Serial No.03 Regular List HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No.230/2017 Date of decision: 24.10.2017 [PRECEDENT] Coram: Hon'ble Mr Justice [ENTITY], Judge. Appearance: For the Petitioner(s): Mr. [ENTITY], Adv. For the Respondent(s): Mr.[ENTITY], GA.
i) Whether approved for reporting in Yes/No Law journals etc.: ii) Whether approved for publication in press: Yes/No
1. Challenge in this petition is to the order No.21/DMB/PSA/2017 dated 08.05.2017, passed by District Magistrate, Baramulla-respondent No.2 herein, whereby [ENTITY] (hereinafter referred to as the detenue), has been taken in preventive detention and lodged in Central Jail, Kotbhulwal. By now detenue is in preventive custody for more than five months.
2. Learned counsel for the petitioner highlighted various grounds while seeking quashment of the order impugned, 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, translated copies thereof have not been provided to the detenue, therefore, he could not understand the same.
3. Submission has a prevailing force as the record as produced does not 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 [SECTION] of the [ACT]. The Hon'ble Apex Court in the judgment rendered in the case of "[PRECEDENT], has held as under:
"The right to be communicated the grounds of detention flows from [SECTION] 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."
4. It shall also be quite apposite to quote following para from the judgment rendered by the Hon'ble Apex Court in the case captioned "[PRECEDENT]
" In case of [PRECEDENT], it was held that merely oral explanation of an order without supplying him a translation in a script or language which the detenu understood amounted to a denial of right of being communicated the grounds. In the instant case, it is not even alleged in the affidavit of Mr. [ENTITY] that any translation or translated script of the grounds was furnished to the detenu."
5. 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 [SECTION] as he has been deprived of his right to make an effective representation.
6. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States' security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. Personal liberty protected under [SECTION] of the [ACT] is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Right to liberty as guaranteed under [SECTION] of the [ACT] can be negated in view of [SECTION] of the [ACT], which is an exception to [SECTION] of the [ACT]. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person. Such power has to be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this regard, support can be had from the judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned [PRECEDENT].
7. Viewed thus, the petition is allowed and order No.21/DMB/PSA/2017 dated 08.05.2017, is quashed. Detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
8. Detention records as produced, after perusal, stand returned to the learned counsel for the respondents.
([ENTITY]) Judge [ENTITY] 24.10.2017 "[ENTITY], PS"