03 March 1970
Supreme Court


Case number: Writ Petition (Civil) 32 of 1970






DATE OF JUDGMENT: 03/03/1970


CITATION:  1971 AIR  263            1970 SCR  (3) 872  1970 SCC  (1) 536  CITATOR INFO :  R          1971 SC 266  (7)  D          1973 SC1264  (3)  C          1982 SC1315  (25)

ACT: Jammu  &  Kashmir Preventive Detention  Act,  1964-Detention under  S.  3(2)  read  with  s.  5-Detenu’s  right  to  make representation  is defeated if grounds not explained to  him in  language  understood  by him or if  grounds  are  vague- Detention becomes illegal.

HEADNOTE: The petitioner was detained under the order of the  District Magistrate,  Jammu passed under s. 3 (2) read with s.  5  of the Jammu & Kashmir Preventive Detention Act, 1964 on  March 30, 1969.  He filed a petition under Art, 32 challenging  Ws detention.   Later  he. withdrew the original  petition  and with the leave of the court filed another.  In this petition it  was urged that the grounds of detention supplied to  him were  in  English which he as an illiterate person  did  not understand;  they  were  also not explained to  him  in  the language  understood by him.  It was further urged that  the grounds  were  vague.   On  behalf of  the  State  the  file relating to the detention of the petitioner was produced  in court  and attention was drawn to the copy off  the  grounds served on the petitioner at the bottom of which there was  a thumb-mark  alleged  to  be that of the  petitioner  and  an endorsement to the effect that the grounds were explained to the  detenu  in  Urdu.   The  Additional  Secretary  to  the Government filed an affidavit in reply to the first petition andthe Under Secretary in reply to the second petition. HELD : (i) It is absolutely necessary that when dealing with a  detenu who cannot read or understand English language  or any language at all, that the grounds of detention should be explained  to  him as early as possible in the  language  he understands  so that he can avail himself of  the  statutory right  of  making a representation.  To hand over to  him  a document  written  in  English and  to  obtain.  his  thumb- impression  on it in token of his having received  the  same does not comply with the requirements of the law which gives



a  very  valuable right to the detenu to  make  a  represen- tation. [877 B] (ii) Ile  endorsement  on  the copy of the  grounds  in  the original  file  were  in different inks  and  therefore  the document could not be taken at its face value.  In the  copy of  the  grounds filed with the affidavit on behalf  of  the State   in  reply  to  the  first  petition  there  was   no endorsement  to  the  effect  that  the  contents  had  been explained to the detenu in Urdu.  ’Me affidavit filed by the Under-Secretary in reply to the second petition could not be relied on because it bore erasures and substitution of words at a significant place. [875 H-876 C] When there was contradiction between the affidavits filed by the  petitioner and by the State the Court had to  determine which one was acceptable, giving all the benefit of doubt to the detenu.  In the present case the affidavit of the detenu had to be preferred and it must be held that the requirement of explaining the grounds to the detenu in his own  language was not complied with [875 D; 876 H] (iii)  The  grounds  charged  the  petitioner  with   having conspired  with some leaders of Democratic  conference,  and having incited landless people 8 73 of  Rspura Tehsil to forcibly occupy the land  comprised  in Nandpur  Mechaof RSpura Tehsil to forcibly occupy  the  land comprised in Nandpur Mechato evict them.  No details of  the leaders  of the conference or of the persons incited or  the dates on which he conspired or incited the squatters or  the time  when  such conference took place were  mentioned.   It would  be  impossible for anybody to make  a  representation against  such  grounds  which, on the  authorities  of  this Court, must be’ held to be vague. [877 D-E] Accordingly  the  detention  of  the-  petitioner  must   be declared illegal.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 32 of 1970. Petition  under Art. 32 of the Constitution of India  for  a writ in the nature of habeas corpus. H.   K. Puri, for the petitioner. R.   N. Sachthey, for the respondent. The Judgment of the Court was delivered by Hidayatullah  C.J.  The petitioner Chaju  Ram  was  detained under  the orders of the District Magistrate,  Jammu  passed under    S.  3  (2) read with S. 5 of the  Jammu  &  Kashmir Preventive Detention Act, 1964 on March 30, 1969.  The order was served on him the same day and on the original order, we find  an  endorsement by the Station House  Officer  to  the effect  that  in compliance with the  District  Magistrate’s order, he arrested Chaju at 6.30 P.M. and that the  contents of  the order were explained to him in Urdu by reading  over the  same to him in token of which his thumb impression  was obtained on the face of the order.  Bneath this endorsement, there is a thumb impression although it is not stated  there whose  thumb  impression it is.  In any event, this  was  in compliance with the direction given in the order itself that notice of the order should be given to Sh.  Chaju by reading over   the same to him. As  required  by S. 8 of the Act, grounds of  the  order  of detention had to be disclosed to Chaju.  It is claimed  that this  was  done  on April 6, 1969 and that  order  has  been produced -before us.  The grounds stated as follows               "1.  That  Shri  Chhaju  s/o  Gura  is   (sic)



             conspiracy   with   some  other   leaders   of               Democratic Conference incited landless  people               of RSpura Tehsil to forciably occupy the  land               comprised in Nandpur Mechanised Farm, with               the  full knowledge that such action on  their               part was likely to lead to disturbances "in  a               sensitive border area.               2.    As a result of his activities some  area               of  the Nandpur Farm was occupied by  landless               people  between  18-3-69 to 25-2-69  who  also               constructed  ’Jhuggies’  on it.   Chhaju  told               them   to  persist  in  their  illegal  L   10               SupCI(NP)70-11               8 7 4               activities and urged them to resist  violently               any  attempt to evict them.  He told them  the               State  Government  would agree to  allot  this               land to them only if a situation were  created               in  which two or three persons were killed  by               Police firing.               3.Squatters  were evicted on 26-3-68  some  of               whom  offered  resistance.  Even  after  this,               Chhaju continued his campaign of asking people               of forcibly occupy vacant Government land on a               massive  scale  with the avowed  objective  of               repeating a "Naxalbari" in our State." We shall come to these grounds later.  Chaju did not make  a representation  against  his detention and  on  August  29., 1969,  the Advisory Board held that the District  Magistrate was fully justified and that there was sufficient cause  for his detention. Chaju made a petition- under Art. 32 of the Constitution for his release by a writ of habeas, corpus in this Court.  Rule nisi  on this petition was issued on December 2, 1969.   The petition was made from jail and contained not much  material except  to  say that he had been illegaly detained  for  one year  and  was languishing in jail.  In reply  to  the  rule nisi, an affidavit was filed by the Additional Secretary  to the Government of Jammu & Kashmir Home Department.  However, Chaju withdrew that petition with permission to file another petition  and he has filed a second petition on January  20, 1970.   In this petition he has stated in paras 3, 4  and  5 that  he  was  given some papers five  days  after  Baisakhi (which  fell  on  April 13, 1969) and  being  an  illiterate person, he could not read the contents of the papers  given. He also alleged that he was not explained the grounds of his detention  and  therefore he was deprived of  his  right  of making a representation under the statute.  He also  alleged that  the  grounds on which his detention had  been  ordered were  vague  and  were  not sufficient for  him  to  make  a representation if he cared. At  the  hearing  we confined the case  only  to  these  two points,  namely,  whether Chaju was served  the  grounds  of detention on April 6, 1969 as claimed in the reply affidavit and  whether the contents of the grounds were  explained  to him  in a language understood by him, and  secondly  whether the grounds were sufficiently precise and detailed for Chaju to  make  a proper representation as he was entitled  to  do under the Preventive Detention Act. In regard to the first question, there is an affidavit sworn to by the Under-Secretary to the Government filed in  answer to  the second petition made in this, Court.,, It is  stated in that affidavit 875 that  the grounds were duly served upon the detenu,  and  In



token  of  his having understood the same,  he  affixed  his thumb impression thereon.  In answer to the allegation  that the ground were served on him five days after Baishakhi, the affidavit does not seek to controvert it but only says  that the detention order was duly read over to the detenu and the contents  of  the order explained to him in he  language  he understood.   Therefore the claim of the Government is  that on  both the occasions, that is to say, when  the  detention order  was  served  on him and also when  the  grounds  were handed over to him, the contents of the documents were  read over  to  him  and  translated to him  in  the  language  he understood  (Urdu) and therefore there was  compliance  with the provisions of the law. Now,  if  we accept the affidavit of the Government,  it  is obvious  that  the affidavit of the detenu  must  be  false. Contrary-wise, if we accept the affidavit of the detenu,  we must  reject the material placed before us on behalf of  the Government.   In view of the contradictory nature  of  these two  affidavits,  we went into the matter very  closely  and satisfied   ourselves  which  of  the  two   affidavits   is acceptable,  giving all the benefit of doubt to the  detenu, To begin with, the order of detention had an endorsement  on it that the order should be communicated to Chaju by reading over  the same to him.  This was -probably done  because  we find an endorsement of the Station House Officer that he had read  it over to him in Urdu.  The thumb impression on  this document  does not state that it is the thumb impression  of Chaju,  but as be has not raised a controversy about it,  we accept it as his. In contrast to this order. the grounds of detention did  not have an endorsement that the grounds should be explained  to Chaju  in the language he understood.  In the  affidavit  in answer  to  the first petition, the grounds were  filed  but there was no endorsement on the copy of the grounds  showing that  it  had been so read to him in Urdu and  that  he  was explained  the contents.  Mr.. Sachthey, however brought  to our  notice  the  original file in which  the  copy  of  the grounds which was served upon the detenu has an  endorsement in Urdu that they had been read over and fully explained  to him  in Urdu.  There is a thumb impression and  against  the thumb  impression  is noted that it is that of  Chaju.   The date is April 6, 1969. The question is whether in view of this endorsement we  must hold  that  Chaju  was properly  explained  the  grounds  of detention in Urdu which he understands.  In our judgment, we cannot accept these documents at their face value.  To begin with.  the three endorsements on the copy. that is  to  say, (a) that the document was read over to him in Urdu, (b)  the thumb impression 876 and  (c) the note that it is the thumb impression of  Chaju, are  in  two  different inks if not three.   This  raised  a suspicion,  that these might have been written later  around the  thumb impression taken from Chaju as was done when  the order  of detention was served on him.  It may  be  recalled that  at that time also there was an endorsement in  English that  it  had been read over to him, but  nothing  had  been written around the thumb impression of Chaju whether in Urdu or  otherwise to show that the thumb impression was that  of Chaju.   We looked carefully at the affidavit filed in  this Court which is a cyclostyled document.  We find in Para 6  a correction in a very significant place.  This correction has been  made by typing certain words in the place between  two lines  with an oblique showing that it is an omission.   The words  beneath those added words have been  erased  although



some  of them in part still appear.  Now it  is  significant that the words which have been added are as follows: .lm15 "  understood the same he"; and the Para now read as follows "Referring to Para 7 of the petition, I say that the grounds were  duly  served upon the detenu and in  token  of  having understood   the  same  he  affixed  his  thumb   impression thereon." (under lining by us) The underlined words are the words which have been added  in the  place between the two lines.  It appears that what  has been  erased  must be some other words appropriate  to  what preceded  and what followed.  In our opinion  the  paragraph must have read :               "Referring  to  Para 7 of the petition  I  say               that  the  grounds were duly served  upon  the               detenu  and  in token of having  received  the               same he affixed his thumb impression thereon." The  underlined  words were erased and  others  substituted. There  would be no occasion to erase one set of writing  and write another if the words were there. of course Mr. Sachthey ingeniously suggests that this may be a case of erroneous typing necessitating the correction; but this correction comes at a significant spot after the detenu has sworn an affidavit that he was not explained the grounds of  the detention in the language which he  understood,  and further  the  original document which is produced  does  not seem to bear authenticity because of the changes of ink.  In these circumstances and regard being had to the fact that on the previous occasion in the affidavit there was no  mention of  having read over the grounds to him in the  language  he understood, we are constrained to hold that we                             877 should  not go by the affidavit of the Under-Secretary,  but in  preference  accept  the affidavit of  the  detenu.   The detenu  is  an  illiterate  person  and  it  is   absolutely necessary that when we are dealing with a detenu who  cannot read  or understand English language or any language at  all that the grounds of detention should be explained to him  as early as possible in the language he understands so that  he can  avail  himself  of  the statutory  right  of  making  a representation.  To hand over to him the document written in English and to obtain his thumb impression on it in token of his  having  received  the same does  not  comply  with  the requirements of the law which gives a very valuable-right to the   detenu  to  make  a  representation  which  right   is frustrated  by handing over to him the grounds of  detention in an alien language.  We are therefore compelled to hold in this case that the requirement of explaining the grounds  to the-detenu in his own language was not complied with. Even  as  to  the grounds, we have something  to  say.   The grounds  charge him with having conspired with some  leaders of Democratic Conference and having incited landless  people of  RSpura Tehsil to forcibly occupy the land  comprised  in Nandpur Mechanised Farm and to have persuaded them to resist violently  any  attempt to evict them.  No  details  of  the leaders  of the Conference or of the persons incited or  the dates on which he conspired or incited the squatters or  the time  when  such conference took place, are  mentioned.   It would  be  impossible for anybody to make  a  representation against such grounds.  These grounds, on the authorities  of this  Court, too numerous to be cited here, must be held  to be vague.  Therefore on both the twin grounds, namely,  that he  was deprived of his right to make a  representation  and also  because the grounds in themselves were very vague,  we



must hold that there was no compliance with the law as  laid down  in the Jammu & Kashmir Preventive Detention Act.   The result, therefore, is that the detention must be declared to be unlawful and Chaju must be declared to be entitled to his liberty.   He  is ordered to be released.   The  detenu  was questioned  by us and he expressed a desire that he may  not be released in Delhi, because he has no means of going back. He asked to be released in Jammu.  We direct therefore  that he  shall  be  taken  back to the  place  where  he  was  in detention in Jammu and released within the shortest possible time. G.C.                                                Petition allowed. 8 78