Shri Dharma @ Kumar Sonadi Tewar vs Shri M.N. Singh, Commissioner Of ...
2003 Latest Caselaw 354 Bom

JUDGMENT

D.G. Deshpande, J.

1. This petition is filed by the detenue himself. He is detained under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous persons Act, 1981 [herein after referred to as "the MPDA Act"] by detention order dated 17th July 2002. The detention is challenged in this petition on as many as 40 grounds. However, counsel for the petitioner restricted himself to Ground Nos. (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), and (xv).

2. It is necessary to clarify that Ground Nos. (v), (vi) and (vii) are about C.R. No. 2/2002 which was the basis of the detention and, the contention raised is that the manner in which the offence is alleged to have committed by the detenue does not affect the public order the other grounds from (viii) to (xv) [excluding Ground No. (xiv)] are pertaining to only one aspect viz. non application of mind by the detaining authority to the important facts and, supplied wrong data to the detenue which is contrary to the record affecting his right thereby making effective representation.

3. The learned APP for the State contended that even if the facts disclosed in the grounds of detention about the C.R. No. 2/2002 do not, on the face of it, constitute or affect the public order the two in-camera statements of witness "A" and 8 and the incident alleged therein do affect the public order and, therefore, the detention order can be saved under Section 5A of the M.P.D.A. Act.

4. So far as C.R. No. 2/2002 is concerned, it is in respect of the incident that took place on 1st January 2002. Details about this are given in paras 5(a)(ii) and 5(a)(iii) of the grounds of detention. It is an incident that took place in the house of deceased where the detenue and his associates are alleged to have gone for recovering their revolver. When the deceased refused to give any information about the said revolver, they alleged to have gagged the mouth of the deceased and killed him and, then they looted his house and escaped from the house of the deceased. Admittedly, when this incident took place there was nobody inside the house except the deceased. The incident was not witnessed by anybody, nor anyone was present in the house, nor anyone was made aware of the happenings in the house, nor anything is there to show that while committing this offence any threat was given affecting the public order. Incident, therefore, does not affect the public order and, the contention raised by the advocate for the petitioner is required to be accepted to that effect only. However, apart from the C.R., there are two in-camera statements of witnesses "A" and "B". But they are the incidents of extortion having been taken place in public place in the presence of public and, even the counsel for the petitioner could not dispute that these two incidents narrated by witnesses "A" and "B" affect the public order, the detention order cannot be quashed but it can be saved under Section 5A of the M.P.D.A. Act.

5. So far as Ground Nos. (viii) to (xv) [excluding Ground No. (xiv)] are concerned, they are pertinent to one ground i.e. making misleading statements by the detaining authority which are contrary to the record. We are reproducing those grounds as they are from Ground Nos. (viii) to (xv) [excluding Ground to (xiv)] because the entire argument of the learned counsel for the petitioner is based on them.

viii) It is submitted that facts mentioned in para 5(a)(ii) are misleading and has been made with the intention to prejudice the mind of the detaining authority. In said para it is stated that the petitioner and his associates took out the gold ornament box and gold ornaments from the treasury and removed gold ornament and then fled away from the flat. it is submitted that the daughter of the deceased Smt. Hira @ Renu R. Kapadia had stated in her statement before the police that all the articles were found in the room alongwith the cash and the treasury box and police had taken them charge by drawing the panchanama.

ix) it is submitted that the Smt. Hina @ Renu Rajen Kapadia has also stated that she suspected only one gold veni weighing about 10-12 gms was stolen, whereas the police have shown recovery of two gold rings, one lady gold ring.

x) it is submitted that during the seizure panchanama of the petitioner dt. 10.1.2002 one black pant, one full shirt, 2 finger rings without any stone/diamond. This fact is not mentioned in para 5(a)(x). Thus the original facts from the panchanama are not stated in the grounds of detention. Thus it is submitted that the proper facts are not placed before the detaining authority and there is no application of mind by the detaining authority.

xi) It is submitted that during the seizure panchanama from Ashwin Gohil dt. 10.1.2002 one black pant, one full shirt, one finger ring without any stone/diamond, one pair of earring without stone/diamond. This fact is not mentioned in para 5(a)(ix). Thus the original facts from the panchanama are not stated in the grounds of detention. Thus it is submitted that the proper facts are not placed before the detaining Authority and there is no application of mind by the detaining authority.

xii) It is submitted that fact mentioned in para 5(a)(vii) stating that B revolver cartridges of .22 bore cartridge were taken charge on 4.1.2002 is once again misleading and are not true. As per the panchanama dated 4.1.2002 8 revolver cartridges .32 bore were taken charge. Thus it is submitted that the proper facts are not placed before the detaining Authority and there is no application of mind by the detaining authority.

xiii) it is submitted that fact mentioned in para 5(a)(vii) stating that 8 live .22 bore cartridge from the drawer of a wooden cupboard kept in kitchen room is misleading and not true. As per the panchanama dated 4.1.2002 the said cartridges were taken charge from a self of Tijori Kept in the bed room. Thus it is submitted that the proper facts are not laced before the detaining Authority and there is no application of mind by the detaining authority. Misleading facts placed before the Detaining Authority is fatal and the detenue's right to preferring effective representation is impaired.

xv) it is also submitted that the translated version in Tamil there is discrepancy between the original and the translated Tamil Version. The in Camera statement of witness B which was alleged to have been recorded on 4.6.2002 shows incident of 28.5.2002 at 9.30 p.m. when witness B was on his Chinese stall that time Petitioner and other his associate came to his stall.

The translated Tamil version shows the date as 18.5.2002 at 9.30 p.m. of alleged extortion and threatening of witness B and taking of Rs. 525/- from him.

6. As against this it was submitted by the learned APP for the State that this Court is not sitting in appeal nor is scrutinizing the evidence, as is done in the trial Court and, therefore, all these nicety or particulars are not the matters to be considered by this Court. So far as the merits of petition in Ground Nos. (viii) to (xv) [excluding Ground No. (xiv)] are concerned, she made her separate submission. From Ground Nos. (viii) to (xv) [excluding Ground No. (xiv)] we find that Ground Nos. (xiii) and Ground No. (xv) will go to the root of the case and, therefore, we are only considering them for the purpose of deciding this petition.

7. Ground No. (xv) relates to in-camera statement of witness "B". It is not disputed that both the in-camera statements were originally recorded in Marathi and thereafter their Tamil versions were furnished to the detenue. So far as witness "B" is concerned, his original statement in Marathi is at page 43 of this petition and, its Tamil version is at page 46. In his statement witness "B" has stated that in the last week or May i.e. on 28.5.2002, Tuesday, he was on his Chinese stall at 9.30 night. In the Tamil version or his statement the date of this incident is given as 18.5.2002; whereas the detaining authority in the grounds of detention in para 5(b)(ii) with reference to the statement of witness "8" has given this date as 29th May, 2002. It is admittedly, serious misleading of facts at different stages. The marathi version of the witness gives date as 28.5.2002; the Tamil version gives date as 18.5.2002 and, the detaining authority gives date as 29th May 2002. This cannot be called as minor typing mistakes.

8. It clearly shows that when the detaining authority gives date of incident as 29th May 2002, the record relied upon by them do not support that date and, whatever date is disclosed in the statement of witness "B" was totally different from the date mentioned by the detaining authority. The object of the detention order and furnishing document to the detenue is to give him an opportunity to make effective representation. Therefore, when the grounds of detention give one date of the incident, the Marathi version of the statement gives another date and, the Tamil version gives third date, then certainly this is a case where right of the detenue to make effective representation is affected because, he will not be in a position to give proper representation either on the basis of grounds of detention or on the basis of documents supplied to him.

9. Second misleading fact is in Ground No. (xiii) and it is based on para 5(a)(viii) of the grounds of detention wherein it is stated that 8 live .22 bore cartridge were recovered from the drawer of a wooden cupboard kept in kitchen room. Whereas in the panchanama dated 4.1.2002 it is stated that cartridges were taken charge from a self of Tijori Kept in the bed room. The learned APP tried to contend that this mistake does not affect the right of the detenue to make effective representation. But apart from Ground No. (xv) discussed above, this is additional ground where wrong facts have been stated in the grounds of detention. This cannot be said to be a typing mistake because it is a case of changing venue of seized or recovered property.

10. The advocate for the petitioner relied upon the judgment of this Court reported in 2002 ALL MR (Crl) 481 [Renuka Ramesh Salvi v. State of Maharashtra and Ors.] regarding discrepancy in translation of grounds of detention and possibility of detenu's being confused in exercising his fundamental right of making an effective representation at the earliest opportunity. He has also relied upon another judgment of this Court reported in 2002 ALL MR (Cri) 1729 [Abdul Kayyum Shafi Moohamed Shaikh v. M.N. Singh and Ors.] where the detaining authority was misled by the information in arriving at its subjective satisfaction. As against this the learned APP for the State has relied upon unreported judgment of this Court in Criminal Writ Petition No. 62 of 2002 [Shri Surjit @ Babloo Suresh Menpal v. M.N. Singh and Ors]. which was also about the mistake in translation. We have perused all the three judgments and, in the unreported judgment in Criminal Writ Petition No. 62 of 2002 it was held that the mistakes which will have effect of prejudicing the right to make effective representation would be material and would vitiate the right to make effective representation. Therefore, the crucial question is, whether the mistakes can be said to be material vitally affecting to make effective representation and considering these two important misleading statements in the grounds of detention as referred to in Ground Nos. (xiii) and (xv) and also Ground No. (viii) to some extent, the detention order is required to be set aside.

11. So far as Ground No. (viii) is concerned, according to the petitioner, in para 5(a)(ii) of the grounds of detention some misleading statements have been mae, wherein it is stated that the petitioner and his associate took out the gold ornament box and gold ornaments from the treasury and removed gold ornament and then fled away from the flat. In the first statement of Smt. Hina @ Renu R Kapadai, recorded on 5.1.2002, she has stated that when she inspected the safe for the purpose of ascertaining as to what was stolen she found that all small gold ornaments were there in the box, but one gold veni, i.e. some different type of ornament, weighing about 10 to 12 tola was not found. She has stated that if some other ornaments have stolen, she would have disclosed the same subsequently. The advocate for the petitioner contended that no further statement of this witness Smt. Hina Kapadia was recorded regarding other ornaments. But on 12.1.2002 certain ornaments were shown to her after they were recovered at the instance of the accused and detenue under Section 27 of the Evidence Act and, she merely identified them. Then our attention was drawn to second further statement of Smt. Hina Kapadia recorded on 12.3.2002 wherein she has given a list of all the ornaments found on 4.1.2002 in the house itself when the initial panchanama was recorded. Our attention was also drawn to her first statement dated 5.1.2002 wherein she has stated that when the lockers in bank of Baroda, Borivli (E) Branch, were verified, the same gold ornaments weighing about 10 to 12 tola which included ring tops and bangles and rings, and from the lockers of Bank of India, Kalbadevi Branch and Jhaveri Branch where amount of Rs. 1356/- and gold ornaments respectively were found. The learned advocate for the detenue, therefore, contended that from all these statements and the panchanama it is clear that except one veni everything was infact in the house and, therefore, the observation of the detaining authority in para 5(a)(ii) that the petitioner and his associate took out gold ornament box and gold ornaments from the treasury and removed gold ornament and then fled away is without any basis.

12. It is true, as rightly argued by the learned APP, that in detention mattes the Court does not appreciate the evidence or scrutinize other facts and circumstances on record or piece of evidence. However, the question is of the basis and the detaining authority in making certain observations or allegations in the grounds of detention and it from the record it can be shown that they are misleading and, what we find in this regard is that they are misleading, as pointed out in Ground No. (viii), then cumulative effect of making misleading statements in the grounds of detention as per Ground Nos. (viii), (xiii) and (xv) is that the detenu's right of making effective representation is affected. It also shows its non-application of mind to the facts of the case properly. Hence we pass the following order:-

:ORDER:

Petition is allowed.

Rule is made absolute.

Detention order is quashed.

Detenue be set at liberty forthwith if not required in any other case.