Bombay High Court
Smt. Malati Rajaram Bhat vs Shri M.N. Singh, Commissioner Of ... on 8 March, 2001
Equivalent citations: 2001 BomCR Cri, (2001) 2 BOMLR 347
Author: V Sahai
Bench: V Sahat, . P Upasani
JUDGMENT
Vishnu Sahai, J.
1. Through this criminal writ petition preferred under Article 226 of the Constitution of India, the petitioner, who describes herself as the mother of the detenu Sunil @ Babu Rajaram Bhat. has impugned the detention order dated 29.7.2000. passed by the first respondent, Shri M. N. Singh, Commissioner of Police. Brihan Mumbai, detaining the detenu 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, which are also dated 29.7.2000, was served on the detenu on 1.8.2000 and their Irue copies are annexed to this petition.
2.Aperusal of the grounds of detention would show that the impugned detention order is founded on one C.R.. namely, C. R. No. 59/2000 under sections 387 and 34 of the Indian Penal Code r/w sections 3 and 25 of the Arms Act, registered on the basis of a complaint dated 1.2.2000. lodged by one Shri Narendra Shah at Mulund Police Station and the in-camera statements oftwo witnesses, namely, AandB, whichwere recorded on 20.6.2000. Since, in our view, a reference to the prejudichil activities of the detenu contained in the aforesaid C. R. and the In-camera statements is not necessary for the adjudication of the solitary ground, namely 6(xv), on which ground, in our view, this petition deserves to succeed, we are not adverting to them.
3. We have heard learned counsel for the parties. Ground 6(xv), in substance, is that since the Marathi translation of paragraph 4(a-vi) of the grounds of detention is not a true and faithful reproduclum of the original, the detenu's fundamenlal right of making an effective representation, guaranteed by Article 22(5) of the Constitution of India, has been violated.
4. Ground 6(xv) has been replied to In paragraph 5 of the return of the DetainingAuthority dated 26.2.2001. He has emphatically denied therein that there were omissions in the translation furnished to the detenu of paragraph 4(a-vi) of the grounds of detention. He has emphatically averred therein that the detenu has been furnished with complete grounds of detention and there has been no infraction of his fundamental right guaranteed by Article 22(5) of the Constitution of India.
5. We have reflected over the averments contained in ground 6[xv) and those made in paragraphs 5 of the return of the Detaining Authority dated 26.2.2001 and heard learned Counsel for the parties. We find merit in the submission of the petitioner's counsel that the Marathi translation of paragraph 4(a-vi) of the grounds of detention is not a true and faithful translation of the original of paragraph 4(a-vi) of the grounds of detention. which is in English. We find that in the Marathi translation furnished to the detenu it has been stated thus :
"You and your associate Vishwas alias Vishwanath Pujari had gone inside the shop of Mr. Shah. Mr. Shah gave you the plastic bag which was marked containing bundles of currency notes."
This has not been mentioned in paragraph 4(a-vi) of the grounds of detention In English.
6. Mr. Thakur, learned Addl. Public Prosecutor, appearing for the respondents, does not dispute that the said sentences are not contained in paragraph 4(a-vi) of the grounds of detention in English.
7. Article 22(5) of the Constitution of India casts a statutory duty on the Detaining Authority to furnish to the detenu a copy of the detention order and the grounds of detention so as to enable him to make a representation at the earliest opportunity. It is implicit that unless copy of the detention order and the grounds of detention are furnished to the detenu in the language known to him, the detenu would not be able to exercise his right of making a representation at the earliest opportunity. It is also implicit that where a translation of the detention order and the grounds of detention has to be furnished to the detenu, the said translation should be a true and faithful translation of the original. The said requirement is necessitated by the circumstance that then alone the detenu would not be misled or confused and would be able to effectively exercise his fundamental right of making a representation at the earliest opportunity.
8. In the instant case, in our view, not only is the Marathi translation of paragraph 4(a-vi) of the grounds of detention is not a true and faithful one of the original in English but in the former, somethings have been mentioned which could have confused or misled the detenu in making an effective representation. In paragraph 4(a-vi) of the grounds of detention in English it has been mentioned that at about 6.10 p.m. in the evening you and your associate Vishwas Pujari and two others arrived in front of the shop of Shri Shah in an autorickshaw but in the Marathi translation it has not only been mentioned that the detenu along with his associate Vishwanath pujari and two others arrived in front of the shop of Shri Shah in an autorickshaw but also that they went inside the shop of Mr. Shah who gave to the detenu a plastic bag which was marked containing bundles of currency notes. The same is not there in the said paragraph in English. In our view, on account of this infirmity, the possibility of the detenu being confused or misled cannot be ruled out.
9. It should be remembered that preventive detention is a draconian piece of legislation. The law, on the principle that individual liberty must yield to societal good, permits the clamping of a detention order on a person whose prejudicial activities cannot be curbed by the normal law of the land. That being so, Courts have to be very watchful and vigilant that the procedure and requirements contained in Article 22(5) of the Constitution of India and the imperatives which follow from the said Article have been satisfied to the hilt. Where this is not so, they strike down a detention order without any compunction.
10. In the circumstances, we allow this petition; quash and set aside the impugned detention order: direct that the detenu Sunil @ Babu Rajaram Bhat be released forthwith unless wanted in some other case; and make the rule absolute.
