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Nafisa Khalifa Ghanem Vs. Union of India and ors - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Case NumberWrit Petition (Criminal) No. 629 of 1980
Judge
Reported in(1982)1SCC422a
AppellantNafisa Khalifa Ghanem
RespondentUnion of India and ors
DispositionPetition Allowed
Excerpt:
.....preventive detention — grounds of detention — must be explained in the language and script understandable to the detenu — detenu specifically stating to be knowing arabic language only — hence, explaining the grounds in hindi inconsequential — averment in the counter-affidavit that the detenu made his submission in hindi before advisory board, wholly inadmissible in absence of testimony of any reliable witness -- “that the detenu did not understand english nor he knows english. the grounds of detention were not explained to him nor the detention order was explained to the detenu in the language known by the detenu. the detenu can only sign paper in arabic. the detenu knows hindi. the detenu had never pleaded that he knew english or hindi......understands only arabic. the detenu knows hindi. when the case of the detenu came up before the advisory board on february 29, 1980, he made his submissions in hindi and he was interrogated by the members and the chairman of the advisory board in hindi and he gave replies in hindi, even though arrangements were made to keep an interpreter knowing arabic.”3. the reply in para 17 appears to be extremely vague and totally irrelevant. when the detenu said that he did not know any language except arabic, it was futile to contend that the grounds were explained to him in hindi. the detenu had never pleaded that he knew english or hindi. the basis for the averment made in the counter-affidavit was that the detenu had made his submissions in hindi before the advisory board. this.....
Judgment:

S. MURTAZA FAZAL ALI, J. (Vacation Judge)

1. This is an application by the wife of the detenu praying that the detenu be released as the order of detention passed against him is illegal. In support of the rule, Mr Ramjethmalani, learned Counsel for the detenu submitted three points before me. In the first place it was argued that although the detenu had taken a specific plea in para 17 of the petition and Ground XIII that being an Arab, he did not know English yet the grounds served on the detenu were not explained to him at all in a language which he could understand. In this connection, the allegations in para 17 may be extracted as follows:

“That the detenu did not understand English nor he knows English. The grounds of detention were not explained to him nor the detention order was explained to the detenu in the language known by the detenu. The detenu can only sign paper in Arabic. He understands only Arabic.”

2. It is clear from the averment of the detenu that he knew only Arabic and no other language. A similar averment was made in Ground XIII of the petition. This averment was sought to be controverted by the respondents in their reply in para 17 where the Under-Secretary, Mr Ramanathan stated as follows:

“Para 17 is denied. It is stated that it is not correct that the detenu understands only Arabic. The detenu knows Hindi. When the case of the detenu came up before the Advisory Board on February 29, 1980, he made his submissions in Hindi and he was interrogated by the members and the Chairman of the Advisory Board in Hindi and he gave replies in Hindi, even though arrangements were made to keep an interpreter knowing Arabic.”

3. The reply in para 17 appears to be extremely vague and totally irrelevant. When the detenu said that he did not know any language except Arabic, it was futile to contend that the grounds were explained to him in Hindi. The detenu had never pleaded that he knew English or Hindi. The basis for the averment made in the counter-affidavit was that the detenu had made his submissions in Hindi before the Advisory Board. This assertion is wholly inadmissible in evidence in absence of any evidence of any person who was actually present before the Advisory Board and saw the detenu actually making his submissions in Hindi. No such affidavit or record has been produced before me.

4. Mr Rana, learned Counsel for the State of Maharashtra, submitted that in para 4 at p. 91, it was clearly mentioned that the grounds were explained to the detenu in Hindi on January 16, 1980. Here also no details appear to have been given. It is not mentioned as to who explained the grounds to the detenu in Hindi nor was any affidavit by the person who had explained the contents of the grounds in Hindi been filed in support of this averment. Mr Rana however relied on an endorsement made in the ground which shows that some inspector had explained the ground in Hindi. Even this fact is not mentioned in the counter-affidavit filed by the State in this petition. In these circumstances therefore it is difficult to believe that the endorsement was made at the time when the grounds were served on the detenu.

5. In the case of Hadibandhu Das v. D.M., Cuttack1, it was pointed out that merely explanation of the contents of the grounds is not sufficient but the script of the grounds in the language which the detenu understands has to be furnished to the detenu. This important safeguard also does not appear to have been complied with. Unfortunately, the difficulty is that the detaining authorities do not seem to realise that orders of detention which touch the valuable rights of citizens and their liberty are matters of moment and cannot be dealt with in a casual or routine manner. The necessary safeguards laid down by this Court and enshrined in Article 22(5) of the Constitution have to be complied with however onerous and difficult the task may be. Moreover with huge resources at the command of the State, it is not at all difficult for the detaining authority to see that these little things are complied with so that the detenu does not complain that the authorities try to play with his liberty. In these circumstances, therefore, I am satisfied that there is no cogent proof in this case that the detenu who admittedly is an Arab knew Hindi at all or that the grounds were actually explained and translated to him. Indeed if the detenu did not know Hindi, explaining the grounds in Hindi to him is absolutely of no consequence. On this ground alone, the detenu is entitled to be released as his continued detention becomes legally invalid.

6. Another point raised by Mr Ramjethmalani was that although the request for documents was made by the detenu on March 14, 1980 and received by the detaining authority on March 19, 1980, the documents were despatched on April 16, 1980. Mr Rana tried to explain the delay on various grounds namely that certain holidays intervened and so on but these reasons do not appear to be convincing. In matters like these, the documents have to be supplied with the utmost despatch. This Court has recently pointed out that a demand for documents should not be taken lightly but the detaining authority must be prepared to supply at least those materials or documents which are clearly mentioned in the grounds of detention and he must have those materials ready with him so as to be given to the detenu as and when asked for. We have condemned the dilatory procedure adopted by the detaining authority in referring the question of supplying of documents to various authorities and inviting their comments. It is obvious that the detenu cannot make any effective representation unless he gets copies of the documents which are expressly mentioned in the grounds of detention. Here also the explanation given by the detaining authority does not appear to me to be satisfactory or convincing.

7. Lastly, it was pointed out that although the representation was received by the detaining authority on February 25, 1980, the representation was rejected on March 13, 1980, a day after the Advisory Board had given its opinion. The Collector's remarks which were sent for were available to the detaining authority as far back as on March 6, 1980 and there could be no reason for the detaining authority to have deferred its decision on the representation till the receipt of the opinion of the Advisory Board. This Court has held that the detenu has an independent constitutional right to have the representation considered by the detaining authority irrespective of whatever the Advisory Board may do. In the instant case, though the respondents do not admit that they awaited the decision of the Advisory Board, the facts put together lead to the irresistible inference that the detaining authority waited for the opinion of the Advisory Board.

8. For all these reasons, therefore, I am clearly of the opinion that the continued detention of the detenu is legally invalid. The application is accordingly allowed and the detenu is directed to be released forthwith.


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