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Judgment
Legality of the detention order No.04/DMK/PSA/08 dated 02.08.2008 passed by respondent NO. 2, District Magistrate, Kulgam is under
challenge.
The detenue namely Jahangir Ahmed Tantry S/o Gh. Mohammad Tantry R/o Shirpora Tehsil and District Kulgam has been arrested by the
security forces on 19.07.2008 in connection with a criminal case registered against him as FIR No. 51/2006 for commission of offence punishable
under sections 307, 397, 120B 212, 326 RPC, 7/27 of Indian Arms Act and 36 Police Act in Police Station, Zainpora.
The order of detention suffers from non application of mind as in the grounds of detention, it is mentioned that the detenue was earlier detained
vide detention Order No. DET/PSA/06/81 dated 26.10.2006 passed by District Magistrate, Anantnag. On the quashment of the detention order
detenue was released through Police Station, Yaripora but with the object of keeping vigil on the future activities name of the detenue had been
entered in the Register No. 10 B (Surveillance of Bad Characters) of Police Station Yaripora in pursuance to order No. 347/2007 dated
16.07.2007 of S.P. Kulgam. After release the detenue is said to have flouted directions/conditions prescribed and left the home to join
DarulAloom at Pinjoora, Shopian without getting proper permission from the Police Station, Yaripora. The ground as projected in the grounds of
detention is belied as on behalf of the detenue unrebutted photocopy of the attendance as well as permission order placed on record show that the
detaining authority has not furnished the entire material or otherwise detaining authority has not applied its mind while passing the order of
detention. The detenue has been attending the Police Station, Yaripora as is clear from the attendance notes issued by the Police Station, Yaripora
which show that the detenue has attended the Police Station, Yaripora on 30.05.2007, 03.06.2007, 10.06.2007, 17.06.2007, 24.06.2007,
01.07.2007, 08.07.2007, 14.07.2007, 23.07.2007, 28.07.2008, 05.08.2007, 12.08.2007, 19.08.2007, 26.08.2007, 02.09.2007, 09.09.2007,
16.09.2007, 23.09.2007, 21.10.2007, 04.11.2007, 19.11.2007, 04.12.2007, 16.12.2007, 29.12.2007, 13.01.2008, 27.01.2008, 21.02.2008,
15.03.2008, 28.04.2008, 27.05.2008 & 17.07.2008.
The detenue has left DarulAloom, Pinjoora Shopian only after obtaining proper permission issued by the Police Station, Yaripora dated
10.05.2008, photocopy of which is on the file. This position has not been refuted in the reply affidavit. The ground no. 5 of the grounds of
detention is wrongly recorded which in turn shows non application of mind, resultantly, renders the order of detention as bad.
The next contention of the learned counsel is that the copy of FIR, as well as statement recorded by the police under section 161 Cr. PC and
the order of detention as well as other material forming the basis for the detention order have not been supplied to the detenue so as to enable him
to make an effective and purposeful representation against his detention which right is guaranteed under Article 22(5) of the Constitution of India.
In this connection, it would be apt to quote from the Hon'ble Apex Court Judgment (Sophia Gulam Mohammad vs. State of Maharashtra) AIR
1999 SC, 3051 covering this aspect:
.. 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 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
Nonsupply of the material as well as grounds of detention is violative of the rights guaranteed under Article 22 (5) of Constitution of India. From
the perusal of record, it nowhere emerges that the material forming basis for the detention has been furnished to the detenue. Further more as to
whether the grounds of the detention have been read over and explained to the detenue is also questioned.
It is stated by the respondents in their counter affidavit that the detenu's activities being highly prejudicial to the security of the State so detention
was necessary to prevent him from indulging in such activities. Besides that the grounds of the detention were read over and explained to the
detenue but affidavit has not been filed in support thereof. It is quite apt to quote from the Hon'ble Apex Court Judgment (Mst. Raziya Umer
Bakshi vs. Union of India and others) AIR 1980 SC Page 1751 as to what has been laid down:
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 detenue, unless the contents of the grounds are fully explained and translated to the detenue, it will tantamount to not
serving the grounds of detention to the detenue and would thus vitiate the detention exfacie.
In cases 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 a 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.
In the totality of the facts and circumstances what surfaces is that the order of detention has been passed absolutely in violation of rights
guaranteed under Article 22(5) of Constitution of India. Thus order of detention is not sustainable.
The detention order bearing no. 04/DMK/PSA/08 dated 02.08.2008 is quashed. Detenue namely Jahangir Ahmed Tantry S/o Gh. Mohammad
Tantry R/o Shirpora Tehsil and District Kulgam is ordered to be released forthwith provided he is not required in connection with any other case.
Detention record be returned to the appearing counsel for respondents.
The petition accordingly disposed of.