Skip to content


Mohd. Khalil Vs. Delhi Administration and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 87 of 1982
Judge
Reported in23(1983)DLT62; ILR1983Delhi45
ActsConstitution of India - Article 22(5); National Security Act, 1950 - Sections 8
AppellantMohd. Khalil
RespondentDelhi Administration and ors.
Advocates: R.K. Jain,; P.K. Jain and; S.T. Singh, Advs
Cases ReferredPritam Nath Moon v. Union of India and
Excerpt:
.....period of twelve months from 28-6-82. the detention order is challenged mainly on the ground that grounds of detention were originally served in a language and script which he did not understand and despite his repeated requests he was not supplied with the grounds of detention in urdu till almost a month after his detention, as such it was not possible for him to make an effective representation as soon as possible. quashing the detention as being illegal,; 1. the detaining authority is bound to give the detenu an opportunity to make representation against his detention at the earliest and any unreasonable delay in furnishing a copy of the documents or grounds is a denial of such an opportunity rendering the detention illegal.; 2. furnishing of the grounds and documents in urdu on..........was received cm 5th july 1982. he also asserts therein that copies of the documents and grounds in urdu were supplied to the petitioner on 27th july, 1982. he does not indicate my reasons for the delay in supplying the grounds to the potitioner in urdu. (8) on 19th july, 1982, however, the petitioner made a representation in the urdu language and script to the lt. governor against his detantion. in paragraphs 31 and 32 of the said representation, he stated the following, as translated in english on the file of the authority : '31.that the copy of order of the detention of petitioner under n.s.a. is not legible and cannot be read. in this connection the petitioner as well as his relatives informed the commissioner or police by telegram that the petitioner knows only urdu and the grounds.....
Judgment:

Leila Seth, J.

(1) This is a petition for issue of a writ of habeas corpus as also for quashing the order of detention dated 28th June, 1982.

(2) Subsequently, on '31st May 1982, the Commissioner of Police passed another detention order under N.S.A. 1980. This order was not approved by the Administrator and the detention order was revoked on 10th June 1982, without being executed.

(3) Thereafter, on 28th June, 1982, the impugned detention order was passed. It was passed by Mr. S. Lal, the Commissioner of Police under section 3(2), of the N.S.A. 1980. It was, executed on the same date. The Administrator approved of it on 8th July 1982 under section 3(4) of N.S.A. 1980. The-Advisory Board's approval was forthcoming on 2nd/4th August 1982. The Administrator then confirmed the detention under section 12(1) on 9th August 1982. Under section 13 of N.S.A. 1980 he directed that the detenu be detained for a period of twelve months from 28th June, 1982.

(4) Mr. R. K. Jain appearing for the petitioner urged a member of points as particularised in the petition. However, I intend to deal with only one of them as the matter can be decided on that aspect alone. Learned counsel challenges the detention of the petitioner as lie submits there has been non-compliance with the provisions of Article 22(5) of the Constitution of India. The grounds of detention were originally served on the petitioner in a language and scrip which he did not understand; and despite his repeated requests he was not supplied with the grounds of detention in Urdu till almost a month after his detention. The grounds of detention and the documents annexed thereto were supplied to him in Under only on 27th July 1982. As such, though he was detained on 28th June 1982, it was not possible for him to make an effective representation, as soon as possible.

(5) There is no dispute on the facts. The petitioner was detained on 28th June, 1982. A copy of the grounds of detention were served on him in English and in Hindi Oil the 1st of July 1982. An endorsement was recorded in Urdu, to the effect that a copy of the order of detention in the above-mentioned two languages had been received by him. It was further recorded that the police officer, who had made over the grounds of detenion to him, had explained to him and told him that he could move against the said order to the Lt. Governor and the Advisory Board of the High Court of Delhi. Thereafter, it was slated, that the officer, who effected service, explained each and every thing to him. This endorsement has been signed by the petitioner in Urdu. '

(6) The petitioner does not know English or Hindi. As such, on 4h July 1982 a telegram was sent to the Commissioner of Police requesting that the grounds of detention and other documents be supplied in Urdu so that the petitioner could read them and prepare a reply. It was also stated therein that the grounds of detention already supplied are totally illegible and in Hindi and cannot be understood by the petitioner and as such he was being deprived of making an effective representation.

(7) Mr. B. Lal. Comunicationer of Police. Delhi, in his affidavit dated 6-9-1982 admits that the said telegram was received cm 5th July 1982. He also asserts therein that copies of the documents and grounds in Urdu were supplied to the petitioner on 27th July, 1982. He does not indicate my reasons for the delay in supplying the grounds to the potitioner in Urdu.

(8) On 19th July, 1982, however, the petitioner made a representation in the Urdu language and script to the Lt. Governor against his detantion. In paragraphs 31 and 32 of the said representation, he stated the following, as Translated in English on the file of the authority :

'31.That the copy of order of the detention of petitioner under N.S.A. is not legible and cannot be read. In this connection the petitioner as well as his relatives informed the Commissioner or Police by telegram that the petitioner knows only Urdu and the grounds of his detention under N.S.A. are not in Urdu hence the petitioner is helpless as he cannot submit a correct application. The petitioner is astonished to find that he has not received a legible copy of the order despite three telegrams sent to the Commissioner of Police. Neither the Commissioner has replied to the petitioner nor has given any document to him. 32. Thus it seems clearly that the police intentionally has done so, so that the petitioner may not be able to pursue the case. This is the main reason that the replies of the telegrams have not been given to the petitioner. The condition of the petitioner is quite hopeless as he has not been given the documents, that he can read. The petitioner is submitting this application before your kind honour requesting that he has been dealt with unjustly and he may be given the legible documents/copies of orders etc. so that he can move a fresh representation .before your kind honour.'

(9) This representation was received on 19th July, 1982 ..and rejected on 31st July 1982.

(10) The crux of the case is in the circumstances set out above has there been compliance with the provisions of Article 22(5) of the Constitution of India which require the authority making the order to communicate the grounds 'as soon as may be' to the detenu in order to afford him the earliest opportunity of making a representation against the order

(11) Section 8 of N.S.A. 1980 also provides that when a person is detained in pursuance of a detention order, the grounds are to be made available, as soon as may be, out ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detendon.

(12) Nothing has been indicated in the affidavit nor has anything been pointed out from the record showing any exceptional circumstances as to why the Urdu translation was not made available either within five days or within ten days, as prescribed; nor the reason for twenty two days' delay after the petitioner made a demand. It is quite clear that the authorities concerned, even assuming they did not know , earlier, were fully aware on 5th July, 1982 that the petitioner could not understand the grounds of detention and he required them to be furnished to him in Urdu the only language which he understood.

(13) In Hadibandhu Das v. District Magistrate. Cuttack and another, A.I.R. 1959 S.C. 43 it has been observed that supplying of the grounds to the detenu in the English language, running into 14 typed pages and referring to a large number of court proceedings, without supplying him with a translation in a script and language which he understood amounted to a denial of the right of being communicated the grounds and of being afforded an opportunity of making a representation against the order. This was despite the fact that the authority had orally explained the grounds to the detenu at the time of serving the order in English on 15th December. 1967 and had supplied an Oriya translation on 18th January, 1978.

(14) In the present case, the parties are at issue as to whether the grounds were, in fact, explained in Urdu or only the fact that the petitioner was entitled to make a representation to he Advisory Board and the Administrator, was explained to him. I need not decide this aspect of the matter in view of the fact that the grounds as typed in English consist of about 12' typed pages and the other documents run into 8 pages, thus totalling about 20 pages. Even assuming that there was a detailed oral Explanationn on 1st July, 1982, it is clear that this would not be sufficient to provide the detenu with adequate opportunity to make an effective representation against the complicated and complex grounds on which the order is based, and would amount to non-communication of the order.

(15) In Surjeet Singh v. Union of India and others : 1981CriLJ614 , the Supreme Court dealt with a similar matter and relied on the decisions in Hariikisan v. State of Maharashtra and others 1962 SC. 911. Nainmal Pertap Mal Shah v. Union of India and others : 1980CriLJ1479 (4) and Hadibandhu Das case (supra). The decision of the Supreme Court was to the effect that where the grounds of detention were supplied to the detenu in a language with which he was not conversant, the service of the 'grounds on him could not be considered under the circumstances to be an effective communication to him so as to afford him a real opportunity of making a representation against his detention. Consequently, the detention was held to be illegal.

(16) Sodhi Teja Singh appearing for the State, however, submitted that the fact that the grounds were sventually supplied in Urdu to the detenu on 27th July, 1982 indicated that the detenu had an opportunity to maks a further representation if he so wished.

(17) It is well settled law and has been reiterated time and again that the detaining authority is bound to give the detenu an opportunity to make a representation against his detention at the earliest and any unreasonable delay in furnishing a copy of the grounds or documents is a denial of such an opportunity rendering the detention heald. A recent decision of the Supreme Court on the subject is Pritam Nath Moon v. Union of India and others, A.I.R. 981 S.C. 9. In that case the detaining authority supplied the copy of the documents, which formed the basis of the grounds of detention, after a long delay of thirtytwo days. A representation had already been made by the detenu and so the copies were of no use to him to make an effective representationi. .

(18) In the present case, the petitioner had made a tepresentation on 19th July, 1982. He had complained therein as also much earlier on 4th July. 1982 that he could not make an effective representotion as the grounds and documents in Urdu had not been supplied to him. In the the circumstances the furnishing of the grounds and documents in Urdu to him only on 27th July, 1982 was in clear violation of section 8 of the N.S.A. 1980 and the provisions of Article 2(5) of the Constitution of India. No effective communication of the grounds had been made earlier. In any case no operative opportunity had been afforded to him to make an efficacious representation, as soon as possible, so that it could be considered as early as possible.

(19) The sluggishness of the detaining authority to comply strictly with the statutory safeguards as interpreted by judicial decisions, often results in a detenu being released, where detention on the facts of the case might otherwise be necessary. thereforee, once again. I think it is necessary to remind the respondents that they should follow the procedural law and comply with the requirements of the safeguards strictly, as reflected in the rulings of the Courts.

(20) For the reasons outlined above, the detention of the petitioner is held to be illegal; the rule is made absolute and it is directed that the petitioner be set at liberty forthwith.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //