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Pasha Vs. the Collector and District Magistrate, Adilabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 5886 of 1981
Judge
Reported in1981CriLJ1714
ActsNational Security Act, 1980 - Sections 3(3); Constitution of India - Article 22(5)
AppellantPasha
RespondentThe Collector and District Magistrate, Adilabad and ors.
Appellant AdvocateMukramuddin, Adv.
Respondent AdvocatePublic Prosecutor
Excerpt:
.....has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - therefore, the detenu cannot complain that the documents relied upon were not supplied to him. it is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of art. it is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by art. state of west bengal, air1973sc2455 ,their lordships of the supreme court held that where the activities forming ground of detention were actually disclosed to a detenu in..........from the detenu to appear and accordingly he appeared before us for the detenu. 3. the learned counsel firstly submitted that the grounds are not correctly translated into urdu and therefore the detenu was not given proper opportunity to make an effective a representation. it is also his submission that some of the grounds are vague. it is his further submission that the contents of some of the grounds and certain averments made in the counter-affidavit indicate that the detaining authority has relied upon some material which was undisclosed to the detenu. it is lastly submitted that all the material relied upon by the detaining authority has not been supplied to the detenu. for all these reasons, according to the learned counsel, the detention is illegal as there is.....
Judgment:

Jayachandra Reddy, J.

1. This is an application to issue a writ of habeas corpus filed through jail by Pasha alias Azad Pasha, detained under Section 3(3) of the National Security Act, 1980. The Collector and District Magistrate. Adilabad, passed the order of detention on 6-4-1981 and while the detenu was absconding he was arrested only on 14-5-1981 and the grounds of detention were served on him both in English and in Urdu on 18-5-1981.

2. After the petition was admitted and numbered, Sri Mukarramuddin, the learned advocate, had instructions from the detenu to appear and accordingly he appeared before us for the detenu.

3. The learned counsel firstly submitted that the grounds are not correctly translated into Urdu and therefore the detenu was not given proper opportunity to make an effective a representation. It is also his submission that some of the grounds are vague. It is his further submission that the contents of some of the grounds and certain averments made in the counter-affidavit indicate that the detaining authority has relied upon some material which was undisclosed to the detenu. It is lastly submitted that all the material relied upon by the detaining authority has not been supplied to the detenu. For all these reasons, according to the learned counsel, the detention is illegal as there is violation of Art. 22(5) of the Constitution of India inasmuch as the detenu has not been afforded a real opportunity enabling him to make an effective representation.

4. A perusal of the copy of the grounds would show that there are as many as 11 paragraph therein. Out of them paragraphs 3, 4, 5, 6 and 7 contain the specific incidents. Paragraph 1 & 2 are in the nature of preamble. The remaining paragraph are only about the conclusions and subjective satisfaction derived therefrom by the detaining authority. The sum and substance of all these grounds is that the detenu who is a Muslim has been inciting the members of the Muslim community to resort to violence and thus has been acting in a manner prejudicial to the maintenance to public order.

5. As already mentioned, the grounds have been served on the detenu both in English and in Urdu. No doubt the grounds in Urdu are only a translation of the original grounds which are in English. The first two grounds which are in English read thus :-

'1. Whereas it has been made out to me that you Sri Pasha alias Azad Pasha, s/o Abdul Wahed, r/o Bhainsa, Mudhol Taluq, are communal minded and wields considerable influence among the youth and militant section of Muslim community of Bhainsa town and that you have been fomenting communal hatred between Hindus and Muslims at Bhainsa.

2. And whereas in furtherance of whipping up communal Frenzy, you have been acting in close collaboration with other militant section of Muslim community and jumping into every dispute promoting communal hatred.'

6. The learned counsel submits that even assuming that these two paragraphs are in the nature of preamble, the translation into Urdu is not correct. The learned counsel submits that the words 'militant section of Muslim community' which find place in English, have not been correctly translated into Urdu which language only the detenu knows. The learned counsel who is conversant with Urdu has translated the grounds in Urdu into English and has furnished a copy to the Court. In the English translation of the grounds in Urdu, the exact translation of the word 'militant' has not been used. On the other hand the words used are 'You also have sufficient influence over the Muslim community who are native of Bhainsa and that you are creating communal atmosphere between Hindus and Muslims of Bhainsa.' According to the learned counsel the word 'militant' as used in the original grounds in English, has a particular meaning and the same meaning is not conveyed in the words used in Urdu and therefore it must be presumed that the grounds in Urdu served on the detenu are not the same as the original grounds, and consequently the detention should be held to be illegal. We see no force in this submission. A combined reading of both the grounds would show that the detaining authority wanted to convey that the detenu wields considerable influence among the members of the Muslim community. To that extent the effect is there in both the languages. However, this is a minor thing and from this alone we find it difficult to hold that the grounds which are served in Urdu are different.

7. The next submission is that in grounds Nos. 3 and 4 though the date of incident and other particulars are given, the names of the associates of the detenu have not been given, and, therefore, the grounds must be held to be vague. The gist of these two grounds is that on 22-9-1980 and again on 21-10-1980 the detenu along with his associated was instigating the Muslim students to attack the Hindus and also along with his associated attacked the Hindus and the incidents resulted in large number of clashes between the two communities. We have carefully perused these two grounds. We find all the particulars. Merely because the names of all the associated are not mentioned, it cannot be said that the grounds are vague. Same criticism is levelled against the next two grounds which are contained in paras. 6 and 7. There also the date and place are mentioned but the names of some of the students and the associated of the detenu have not been given. Here again we must point out that one cannot expect the detaining authority to give the names of hundreds of people that gathered. As already mentioned there were large scale clashes between the two communities and one cannot expect the detaining authority to give all the names of the associates or persons that gathered there. What the Court has to see is whether there are the necessary details and particulars about the activity of the detenu that formed the basis. In A. K. Ghosh v. State of West Bengal, : 1972CriLJ882 , it has been held that to determine the relevance or otherwise of the grounds they must be read as a whole and not in parts, one isolated from other. In D. S. Roy v. State of West Bengal, : 1973CriLJ446 , the Supreme Court while considering a similar contention held thus :-

'Not only the dates and the time in such of the grounds have been mentioned but the acts of the petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associated because they may not have been known. The petitioner is being detained in respect of his acts and if in association others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal.' Therefore, the contention that the grounds are vague because the names of the associates have not been mentioned, has to be rejected.

8. Now coming to the submission that certain undisclosed material has been acted upon by the detaining authority, we must also point out that there is no force in this submission. According to the learned counsel in paragraph 1 and 8 of the grounds, it is mentioned, 'whereas it has been made out to me.' The learned counsel referring to these words submits that there must be some other material from which the detaining authority must have come to the conclusion that it must have been made out to him that the detenu was acting in a manner prejudicial to the public order. We see no force in this submission also. As already mentioned, the opening para. is by way of preamble and the 8th para is a conclusion based on the incidents referred to in paragraphs 3 to 7. As mentioned by the Supreme Court in A. K. Ghosh v. State of West Bengal, : 1972CriLJ882 , the grounds must be read as a whole and not in parts, one isolated from other; and if so done it is not difficult to understand the meaning of the first and the 8th paragraphs. The learned counsel also referred to paragraph 3 of the counter wherein it is stated 'the nature and the process of the activities of the detenu, their magnitude and their impact on the public generally and the incidence of the evil in the locality are relevant factors which my predecessor had taken into consideration in arriving at his subjective satisfaction that the detenu should be detained.' The learned counsel points out that the incidence of the evil in the locality are relevant factors. He contends that the word 'incidence' denotes that there must have been several incidents. But there are not so many incidents as mentioned in the grounds and therefore the detaining authority has taken into consideration some other undisclosed material. Here again, we see no force in this submission. What is stated in the counter-affidavit is the gist of the conclusion. We cannot but point out that at least five incidents have been mentioned in the grounds of detention. Therefore, the averments in the counter-affidavit does not in any manner suggest that the detaining authority has taken into consideration some other incidents not mentioned in the grounds of detention.

9. The learned counsel finally submitted that all the material relied upon by the detaining authority has not been supplied to the detenu and that therefore the detention order must be quashed. He relied on some of the decisions of the Supreme Court. In Icchu Devi v. Union of India, AIR 1980 SC 1973 : (1980 Cri LJ 1308), their Lordships observed that if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu. Not only in this case but also in several other cases the Supreme Court has expressed the same view. But the question is whether in the instant case the detenu has not been supplied with the material relied upon and referred to in the grounds of detention. We have perused all the grounds. There is no reference to any particular document as such. Therefore, the detenu cannot complain that the documents relied upon were not supplied to him. The learned counsel however, advanced an extreme argument that all the material that was before the detaining authority should also be supplied to the detenu. We cannot agree with the learned counsel. In L. M. S. Ummu Saleema v. B. B. Gujaral, AIR 1981 SC 1181 (1981 Cri LJ 889), Chinnappa Reddy, J., who spoke for the Court observed thus :-

'In Khudiram Das v. State of West Bengal, : [1975]2SCR832 the Constitutional requirement of Art. 22(5) was stated as insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Art. 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Art. 22(5).'

It can, therefore, be seen that if there is a mere reference to a document and if from a reading of the grounds is can be gathered that the document as such was not by itself the basis for the grounds, the non-supply of such documents does not in any manner affect detention order. However, as a matter of fact, in the present case there is no reference to any such documents. In Beni Madhob v. State of West Bengal, : AIR1973SC2455 , their Lordships of the Supreme Court held that where the activities forming ground of detention were actually disclosed to a detenu in unambiguous terms and it furnished adequate information to enable him to make effective representation against his detention, non-disclosure of sources of information or the exact words of the information which formed the foundation of the order could not be complained of. Therefore, the extreme contention that the material which contained the source of information that was before the detaining authority should also be supplied, is without substance.

10. For all these reasons, we see no grounds to interfere with the order of detention. The writ petition is dismissed.

11. Mr. Mukramuddin, learned counsel for the petitioner makes an oral application for leave to appeal to the Supreme Court. We do not see that any substantial question of law of general importance, which requires to be decided by the Supreme Court, is involved in this case. The oral application is rejected.

12. Petition dismissed.


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