Failure to effectively communicate the grounds of detention and resultant deprivation of the right to make representation against the same vitiates the detention order: High Court of J&K and Ladakh

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR {WPNo. 80 2021} Reserved on 13.09.2021 Pronounced on 03.11.2021 Through: Mr. G.N Shaheen adv. Mohammad Illiyass Sheikh UT of J&K and anr Judgment Through : Ms. Asifa padroo AAG Hon’ble Mr. Justice Ali Mohammad Magrey. Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 01 DMK PSA 2021 dated 19.04.2021 purporting to have been passed by District Magistrate Kulgam whereunder detenu namely Mohd Illiyass Sheikh s o Gh. Hassan Sheikh R o Rampora Tehsil Qaimoh District Kulgam is under detention. 2. Grounds pleaded in support of prayer are that respondent no. 2 has issued the detention order dated 19.04.2021 on the basis of grounds placed before him by the concerned SSP as the grounds of detention are ditto copy of the dossier. It is submitted that the detaining authority has not applied its mind while passing the detention order. It is submitted that the there is total non application of mind while passing the impugned order of detention as the detenu was already under custody when the detention order was passed. It is submitted that the authority has not explained the grounds to the detenu in the language which he understands. It is submitted that no copy of translated version was furnished to the detenu to enable him to make an effective representation against the detention order which renders the detention order liable to be set aside. In his counter affidavit respondent no.2 has stated that the detenu’s activities being highly prejudicial to the security of the State his detention 1 | P a g e was necessary to prevent him from indulging in such acts which was also approved by the Government and the State Advisory Board constituted u s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit has contended that in circumstances of the case the impugned detention is well founded in fact and law. 4. I have heard learned counsel and considered the matter. As per pleadings and contentions raised at bar 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 his mind while passing the detention order and has not revealed as to on what materials he assumed subjective satisfaction regarding necessity of having the subject detained when the detenu was already facing trial in various FIRs. 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 English language were explained to the detenu in a language understood by him as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court in “LallubhaiJogibhai Patel v. Union of India 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 2 | P a g e 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.” In view of the laid down by the Apex Court in case titled LallubhaiJogibhai Patel v. Union of India vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. That being so the grounds of challenge set up by petitioner succeed and the detention stands vitiated. Other grounds urged do not therefore need to be separately addressed. The petition is accordingly allowed and detention order no. 01 DMK PSA 2021 dated 19.04.2021 purporting to have been passed by District Magistrate Kulgam under which the detenu namely Mohd Illiyass Sheikh s o Gh. Hassan Sheikh R o Rampora Tehsil Qaimoh District Kulgam is under detention is quashed with direction for his release forthwith. The petition stands accordingly disposed of. No order as to the costs. 10. Registrar Judicial to send a copy of this Judgment order to Director General of Prisons and also concerned Jail authorities for compliance. Disposed of. Judge Srinagar 03.11.2021 S.A Hussain Secretary i)Whether the order is speaking: ii)Whether the order is reportable : Yes No 3 | P a g e 

Summary: Grounds of detention being drawn up in English and an affidavit filed on behalf of the detaining authority is not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. This was upheld by Hon’ble High Court of J&amp;K, while observing a judgment of Supreme Court in LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427, through a learned bench of Justice Ali Mohammad Magrey in the case of Mohammad Illiyass Sheikh Vs UT of J&amp;K and anr [WP (Crl) No. 80/2021]. Grounds pleaded in support of petition were that respondent had issued the detention order dated on the basis of grounds placed before him by the concerned SSP, as the grounds of detention are ditto copy of the dossier. It was submitted that the detaining authority has not applied its mind while passing the detention order and that there is total non-application of mind while passing the impugned order of detention as the detenu was already under custody when the detention order was passed. It was submitted that the authority had not explained the grounds to the detenu in the language which he understands. It was submitted that no copy of translated version was furnished to the detenu to enable him to make an effective representation against the detention order, which renders the detention order liable to be set aside. In counter affidavit, respondent no.2 had stated that the detenu’s activities being highly prejudicial to the security of the State, his detention was necessary to prevent him from indulging in such acts, which was also approved by the Government and the State Advisory Board constituted u/s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit has contended that in circumstances of the case the impugned detention is well founded in fact and law. The Hon’ble High Court after hearing both the sides stated that “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 English language were explained to the detenu in a language understood by him, as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court in “LallubhaiJogibhai 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.”