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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3230 OF 2013
Abubakar @ Bagla Rais Ansari
Age. 27 years, residing at
Plot No.27/A/6, Road No.12,
Bainganwadi, Govandi, ...Petitioner.
Mumbai - 400 043. (Detenu.)
v/s.
1.
The Commissioner of Police, Mumbai.
2. The State of Maharashtra
3. The Superintendent,
Nashik Road Central Prison,
Nashik. ...Respondents.
---
Mr.U.N.Tripathi, for the petitioner.
Mr.J.P.Yagnik, APP for the Respondent - State.
----
CORAM: A.S. OKA &
REVATI MOHITE DERE, JJ.
OCTOBER 18, 2013.
JUDGMENT (Per Revati Mohite Dere,J. ) :-
1. This petition, takes exception to the detention order ::: Downloaded on - 27/11/2013 20:27:29 ::: 2/8 cr.wp.3230.2013.doc bearing no.10/PCB/DP/Zone-VI/2013 dated 18 th June, 2013 issued under Section 3 (2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as 'the said Act') by the Commissioner of Police, Brihan Mumbai against the Petitioner/detenu.
2. The Petition raises several grounds for seeking quashing and setting aside of the order of detention. However, in our opinion, it is not necessary to set out all the grounds referred to in the petition, except to refer to ground 5(b) of the Writ Petition, which is reproduced hereinunder :-
5 (b) "The Petitioner says and submits that he is a Muslim by religion and has studied upto Std. VII in Urdu Medium from Municipal Urdu School, Govandi, Mumbai.
He is well versed with Urdu language only and able to read, write and understand Urdu script and no other.
The Petitioner says and submits that the detaining authority has furnished the grounds of detention to the detenu in English with Hindi translation and all other documents of the compilation. Thus, the Petitioner ::: Downloaded on - 27/11/2013 20:27:29 ::: 3/8 cr.wp.3230.2013.doc says and submits that he has not been communicated the grounds of detention in a language known and understood by the detenu. This amounts to non-
communication of grounds of detention, thus violating the first facet of Article 22(5) of the Constitution of India. The Petitioner further submits that since he is not able to understand either English or Hindi. It is therefore, the detenu could not make effective representation to Competent Authority at the earliest, thus violating the second facet of Article 22(5) of the Constitution of India. The Petitioner further submits that his School Leaving Certificate issued by Municipal Urdu School, Govandi, Mumbai, clearly spells out that he knows only Urdu. The Petitioner has also signed his Vakilpatra in Urdu and his other records of the compilation also shows that he is well versed with Urdu language only. Under the circumstances both the facets of Article 22(5) of the Constitution of India is violated. The order of detention is illegal and bad in law, liable to be quashed and set aside. Hereto annexed and marked EXHIBIT 'D' is a copy of the ::: Downloaded on - 27/11/2013 20:27:29 ::: 4/8 cr.wp.3230.2013.doc School Leaving Certificate of the detenu".
3. In response to the aforesaid ground 5(b), the detaining authority has filed its affidavit. It is stated that the petitioner/detenu has studied upto Std. VII in Urdu Medium from a Municipal Urdu School, Govandi, Mumbai, however the averment that he is well versed in Urdu language only; and is able to read, write and understand only Urdu language is false.
It is stated that though the petitioner/detenu has studied upto Std. VII in Urdu Medium from a Municipal Urdu School, Govandi, Mumbai, a letter dated 7th September, 2013 was received from the Head Master of the said School, in which he has stated that all students (of Urdu Medium) of Std. VII are taught all languages i.e .Hindi Marathi and English from standard V. The Detaining Authority has relied upon the said letter dated 7 th September, 2013, in support of the same. It is thus stated that according to the letter, the detenu has studied Hindi language and as such has working knowledge of Hindi language. It is further stated that although the petitioner had studied in an Urdu school, speaks and understands Hindi language. It is therefore contended, that the petitioner/detenu was ::: Downloaded on - 27/11/2013 20:27:29 ::: 5/8 cr.wp.3230.2013.doc communicated with the grounds of detention in a language known to him and as such there was no violation of Article 22(5) of the Constitution of India.
4. The principal ground which was urged before us, was that the grounds of detention that were served on the petitioner/detenu, were in a language i.e. English and its Hindi translation, which he could not read, resulting in infringment of his right guaranteed under Article 22(5) of the Constitution of India. It is pertinent to note that the petitioner/detenu has specifically averred and has relied on a School Certificate, which records that he was studying in a Municipal Urdu School, Govandi, Mumbai which was an Urdu medium school. The same has also not been denied by the detaining authority. The detaining authority has produced a certificate from the said School to show that the said School was also teaching Hindi, Marathi and English from Std. V. The said certificate is dated 7 th September, 2013, and has been issued after filing of the said petition. It merely states that Hindi was also taught from Std V.
5. We may note, that speaking a language is one thing ::: Downloaded on - 27/11/2013 20:27:29 ::: 6/8 cr.wp.3230.2013.doc and reading and writing a language is another. Merely because a person is conversant in a language, it cannot be necessarily inferred that he knows to read and write the said language.
Even otherwise, the script of Urdu language is distinct and different from the Hindi script i.e Devnagari Script. We may also note that in the absence of anything to the contrary to suggest /show that the petitioner was able to read and write in Hindi, the only conclusion/inference that can be drawn is that the grounds of detention which were served on the Petitioner deprived him of his right to make an effective representation under Article 22(5) of the Constitution of India.
6. According to us, non-communication of the grounds of the detention to the petitioner in a language which could be read by him i.e. in Urdu, clearly amounts to no communication at all, thereby violating the petitioner's fundamental right to make an effective representation against the same. As the law relating to preventive detention is visited with serious consequences, it is imperative that there is strict compliance to Article 22(5) of the Constitution of India.
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7. The word 'communicate' used in Article 22(5) of the Constitution of India, denotes a strong word. It means that sufficient knowledge of the basis facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of 'communicating' the grounds of detention to the detenu is to enable him to make a purposeful and effective representation.
Of course, where a detenu is uneducated i.e. cannot read any language, the grounds are to be verbally explained to him in a language he understands. Thus, in either case, 'communication' of the grounds of detention is not complete unless it is communicated in a language which the detenu understands.
This is the constitutional mandate of Article 22(5) of the Constitution of India.
8. We are satisfied, that in the present case, the petitioner/detenu was prevented from making an effective representation, under Article 22(5) of the Constitution of India in as much as, the documents that were supplied to him were in a language, which he could not read i.e in English and its Hindi translation, thereby depriving him of his right to make an ::: Downloaded on - 27/11/2013 20:27:29 ::: 8/8 cr.wp.3230.2013.doc effective representation. Thus, according to us non-
communication of the grounds of detention in a language known to the petitioner is fatal. Hence, we pass the following order:
(i) Rule is made absolute in terms of prayer clause (b) which reads thus:
"(b) That the order of detention being No. 10/PCB/DP/Zone-VI/2013 dated 18.06.2013 issued under section3(1) of M.P.D.A. Act,1981 by the Commissioner of Police, Mumbai against the detenu, be quashed and set aside and on quashing the order of detention, the detenu be released forthwith."
(ii) Parties to act upon an authenticated copy of this order.
(REVATI MOHITE DERE,J.) (A.S. OKA,J.)
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