Proper explanation of grounds of detention in a language understood by the detenue, especially when the detenue is illiterate, satisfies the constitutional mandate of Article 22 (5) of the Constitution.

PER H.K. SEMA, ACTING CHIEFJUSTICE:

1. We have heard Mr. M.A. Wani, learned counsel for the appellant as well as Mr. G. Mustafa, GA, learned counsel for the respondents.

2. This appeal has been preferred by the appellant against the order dated: 15-02-2001 passed by the learned Single Judge in HC No. 232/2000 (sic) dismissing the petition.

3. The appellant has been detained under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter Act) by an order dated: 03-08-2000 passed by District Magistrate Pulvama. The detention order was followed by grounds of detention supplied to the dctenue on 07-08-2000. It may not be necessary to quote the whole grounds of detention, however, it will be useful to quote the operative portion of grounds of detention which read as under:-

"With the help, assistance, connivance of militants, you turned to be notorious timber smuggler, docoit, rapist of the Keller area. You are hardened criminal and had not any care and respect for the law of the land and blatantly violated it with impunity. You can go to any extent to terrorize, humiliate and tease the respectable citizens. You by virtue of his misdeeds activities had turned lobe nuisance for maintaining ofthe public order. Finally you were arrested on 23-07-2000 by P/S Rajpora from your house and recovered one hand grenade from your possession. In this connection a case FIR No. 94/2 K U/s 7/25 I.A.A. stands registered in P/S Rajpora and investigation taken up. You are presently under arrest and there is ever)1 likelihood of your getting bailed out and indulging in subversive activities. Therefore, your activities being highly prejudicial to the security of the Slate, you Shri Rustum Wani alias Rustum Galwan S/0 Samad Wani R/O Village Daramuran Wanpora Tchsil Shopian District Pulwama are detained under the provisions of J&K Public Safety Act, 1978 and have a right of representation to Govt. against detention order."

4. The aforesaid detention order alongwith the grounds of detention has been challenged mainly on these grounds:-

(a) that the detenue was already arrested in connection with FIR No. 95/2000 mid he was under custody and no bail application has been preferred at the relevant time and therefore, there was no question of the detenue being released on bail. Therefore, the order of detention has been passed without application of mind.

(b) that the FIR referred to in the grounds of detention copy of which has not been supplied to the detenue and the detention order is accordingly vitiated.

(c) that the detenue was not supplied with a copy of grounds of detention in the language he understood. The detenue is it- literate person and did not understand the english language.

5. Admittedly, copy of the FIR mentioned in the grounds of detention has not been supplied to the detenuc. The learned Single Judge has held on this ground by referring to the judgment of Apex Court rendered in Ahmad Nassar Vs. State of Tamil Nadu reported in 1999 (8) SCO 473. The Apex Court in Ahmad Nassar (supra) had occasion to deal with the similar matter with the facts of the case at hand and came to a finding as undcr:-

"... Merely because no bail application was then pending is not premise to hold that there was no likelihood of his being released on bail. The words likely lo be released cannote chances of being bailed out. in case, there be pending bail application or in case if it is moved in future is decided. The word "likely shows il can be cither way."

6. In view of the order of Apex Court as referred to above that non filing of the bail application would not deter the appropriate authority to pass an order of detention if there is likelihood of being released which would include future also. The next ground of challenge was that non supply of the FIR which has been relied upon in the grounds of detention served upon the detenue on 07-08-2000.

7. Admittedly, the copy of FIR relied upon by the authority has not been supplied to the detenue. Whether non supply

Click Here to Read the rest of this document