appears to have substance as there is nothing in the said record

to show that the whole of the relevant material has been supplied to the

detenue. The execution report in the record reveals that the detenue has

been supplied 04 leaves comprising notice of detention (one leaf)

grounds of detention (02 leaves) and detention order (one leaf). Thus,

it appears that the detenue has not been provided the copy of dossier

and the copy of the FIR No. 40/2021 for the offences u/s 147, 148, 149,

341 and 307 IPC of P/S Pampore, which formed basis of the detention.

This goes to support the contention of the petitioner that he has not been

supplied the relevant material. Obviously, the petitioner has been

hampered by non-supply of the relevant material in making an effective

representation against his detention before the concerned authority/

Advisory Board.

7) Non-furnishing of relevant material forming basis of the grounds

of detention deprives a detenue of his Constitutional right to make a

representation against the order of detention. The denial of this

Constitutional right renders the order of detention unsustainable in law.

I am supported in my aforesaid view by the judgments of the Supreme

Court in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors

(AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of

Karnataka & Ors (AIR 2009 SC 2184) and 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.

8) Next it is contended by learned counsel for the petitioner that

the detenue has been disabled from making an effective

representation by not supplying him the translated copies of the

grounds of detention which are in English language besides being

in a hyper technical language which the detenue is not in a position

to understand being a semi-literate person.

9) As per the record produced by the learned counsel for the

respondents, the qualification of detenue is 10th pass, therefore, he

would not be in a position to understand the contents of the

grounds of detention. The record also does not suggest that the

translated copies of grounds of detention have been supplied to the

detenue. The right of making effective representation against the

detention order has been rendered nugatory in this case, resulting

in infringement Constitutional right of the petitioner guaranteed

under Article 22(5) of the Constitution.

10) The service of the grounds of detention on the detenue is a

very precious constitutional right and the object behind the same

is to enable the detenue to file an effective representation. It will

be an empty formality to supply the grounds of detention to the

detenue unless he is in a position to understand the same. In my

view I am fortified by the judgments rendered by the Supreme

Court in the case "Chaju Ram Vs. The State of Jammu & Kashmir"

reported in AIR 1971 SC 263. Following portion from para 9 of

the judgment shall be quite apposite to quote:

"....... The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenue to make a representation which right is frustrated by handling over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with."

11) The observations made by the Supreme Court in Ibrahim Ahmad Batti's case (supra) are also relevant to the context and the same are reproduced herein below:

"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."

12) It shall also be quite apposite to quote the following portions

from paras 3 and 5 of the judgment rendered by the Supreme Court

in the case captioned "Smt. Raziya Umar Bakshi Vs. Union of

India"(AIR 1980 SC 1751):

"3.........The service of the grounds of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie."

5........in case 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 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 he understands."

13) From the afore quoted observations of the Supreme Court, it

is clear that a detenue has not only to be furnished the translated

versions of the grounds of detention, particularly when a detenue

is semi-literate, as is the case at hand, but even the executing

officer has to file an affidavit to show that he has fully explained

the grounds of detention to the detenue in the languages which he

understands. None of these requirements have been followed in the

instant case, at least the records suggest the same.

14) The cumulative effect of the aforesaid discussion leads to the

only conclusion that in the instant case, the respondents have not

adhered to the legal and Constitutional safeguards while passing

the impugned detention order against the petitioner. The impugned

order of detention is, therefore, unsustainable. Accordingly, the

same is quashed. The detenue is directed to be released from the

preventive custody forthwith provided he is not required in

connection with any other case.

15) The record, as produced, be returned to the learned counsel

for the respondents.

(Sanjay Dhar) Judge Srinagar 16.12.2021 "Bhat Altaf, PS"

                                              Whether the order is speaking:         Yes/No
                                              Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.12.17 10:07
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integrity of this document