Shri Mohd. Yusuf Hasan Qureshi vs Shri M.N. Singh, Commissioner Of ...
2001 Latest Caselaw 807 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes himself as father of the detenu - Mohammed Rauf Yusuf Qurshi has impugned the order dated 25.5.2001 passed by the first respondent Mr. M.N. Singh, Commissioner of Police, Greater Bombay 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 25.5.2001 was served on the detenu on 29.5.2001 and their true copies are being annexed as Annexures A and B respectively to this petition.

2. A perusal of the grounds of detention (Exhibit B) would show that the impugned order is founded on two C.Rs. and two in-camera statements. The C.Rs. referred to in the grounds of detention are C.R. No. 85 of 2001 under Sections 397, 342 and 34 read with Sections 3 and 25 of the Arms Act registered on the basis of a complaint dated 24.3.2001 lodged by Mukesh Mohanlal Shah at V.P. Road Police Station, Bombay and C.R. No. 43 of 2001 under Sections 392, 397 and 34 of the I.P.C. registrated on the basis of a complaint dated 9.2.2001 lodged by Deepak Nawalmal Somani at Nagpada Police Station.

The in-camera statements referred to in the grounds of detention are of two witnesses namely A and B which were recorded on 7.4.2001.

Since in our view, a reference to the prejudicial activities of the detenu contained in the grounds of detention is not necessary for the decision of this Writ Petition, we are not adverting to them.

3. We have heard learned Counsel for the parties.

Although in this Writ Petition, Mr. U.N. Tripathi, learned Counsel for the petitioner has pleaded a large number of grounds numbered from ground Nos. 7(A) to 7(J) in the petition but, he has only pressed before us three grounds namely those pleaded as grounds Nos. 7(I), 7(H) and 7(F) in the petition.

4. Ground No. 7(I) in short is that although in paras 8 and 9 of the grounds of detention, the detenu has been apprised of his right of making a representation to the Detaining Authority and the State Government respectively but, in the Hindi translation of the grounds of detention furnished to the detenu the word representation has been incorrectly translated a s 'Pratinidhitva'.

The grievance of the learned Counsel for the petitioner is that the detenu became confused and could not make a representation.

5. Ground No. 7(I) has been replied to in para 2 of the second return of the Detaining Authority dated 27.9.2001. It has been emphatically denied therein that on account of any infirmity in the Hindi translation of paras 8 and 9 of the grounds of detention, the detenu's fundamental right to make an effective representation under Article 22(5) of the Constitution of India was impaired. The Detaining Authority has mentioned in the said para that in the grounds of detention supplied to the detenu in Hindi, in the word 'representation' has been translated 'Pratinidhitva' which in English means representation.

6. We have perused the averments made in ground No. 7(I) of the petition, those made in para 2 of the return of the Detaining Authority wherein the said ground has been replied to and heard learned Counsel for the parties. We are constrained to observe that we do not find any merit in ground No. 7(I).

Mr. U.N. Tripathi, learned Counsel for the petitioner to drive home his point produced before us the government publication of the Indian Constitution in Hindi. He contended that a perusal of the Hindi translation of Article 22(5) of The Constitution of India shows that the word 'representation' has been translated as 'Abhyavedan'. We have considered Mr. Tripathi's submission and regret do not find any merit in it. It is true that a perusal of the said provision shows that the word representation has been translated as 'Abhyavedan'. But, in our view, the important thing to be borne in mind is not whether the translation in Hindi is meticulously correct or exact but, whether it conveys the appropriate meaning to the detenu. In our judgment, the word 'Pratinidhitva' which also means representation conveyed to the detenu that he had a right to make a representation. In this view of the matter, the submission of Mr. U.N. Tripathi, at the highest, is only hyper technical and in our judgment on account of the word 'representation' being translated as 'Pratinidhitva' and not as 'Abhyavedan' the detenu's right to make a effective representation under Article 22(5) of the Constitution of India was not impaired.

Hence, ground No. 7(I) fails.

7. We now take up ground No. 7(H) pleaded in the petition. The said ground in substance is that in paras 5 and 6 of the Hindi translation of the grounds of detention furnished to the detenu the word 'public order' has been translated as public peace and this infirmity resulted in non-communication of the grounds of detention to the detenu and impaired his right of making an effective representation.

8. Ground No. 7(H) has been replied to in para 17 of the return of the Detaining Authority dated 11.9.2001. It has been averred in the said paragraph that the translation of paras 5 and 6 of the grounds of detention in Hindi is a true and faithful translation of the original in English and therefore, there has been no violation of the detenu's fundamental right guaranteed by Article 22(5) of the Constitution of India.

9. We have perused the averments made in ground No. 7(H), those made in para 17 of the first return of the Detaining Authority wherein the said ground has been replied to and heard learned Counsel for the parties. It is true that the word 'public order' has been translated as public peace in paras 5 and 6 of the grounds of detention in Hindi but, that in our judgment, this would not make a difference because, a Division Bench of this Court in the decision in Kamlakar Patil etc. v. B. Akash, Commissioner of Police, Thane and Ors. 1994 Cr.L.J. 1870 : 1994 (3) Bom. C.R. 395, while dealing with a preventive detention matter under the National Security Act has held that public order is synonymous with public peace. We see no reason as to why the said ratio should not apply to our case.

Consequently, this ground fails.

10. We now come to ground No. 7(F) pleaded in the petition. The said ground is that the Detaining Authority in para 4 of the grounds of detention has stated about the earlier detention orders issued against the detenu under the M.P.D.A. Act but, has not shown his awareness of the fact that the said orders were quashed by this Court. The pleading in the ground is that since the Sponsoring Authority did not place the material documents pertaining to the earlier detention orders, before the Detaining Authority, the impugned order is vitiated on the vice of non-application of mind.

11. Ground No. 7(F) has been replied to in para 15 of the first return of the Detaining Authority dated 11.9.2001. In the said para, the Detaining Authority has averred that the averments contained in para 4 of the grounds of detention are merely by way of introduction or preamble to the grounds of detention and the impugned order is not founded on them but, instead is founded on the grounds contained in para 5 wherein there is a reference to two C.Rs. and two in-camera statements. In the circumstances, it is averred that on account of non-placement of the material pertaining to the said detention orders before the Detaining Authority, there was no non-application of mind on the part of the Detaining Authority and the detention order is not vitiated in law.

12. We have perused the averments made in ground No. 7(F), those made in para 15 of the first return of the Detaining Authority wherein the said ground has been replied to and heard learned Counsel for the parties. We are constrained to observe that we do not find any merit in this ground.

13. Way back in the year 1982 in the case in Dhananjoy Das v. District Magistrate , the Supreme Court has held that there can be a preamble in the grounds of detention. The said decision was followed by a number of Division Benches of this Court in the cases reported in:

(i) Prabhakar Shetty v. Commissioner of Police Greater Bombay 1993 Cr.L.J. 1981.

(ii) Haroon Shaikh v. Commissioner of Police, Thane 1997 Cr.L.J. 2085, and

(iii) Smt. Asha Arun Gawli v. State of Maharashtra and Ors. .

We may also mention that the said decision of the Supreme Court was also followed Shankar Bhosale v. M.N. Singh, Commissioner of Police and Ors. Criminal Writ Petition No. 470 of 2001, by a Division Bench of this Court of which one of us (Vishnu Sahai, J) was a member.

Since in the instant case in para 1 of the grounds of detention, the Detaining Authority has categorically asserted that the grounds of detention are contained in para 5, the averment of the Detaining authority to the effect that the impugned order is founded on two C.Rs. and two in-camera statements referred to in para 5 of the grounds of detention appears to be correct and his averment that the recitals contained in para 4 of the grounds of detention are only by way of a preamble also appears to be correct.

Since the impugned order was not founded on earlier detention orders, referred to in para 4 of the grounds of detention but was founded on the two C.Rs. and two in-camera statements referred to in para 5 of the grounds of detention, in our judgment the failure of the Sponsoring Authority to place before the Detaining Authority the material pertaining to the earlier detention orders, would not vitiate the detention order on the vice of non-application of mind.

14. We would be failing in our fairness if we do not refer to the three decisions cited by Mr. Tripathi, learned Counsel for the petitioner namely Avtar Singh and Ors. etc. v. State of Jammu and Kashmir and Ors. ; Smt. Sashikala w/o Shri Ashok Sahil v. Shri S.V. Bhave, Commissioner of Police and Ors. Criminal Writ Petition No. 1066 of 1990, by a Division Bench of the Court and Shri Waman Bhaskar Patil v. Shri R.D. Tyagi, Police Commissioner and Ors. Criminal Writ Petition No. 421 of 1996 by a Division Bench of this Court.

In our Judgment, the ratio laid down in none of the decisions is applicable to the present case because, in the said decisions, the question that there can be a preamble to the grounds of detention was not before the Court and consequently was not considered by the Court.

For the said reasons, in our view, the said decisions would have no bearing.

15. Before proceeding to the operative part of the judgment, we feel it pertinent to mention that although some other grounds have been pleaded by learned Counsel for the petitioner in the petition but, since he has not pressed them before us, we are not adverting to them.

16. In the result, we dismiss this Writ Petition and discharge the rule.