1 jg.cri.wp 324.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Writ Petition No. 324 of 2017
Vasim Khan @ Raja S/o Iqbal Khan
aged about 30 years, occu. Private,
R/o Big Tajbagh beside
Sindhiban Almariwale, Police Station
Sakkardhara, Nagpur
City, Tah. & District Nagpur. (In Jail) .... Petitioner
// Versus //
(1) The State of Maharashtra
Through its Secretary,
Home Department, (special)
Mantralaya, Mumbai-32.
(2) State of Maharashtra,
Through Commissioner of Police,
Nagpur, Tah. & Dist. Nagpur.
(3) State of Maharashtra,
Police Officer, detention Wing,
Crime Branch, Nagpur. .... Respondents
Shri A. B. Moon, Advocate for the petitioner
Shri S. S. Doifode, Additional Public Prosecutor for the respondents
CORAM : SMT. VASANTI A NAIK AND
M. G. GIRATKAR, JJ.
DATE : 27-9-2017.
ORAL JUDGMENT (Per : SMT. VASANTI A NAIK, J.) Rule. Rule made returnable forthwith. The criminal writ petition is heard finally at the stage of admission with the consent of the .....2/-
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2 jg.cri.wp 324.17.odt learned counsel for the parties.
2. By this criminal writ petition, the petitioner challenges the order passed by the Commissioner of Police, Nagpur City dated 11-12-2016 detaining the petitioner under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981. The petitioner is also aggrieved by the order of the State Government confirming the order of the detaining authority.
3. The order of the detention, dated 11-12-2016, was passed on the basis of two crimes that were registered against the petitioner and two in-camera statements recorded by the Assistant Commissioner of Police, Sakkardara, namely of witness - A and witness - B. The grounds of detention as also the translated copies of the other documents were supplied to the petitioner along with the order of detention, in Hindi language. The petitioner did not make any representation against the order of detention, though it is claimed by the petitioner and denied by the respondents that the wife of the petitioner had made a representation. The detaining authority had recorded a finding that the petitioner was a 'dangerous person' as defined under the provisions of the Act and it was necessary to detain him with a view to curb his .....3/-
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3 jg.cri.wp 324.17.odt dangerous activities. The order of detention of the petitioner was passed in view of the registration of two offences against the petitioner. On 15-7-2016, C.R. No. 169/2016 was registered on the basis of the report lodged against the petitioner for joining unlawful assembly, for being armed with deadly weapons, for rioting etc. The other crime was registered against the petitioner bearing C.R. No. 236/2016 for the offence of extortion, punishable under Section 386 of the Penal Code. Apart from the two aforesaid offences on which the subjective satisfaction of the detaining authority was based, the detaining authority had also relied on the in-camera statements of two witnesses viz. witness - A and witness - B, who had mentioned in their statements that they were not ready to openly come forward to give any statement against the petitioner - detenu as there was eminent threat to their life, if they do so. The grounds of detention therefore relate to the registration of the offences against the petitioner bearing Crime No. 169/2016 for the offences punishable under Sections 143, 144, 147, 148, 427 and 324 of the Penal Code and Crime No. 236/2016 for the offence punishable under Section 386 of the Penal Code and the two in-camera statements of the witnesses. The petitioner has challenged the order of the detaining authority as also the order of the State Government confirming the same.
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4. Shri Moon, the learned counsel for the petitioner submitted that the translated copies of the grounds of detention supplied to the petitioner were faulty and hence the right of the petitioner to make a representation against the order of the detaining authority was affected. It is submitted that an entirely different story than the one that is mentioned in ground no. 8.1.2, in respect of Crime No. 169/2016 is stated in the Hindi translation of the grounds supplied to the petitioner. It is submitted by referring to the order of detention and the hindi translation thereof that the allegations in the complaint pertaining to Crime No. 169/2016 are different in the order of detention and the hindi translation. It is submitted that live link is snapped, inasmuch as the last in-camera statement was recorded on 12-10-2016 and the order of detention was passed on 11-12-2016. It is submitted that there is no explanation whatsoever in respect of the delay in passing the detention order, in the affidavit in reply filed on behalf of the respondent no. 2. It is submitted that it is stated in the affidavit in reply that the statements of the two secret witnesses were recorded on 12-10-2016, the Police Inspector in Police Station, Sakkardara had forwarded the proposal to the Commissioner of Police on 19-10-2016 and the proposal was received by the Crime Branch on 2-11-2016. It is submitted by placing reliance on the judgment reported in 2013 ALL MR (Cri) 3870 and the unreported .....5/-
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5 jg.cri.wp 324.17.odt judgment dated 18-4-2017 in Criminal Writ Petition No. 64/2017 that if the delay in passing the order of detention is not explained, the order of detention would be liable to be set aside. The learned counsel relied on the judgment reported in 1993(3) Mh.L.J. 261 to substantiate his submission that the right of the detenu under Article 22(5) of the Constitution of India to make a representation would get affected if a wrongful translation of the grounds of detention is supplied to the detenu.
5. Shri Doifode, the learned Additional Public Prosecutor appearing for the respondents supported the impugned orders. It is submitted that though there are some minor errors in the translation of the ground of detention bearing no. 8.1.2, the said error is not material, more so, when the petitioner was supplied with the translated copy of the report-complaint lodged by the complainant in Crime No. 169/2016 that is referred to, in ground no. 8.1.2. It is submitted that the main allegation in ground no. 8.1.2 is that the petitioner and his associates had obstructed the complainant - autorickshaw owner and had assaulted the complainant and injured him. It is submitted that in view of the minor discrepancy in the translated grounds, it cannot be said that right of the petitioner to make an effective representation was hampered. It is .....6/-
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6 jg.cri.wp 324.17.odt submitted that there is no merit in the submission made on behalf of the petitioner about the delay. It is submitted that the in-camera statements were recorded on 12-10-2016, the Police Inspector in Sakkardara Police Station had sent the matter to the Assistant Commissioner of Police on 19-10-2016, where from it was sent to the Deputy Commissioner of Police on 20-10-2016 and thereafter to the Additional Commissioner of Police (South Division). It is stated that after the view/opinion was expressed by the Additional Police Commissioner on 26-10-2016, the impugned order of detention was passed on 11-12-2016. It is stated that it cannot be said in the aforesaid set of facts that the live link was snapped and there was an inordinate delay in passing the order of detention. The learned Additional Public Prosecutor relied on the judgment of the Hon'ble Supreme Court, reported in 1974(1) SCC 594 to substantiate his submission that mere delay in making the order is not sufficient to hold that the detaining authority must not have been satisfied about the necessity of the detention order. Reliance is also placed on the judgment reported in 1988(3) SCC 153 to submit that the rule as to unexplained delay in taking action is not inflexible and the order of the detaining authority cannot be quashed unless the Court finds that the grounds are stale and illusory.
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6. On a perusal of the material on record, we are inclined to uphold the submission made on behalf of the petitioner that the impugned orders are liable to be quashed and set aside as the right of the petitioner under Article 22(5) of the Constitution of India to make a representation was affected due to faulty translation supplied by the detaining authority to the petitioner. The translation of the grounds in hindi language is not the true translation of the grounds of detention. The errors in the translation are not minor or clerical. The Crime, bearing No. 169/2016 was considered by the detaining authority as one of the grounds of detention and the same was referred in ground nos. 8.1.1 and 8.1.2. In ground no. 8.1.2 of the order of detention, it is mentioned that the complainant had lodged the report on 15-7-2016 at 4.00 p.m. that while he was travelling in an autorickshaw from Big Tajbagh, his autorickshaw bumped due to the road breaker and at that time, the associate of the petitioner, namely Mayur Nevare who was standing near the road said that there was less air pressure in the tyres of the autorickshaw. It is alleged in the complaint that on this, the complainant replied that the "height of the speed breaker should have been less". It is alleged that on hearing this, the associate of the petitioner got angry and abused the complainant in filthy language and said that "he had not made the speed breaker" ( LihM czsdj eSus FkskMh .....8/-
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8 jg.cri.wp 324.17.odt cuk;k). While returning, the autorickshaw was stopped by the petitioner and his associates and by referring to the comment of the complainant that the speed breaker should not have been that big, the complainant was assaulted with wooden rod on his ear, nose and back. It would now be necessary to consider the hindi translation of ground no. 8.1.2 in the order of detention. In the Hindi translation, it is mentioned that when the complainant was travelling in a autorickshaw near Bada Tajbagh, the autorickshaw bumped on the road due to the road breaker. At that time, Mayur Nevare told the complainant that there was less air pressure in the tyres of the autorickshaw. On this, the complainant stated that "I have not made the speed breakers". After that, while the complainant was returning with the autorickshaw on the same road, the petitioner and his associates assaulted the complainant as he had stated that "why the speed breaker did not have a lesser height". A totally incorrect translation of the incident that was alleged in the complaint in Crime No. 169/2016 is conveyed to the petitioner by the Hindi translation supplied to him. "That I had not made the speed breaker" ( czsdj eSus FkskMh cuk;k) was said by the associate of the petitioner but in the Hindi translation "czsdj eSus FkskMh cuk;k" is said to have been uttered by the complainant. Also, there is no mention of the allegation in the complaint .....9/-
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9 jg.cri.wp 324.17.odt that the complainant had replied on the utterance of Mayur Nevare about less air pressure in the tyres of the autorickshaw that "the speed breaker should have had a lesser height", in the Hindi translation. The said words are totally absent in the Hindi translation of ground no. 8.1.2. It is rightly submitted on behalf of the petitioner that since the Hindi translation was faulty on the material allegations in the complaint in Crime No. 169/2016, the petitioner was not able to make a effective representation as his right to make the same was affected.
7. On the submission in respect of the delay in passing the order of detention and snapping of the link with the grounds of detention, we find that after recording the in-camera statements of witness - A and witness - B on 12-10-2016, the Police Inspector in Police Station, Sakkardara took a view that it was necessary to immediately detain the petitioner under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act and he had sent the proposal for detention of the petitioner on 19-10-2016 to the Assistant Commissioner of Police. The detention order is passed on 11-12-2016. Though a specific ground in regard to unexplained delay in making the order of detention is raised in the petition, there is no explanation, much .....10/-
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10 jg.cri.wp 324.17.odt less, any satisfactory explanation in respect of the ground of delay and the snapping of the live link. It is only stated in the affidavit in reply that the statements of the secret witnesses were recorded on 12-10-2016, the Police Inspector in Sakkardara Police Station forwarded the proposal through proper channel to the Commissioner of Police on 19-10-2016, the proposal was received by the Crime Branch on 2-11-2016 and after preparing the relevant documents, the detention order was passed on 11-12-2016. We find that the explanation for the delay is far from being satisfactory. It was sought to be canvassed on behalf of the respondents by referring to the original case papers pertaining to the proposal of detention that from the Office of the Deputy Commissioner of Police, the proposal was dispatched to the Additional Commissioner of Police, South Division on 20-10-2016 and the Additional Police Commissioner after expressing his opinion had transmitted the file to the Commissioner of Police on 26-10-2016 with the views expressed by him. Even if we accept the submission made on behalf of the learned Additional Public Prosecutor which is not a part of the affidavit in reply, still we find that there is some delay in making the order of detention on 11-12-2016. The order of detention is passed more than one and half months after the file was reached to the Commissioner of Police - detaining authority. We do not appreciate the submission made on behalf of the respondents that the .....11/-
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11 jg.cri.wp 324.17.odt said time was required for preparing the copies of the documents that were required to be supplied to the detenu as in view of the proposal, immediate detention of the petitioner was necessary. While holding so, we rely on the judgment reported in 2013 ALL MR (Cri) 3870 as also the unreported judgment dated 18-4-2017 in Criminal Writ Petition No. 64/2017. While quashing the order of detention made in the case in the judgment reported in 2013 ALL MR (Cri) 3870, this Court had relied on the judgment in the case of Pradeep Paturkar Vs. S. Ramamurthi and ors. 1993 Supp (2) SCC 61 wherein the Hon'ble Supreme Court had held that unexplained delay, whether short or long, especially when the petitioner has raised a specific plea in respect of delay would vitiate the detention order. In the instant case, since the delay is not explained, much less satisfactorily, the detention order is liable to be set aside on the said ground also. The judgments reported in (1974) 1 SCC 594 and (1988) 3 SCC 153 and relied on by the learned Additional Public Prosecutor cannot be applied to the case in hand as in the said reported judgments, it was sought to be canvassed that in view of the delay, it would be necessary to hold that the detaining authority must not have been satisfied about the necessity of the detention order.
8. Hence, for the reasons aforesaid, the criminal writ petition is .....12/-
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12 jg.cri.wp 324.17.odt allowed. The impugned orders are quashed and set aside. Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
wasnik
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