Jammu & Kashmir High Court - Srinagar Bench
Muhammad Yousuf Kaloo vs State Of J&K & Ors on 25 August, 2009
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA (HC) No. 70 of 2009 Muhammad Yousuf Kaloo Petitioners State of J&K & ors Respondents !Mr. Mir Majid Bashir, Advocate ^Mr. N. H. Shah, Advocate Honble Mr. Justice Barin Ghosh, Chief Justice Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 25/08/2009 :J U D G M E N T:
In connection with FIR no. 320/2008 lodged on November 13, 2008, the detenu was arrested and was kept in custody. On November 18, 2008 the detenu obtained bail from the local court. He, however, was not released from custody despite obtaining such bail, inasmuch as a detention order dated November 18, 2008 passed under Section 8(a-1) of the Jammu & Kashmir Public Safety Act, 1978 by the District Magistrate, Shopian, was executed against the detenu. The grounds of detention, there is no doubt, were also served upon the detenu. In the grounds, it was held out that there is a reason to believe that the detenu is indulging in smuggling of timbers and such belief was said to be based on lodgement of three FIRs., respectively dated February 9, 2008, June 30, 2008 and July 2, 2008. In addition to that, it was held out that there is yet another FIR against the detenu bearing no. 320 of 2008 registered on November 13, 2008 when identity card of the detenu was seized. On the basis of these materials, a satisfaction was recorded that the detenu is indulging in smuggling of timber and, accordingly, it has become necessary to pass the detention order. Copies of these FIRs were not served alongwith the grounds. Copy of the seizure memo was also not served alongwith the grounds.
In the counter affidavit filed by the detaining authority before the Writ Court, they accepted that those were not served, but contended that, simply by reason thereof, it cannot be held that there was any prejudice caused to the detenu for non- supply of copies of those FIRs and seizure memo. It was insinuated that non-supply of those materials did not stand in the way of the detenu to make a representation in terms of Sub-Article (5) of Article 22 of the Constitution of India.
In the writ petition, the detenu contended that he is an illiterate and that the detention order and the grounds, which were in English language, had not been explained to him. This contention was denied in the counter affidavit on the strength of a separate affidavit filed by the Superintendent of Police concerned. In that, it had been stated that the grounds of detention were explained to the detenu in Kashmiri language which the detenu understood fully. The affidavit of the Superintendent of Police does not say that he himself had explained to the detenu the grounds of detention in Kashmiri language.
In view of the state of pleadings, there was no dispute that the detenu was an illiterate person, incapable of understanding grounds recorded in English language and, accordingly, it became necessary to explain the same to him in the language known to him, i. e., the Kashmiri language. However, apart from an assertion by a person who does not claim to have explained, that an explanation was accorded, there is nothing on record on the basis whereof it can be gathered that, in fact, explanation was recorded.
Before a detention order is passed under the Act, it is the requirement of law that the authority issuing the detention order must be satisfied with respect to the person concerned that with a view to prevent him from smuggling of timber, he should be detained. This satisfaction must be gathered on the materials considered by the authorities concerned. These materials, being the core of expressing such satisfaction, it goes without saying, should be supplied to the detenu alongwith the detention order in order to enable the detenu to make an effective representation which the detenu has by way of a fundamental right in terms of Sub-Article (5) of Article 22 of the Constitution of India. In the event these materials are not supplied, that itself would tantamount to denying such fundamental right of the detenu.
In the case of Sophia Gh. Mohammad v. State of Maharashtra, reported in AIR 1999 SC 3051, the Honble Supreme Court has held, in no uncertain terms, that non- supply of documents, upon which satisfaction has been reached, could vitiate the order.
In the instant case, even upto the stage the matter was dealt with by the Writ Court or even before us, the concerned FIRs have not been produced. It is also not known as to whether in the earlier three FIRs the detenu had been shown as an accused.
In the circumstances, we are satisfied that the minimum requirement for detention was not taken care of in the instant case, i. e., providing the materials, upon which satisfaction was accorded, to the detenu and despite knowing that the detenu is an illiterate, no effective step was taken to explain the grounds of dentition, the detention order took away the fundamental right of making a representation as provided in Sub-Article (5) of Article 22 of the Constitution of India and, accordingly, the judgment and order under appeal, which is a cryptic judgment and order and did not deal with the contentions raised in the writ petition, is set aside and the writ petition is allowed by quashing the detention order.
(Mohammad Yaqoob Mir) (Barin Ghosh)
Judge Chief Justice
Srinagar
25.08.2009