Bombay High Court
Shri Dinesh Mahadev Parmar vs Mr. M.N. Singh, Commissioner Of ... on 5 April, 2003
Equivalent citations: 2003 BomCR Cri
Author: D Deshpande
Bench: D Deshpande, P Kakade
JUDGMENT
D.G. Deshpande, J.
1. Heard Mr. Tripathi, the learned counsel
for the petitioner detenue and the learned A.P.P.
for the respondents.
2. The petitioner is detained by the detention
order dated 25.10.2002 under Section 3(1) of the
M.P.D.A. Act 1981 (Amendment 1996). The detention
is challenged on number of grounds, however, Mr.
Tripathi restricted himself to ground (C).
According to him, the detention order was passed on
25th October, 2002. Gujarathi version of the
detention order and the grounds of detention and the
documents were served upon the detenue on 27th
October, 2002 because the detenue was incapable of
understanding English language and in the Gujarathi
version of the grounds of detention it was not
brought to his notice that he has "right" (emphasis
added) to make the representation to the State
Government. He, therefore, contended that the
detenue had to seek legal advise and only thereafter
he could send the representation on 25.11.2002. The
delay caused in sending the representation is on
account of non-apprisal of the right of making
representation in the Gujarathi version of the
grounds of detention. Mr. Tripathi relied upon
three judgments in support of his contention. The
first is of the Supreme Court , between The State of Bombay v.
Atma Ram Shridhar Vaidya. wherein the Supreme Court
in para 13 has held that, thee are two rights to
the detenue, one of serving with the copy of the
grounds of detention and the detention order and the
second is to give him earliest possible opportunity
of making the representation. The Supreme Court
further observed, "If the grounds are not sufficient
to enable the detenue to make a representation, the
detenue can rely on his second right and if he likes
may ask for particulars which will enable him to
make the representation. On an infringement of
either of these two rights, the detained person has
a right to be approach the Court and complain that
there has been an infringement of his fundamental
right and even if the infringement of the second
part of the right under Article 22(5) is established, he
is bound to be released by the Court." This judgment
was followed by this Court in unreported judgment in
Criminal Writ Petition No. 1110 of 1994 decided on
28.4.1995 by Justice V.P. Tipnis & Justice D.K.
Trivedi. In that case also there was no mention in
the grounds of detention that the detenue has a
right to make representation. The detenue after
seeking legal advise made representation and there
was delay of 28 days in that case and, therefore, it
was held in para 13 of the said judgment that the
detenue can justifiably urge that he has been
informed on 22.7.1994 that he has a right to make
representation to the detaining authority and,
therefore, he could not avail of the right at the
earliest point of time. Mr. Tripathi also relied
upon another judgment of the Supreme Court between Kamleshkumar Ishwardas
Patel v. Union of India and Ors., wherein in para 38
the Supreme Court has held that a right to make the
representation necessarily emphasis that the person
detained must be informed of his right to make the
representation to the authority that has made the
order of detention at the time when he served with
the grounds of detention so as to enable him to make
such representation and the failure to do so results
in denial of the right of the person detained to
make the representation.
3. It is an admitted fact that that, in the
Gujarathi version of the grounds of detention the
served upon the detenue, he has not been informed
that he has a right to make representation. What is
informed to him is that he could make representation
if he so desire. Mr Tripathi has produced for
our inspection the Gujarathi version of grounds of
detention. We got it verified from the official
interpreter and the learned A.P.P. also conceded
that the word "right" has not been used in the
Gujarathi translation.
4. The learned A.P.P. however tried to
contend that the judgment of this Court in Criminal
Writ Petition No. 1110 of 1994 will not apply to
the facts and circumstances of the case, because in
that case, in the grounds of detention, the detenue
was not apprised of his right to make the
representation. She contended that in the grounds
of detention in English, the word "right" is used
and, therefore, there is no omission in that regard.
We are unable to accept this contention, because
what is there in the English version is of no use,
particularly when the detenu admittedly did not
understand English and for which purpose the
Gujarathi version of all the documents were served
upon him. In the Gujarathi version of grounds of
detention served upon him, admittedly, is not made
aware of his right to make representation.
5. It is the fact that he made representation,
as rightly urged by Mr. Tripathi, only after
seeking legal advise and it was made on 25th
October, 2002, whereas the detention order was
served on 27th October, 2002. Therefore, as has
been held in the judgment in Criminal Writ Petition
No. 1110 of 1994, the detenue can justifiably urge
that the delay was caused on account of the detenue
not being made aware of his right to make
representation. The delay has therefore deprived
the detenue of his right to make representation at
the earliest possible opportunity. It is an
infringement as has been mentioned in Article 22(5) of
the Constitutional and the detention order, therefore,
must be quashed and set aside. Hence the order:-
ORDER
Writ petition is allowed.
The detention order is quashed and set
aside. The detenue be released forthwith, if not
required in any other matter.
