JUDGMENT Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner - detenu Santosh Bhau Panchal has impugned the order dated 18.5.2001 passed by the first respondent Mr. M.N. Singh, Commissioner of Police, Brihan Mumbai detaining him under Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981)(Amendment - 1996).
The detention order along with the grounds of detention was served on the detenu on 14.10.2001, (according to the respondents, on the date of his arrest i.e. 21.5.2001 the detenu refused to accept the service of the detention order and the grounds of detention.) True copies of the detention order and the grounds of detention are annexed as Annexures A and B respectively to this petition.
A perusal of the grounds of detention (Annexure B would show that the impugned order is founded on one C.R. i.e. C.R. No. 187 of 2000 under Sections 394, 397, 342, 34, 109 and 411 of the I.P.C. r/w Sections 37(a) and 135 of the Bombay Police Act and Sections 4, 25(1-b), 27 and 35 of the Arms Act registered on the basis of a complaint dated 16.11.2000 lodged by Sahadeo Dhepe at Dongri Police Station and in camera statement of two witnesses namely A and B which were recorded on 21.3.2001 and 10.4.2001 respectively.
Since in our judgment, a reference to the prejudicial activities of the petitioner - detenu contained in the said C. R. and in camera statements is not necessary for the adjudication of the solitary ground pressed by learned Counsel for the petitioner detenu i.e. ground No. 6(A) pleaded in the petition, we are not adverting to them.
3. We have heard learned Counsel for the parties.
Ground No. 6(A) in substance is that whereas in para 8 of the original grounds of detention (in English) the petitioner - detenu has been apprised that he had a right to make a representation to the State Government, in para 8 of the Marathi translation of the grounds of detention what has been communicated to him is that he is capable/competent to make a representation.
Mr. Tripathi learned Counsel for the petitioner - detenu urged that on account of this infirmity in the translation, the petitioner - detenu's fundamental right to make an effective and purposeful representation guaranteed under Article 22(5) of the Constitution of India has been impaired.
4. Ground No. 6 (A) has been replied to in para 7 of the return of the Detaining Authority. The Detaining Authority has averred therein that it is denied that in para 8 of the grounds of detention furnished to the detenu in Marathi, the detenu has not been apprised of his right of making a representation to the State Government. It has also been averred that it is denied that the detenu's right to make an effective and purposeful representation, under Article 22(5) of the Constitution of India, was impaired.
We have perused the averments contained in ground No. 6(A) of the petition, those contained in para 7 of the return of the Detaining Authority wherein the said ground has been replied to, perused para 8 of the original grounds of detention and the Marathi translation of the grounds of detention and heard learned Counsel for the parties. In our judgment, the pleading in ground No. 6(A) of the petition is correct. We have ourselves gone through the Marathi translation of para 8 of the grounds of detention and what we find is that therein it has been mentioned that the detenu has been informed that in case he had any grievance or complaint against the detention order, he was fully capable of making a representation to the State Government etc. In our judgment, the expression fully capable cannot be equated with the word 'right'. The expression 'fully capable' conveys that in case the detenu wanted he could make a representation. On the converse, the word 'right' clearly and categorically means that it was the right of the detenu to make a representation to the State Government against the detention order.
6. Article 22(5) of the Constitution of India casts an obligation upon the Detaining Authority, as soon as may be, to communicate to the detenu the grounds of detention and to afford to him the earliest opportunity to make a representation against the detention order. This is obviously because, unless the grounds are communicated to the detenu he would not be able to exercise his right of making a representation at the earliest opportunity.
The right of making a representation at the earliest opportunity can only be exercised by the detenu if the grounds of detention are furnished to him in a language known to him. It is implicit in Article 22(5) of the Constitution of India that where grounds of detention are furnished to the detenu in a language known to him, the translation should be true and faithful; at any rate, convey the meaning contained in the original.
7. In our judgment, what is conveyed in para 8 of the original grounds of detention is that the detenu had a right to make a representation to the State Government and that conveyed in para 8 of the Marathi translation of the grounds of detention is that he was capable of making it. We have already given our reasons as to why the expression "right to make a representation" cannot be equated with the expression "capable of making a representation."
8. In our judgment, since the detenu was not apprised in para 8 of the Marathi translation of the grounds of detention that he had a right to make a representation to the State Government, his fundamental right under Article 22(5) of the Constitution of India to make a representation to the State Government has been violated and the logical imperative is that the impugned detention order cannot be sustained in law.
9. In the result : we allow this writ petition ; quash and set aside the impugned detention order ; direct that the petitioner detenu Santosh Bhau Panchal be released forthwith unless wanted in some other case ; and make the rule absolute.