MOHD SHABAN CHOPAN Vs. STATE

JUDGEMENT

(1.) THE detenue was in custody of the police since 4.5.2002 in connection with F.I.R. No. 46/2002. The detaining authority passed detention order under Section 8 public Safety Act on 23.5.2002 under No. DMS/PSA/25 for preventive detention of the detenue for preventing him from engaging in activities prejudicial to the security of State. Pursuant to the detention order the detenue was taken into preventive custody on 29.5.2002.

(2.) BY this H.C. petition under Article 226 of Constitution of India read with Section 103 of Constitution of Jammu and Kashmir, the detention order is being challenged on various grounds. One of the grounds urged is that the grounds of detention being in English were not explained to the detenue in Urdu & Kashmiri the languages the detenue only understood being an illiterate and, therefore, his right enshrined in Art. 22 of the Constitution has been violated. Ld. Counsel has relied upon the case reported in AIR 1980 SC 1751. In this the apex court held: - This allegation seems to have been denied by the respondents in para 14 of the affidavit of Mr. P.M. Shah, on behalf of the detaining authority, where he stated that the grounds were explained to the detenue in the language known to him. It was averred in para 5 that one Mr. A.K. Sharma, Police Inspector, C.I.D. (Crime Branch), Ahmedabad had explained to the detenue the order of detention and the grounds communicated to him on January 30, 1980. This affidavit, in my opinion, is wholly inadmissible in evidence. If it was a fact that Mr. Sharma had personally explained the grounds to the detenue then the respondents should have filed an affidavit of Mr. Sharma himself to show that he had actually explained the contents of the grounds to the detenue by translating the same in the language which he understood. No such affidavit is forthcoming. No contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated the grounds to the detenue. The service of the ground 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 ex facie. In this view of the matter, the detention becomes invalid on this ground alone. I would however like to observe that 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 detail at the stage when Habeas Corpus petition is filled 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 translation. We have pointed out in several cases that the courts frown on detention without trial and insist on the strict compliance of the constitutional safeguards enshrined in Article 22 (5) to the letter or the law, because a non -compliance of these safeguards would itself be sufficient to vitiate the order of detention. Despite our repeated observations, unfortunately, however the detaining authority continues to pass orders of detention in a casual or cavalier fashion with the result that the courts are compelled to release the detenues. We hope trust that in future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the Constitution, more particularly because the liberty of the subject is in peril.

(3.) THE detaining authority in his counter affidavit has replied the allegation as follows: - - The grounds of detention were read over and explained to the detenue in Urdu, and Kashmiri languages when the detention order and grounds were supplied to the detenue and made him to understand the contents thereof by ASI Gh. Ahmad No. 02/KP of P/S M.R. Gung no prejudices is caused to the detenue. The Govt. is within its powers to confirm the detention order.