Judgment

Ali Mohammad Magrey, J.—The detenu, Showkat Ahmad Bhat son of Ghulam Hassan Bhat resident of Wahibugh Pulwama District Pulwama, through his father seeks quashment of detention order no 26/DMP/PSA/20 dated 09.09.2020 purporting to have been passed by District Magistrate Pulwama, with consequent prayer for his release forthwith.

2. The petitioner-detenu has challenged the order of detention on the following grounds:

“a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody, though bail granted by the competent court of jurisdiction.

b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;

c) that the detaining authority has not prepared the grounds of detention in a hyper technical language not able to detune to understand the same.

d) that the detaining authority has not applied its mind while passing the detention order.”

e) that the order of detention/grounds were not served upon the detenu within time as prescribed in the Act.”

3. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition. Detention record has been produced.

4. I have heard learned counsel and considered the matter. As per pleadings and contentions raised the main ground of attack projected by petitioner against the detention in question is, that grounds of detention were not duly communicated to him, which prevented him from making an effective representation against the same and thereby he was deprived of an important constitutional right, and that the detaining authority did not apply it’s mind while passing the detention order and has not revealed as to on what material he assumed subjective satisfaction regarding necessity of having the subject detained when the detenu was already under custody, even though bail was granted by the competent court of jurisdiction but the detenu not released, the said fact has not been mentioned in the detention order. It appears that there is total non-application of mind on part of detaining authority while passing the detention order.

5. So far as the ground taken i.e non communication of the grounds of detention is concerned, perusal of file reveals, that there is nothing to show or suggest that the grounds of detention couched in hyper technical language were explained to the detenu in a language not understood by him, as there is no material to that effect is on record. This according to the view taken by Hon’ble Apex Court in “Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427”; the detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu, but the Apex Court held that, was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court observed as under:

“Communicate’ is a strong word which means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ‘grounds’ to the detenu is to enable him to make a purposeful and effective representation. If the ‘grounds’ are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.”

6. The only precious and valuabl