Jammu & Kashmir High Court - Srinagar Bench
Mehraj Ud Din Mir vs State Of J&K; & Ors. on 3 November, 2018
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
On board
matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.181/2018
Date of decision:03.11.2018
Mehraj ud din Mir v. State of J&K and ors.
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s): Mr. Shafqat Nazir, Adv.
For the Respondent(s): Mr. Shah Aamir, AAG.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1) Pursuant to order No.20/DMB/PSA/2018 dated 07.05.2018, issued by
respondent No.2-District Magistrate, Baramulla, Mehraj-ud-din Mir (hereinafter for short referred to as the detenue) has been taken into preventive custody and lodged in District Jail, Kathua. By the instant petition, quashment of the said order is sought on the grounds adumbrated therein.
2) Learned counsel for the petitioner highlighted various grounds while seeking quashment of the order impugned, the star ground is that the detenue has been disabled from making an effective representation by not supplying the material forming base for the grounds of detention and the consequent order of detention. Further added that the grounds of detention are in English language besides being in a hyper technical language, the translated copy of grounds HCP No.181/2018 Page 1 of 4 of detention has not been supplied to the detenu, therefore, could not understand the same.
3) The respondents have not brought anything on record to suggest that the material forming basis for detention and the translated copy of grounds of detention has been supplied to the detenue, therefore, infringement of right guaranteed under Article 22(5) of the Constitution.
4) The Hon'ble Apex Court in the judgment rendered in the case of "Sophia Gulam Mohd. Bham v. State of Maharashtra & ors" (AIR 1999 SC 3051), has held as under:
"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 against the order of detention. 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."
5) In paras 27 and 28 of the judgment captioned "Thahira Haris etc. etc. Vs. Government of Karnataka & Ors, reported in AIR 2009 Supreme Court 2184, Hon'ble Apex Court has held as under:
"27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of HCP No.181/2018 Page 2 of 4 not supplying the relied upon document, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone.
28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention.
6) In "Nandoli Mohamed Rafeeq Vs. Union of India and others" reported in (2004) 12 SCC 218, Hon'ble Supreme Court held that "the document was supplied to the detenue to facilitate his right to make effective representative against order of detention, the document being in language not known to him, his continued detention was violative of Article 22(5) as he has been deprived of his right to make an effective representation."
7) In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on aforesaid ground alone, therefore, other grounds projected in the petition are not required to be dealt with.
5. Taking conspectus of afore-stated facts, reasons and the law laid down by the Hon'ble Apex Court, the order of detention impugned is unsustainable, as such, quashed. The detenue shall be released from the HCP No.181/2018 Page 3 of 4 preventive custody forthwith provided he is not required in connection with any other case.
6. Detention record as produced be returned to the learned counsel for the petitioner.
(Rashid Ali Dar) Judge Srinagar 03.11.2018 "Bhat Altaf, PS"
HCP No.181/2018 Page 4 of 4