Sattar Abdul Memon vs The State Of Maharashtra And Ors.
2004 Latest Caselaw 488 Bom

JUDGMENT

R.S. Mohite, J.

1. By this Writ Petition, the petitioner seeks to quash and set aside an order of detention dated 23-10-2003 issued Under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

2. The impugned order of detention was issued by the Principal Secretary (Appeals and Security), Home Department of Government of Maharashtra and Detaining Authority on 23-10-2003. The Grounds of Detention which are also dated 23-10-2003 were also served upon the petitioner.

3. In our view, since the petition is likely to succeed on ground No. 6(C), which pertains to non-supply of the translation of certain Marathi documents which were referred to and relied upon by the detaining authority in the grounds of detention, it may not be necessary to refer the grounds of detention.

4. Ground 6(C) taken by the petitioner was in the following terms.

"The Petitioner says and submits that he is a Muslim by religion and his mother tongue is Hindi. The detenu has studied up to SSC in the year 1953 in Urdu medium. The detenu is well versed in Hindi and Urdu language only. He is able to read, write and understand Hindi and Urdu language only. The petitioner says and submits that he has been furnished with the grounds of detention and other documents of the compilation in English and Marathi. The detenu is unable to understand either English or Marathi. Thereby the detenu could not read, understand and make any effective representation at the earliest. Thus his right guaranteed under Article 22(5) of the Constitution is violated. The Petitioner says and submits that at pages 13, 16 and 22 and 27 to 32 which are vital documents and referred to relied on by the detaining authority which are in Marathi language is understood by the detenu thereby he could not make effective representation. The Petitioner further submits that in the "Arrest/Court surrender Form" it is stated under "Language dialect" are Hindi, Urdu and English. There is nothing found in record to show that the detenu understands Marathi. The Petitioner further submits that the detenu has clearly stated at the end of his statement at page 76 of the Compilation that he understands English, Hindi and Urdu only and not Marathi. The Petitioner further says and submits that before the Hon'ble Advisory Board, the detenu in his representation clearly stated that he knows only Hindi and Urdu language and requested for translation of the grounds of detention and Marathi documents of the compilation in Urdu and/ or Hindi. Similarly in the representation dated 4-12-2003 also the detenu made a specific request for furnishing translation of all Marathi documents and grounds of detention. So far the detenu has not received translation of any documents so far. The Petitioner submits that non-furnishing grounds to the detenu in a language known to the detenu amounts to non-communication of grounds of detention, thus violating the first facet of Article 22(5) of the Constitution of India. As a result of non-furnishing grounds of detention in a language known to the detenu he could not make effective representation at the earlier point of time, thus violating both the facets of Article 22 of the Constitution of India. The order of detention is illegal and bad in law, ought to be quashed and set aside."

5. The said ground was dealt with by an affidavit filed by the Detaining Authority and the relevant part which can be found in the paragraph-5 of the said affidavit is in the following terms.

"5. With reference to para No. 6(C) of the petition, I say that the detenu is permanent resident of Mumbai. I further say that the material placed before me also revealed that the detenu had studied upto 10th Std. in Urdu medium. In the statement of the detenu recorded Under Section 108 of the Customs Act, the detenu has stated that he is well versed with English, Hindi and Urdu languages. Hence, the detenu was furnished with the documents in English language which is the language known to the detenu. It is stated that in the Arrest/Court surrender Form, the languages known to the detenu are stated as English, Hindi and Urdu. Hence, the detenu was furnished with English translation of documents in order to enable him to make effective and purposeful representation. It is stated that the detenu has signed as an acknowledgment of receiving the documents in English language and has also mentioned the date on which he received the said documents, therefore the detenu was well conversant with English language. It is denied that the detenu's right under Article 22(5) of the Constitution of India is violated. I deny that the documents at pages 13, 16, 22 to 32 are vital documents which have been relied upon by me issuing the Order of Detention against the detenu. I say that the documents at page 13 in the compilation of documents is a letter dated 5-6-2003 addressed to the Joint Commissioner/Air Port, from the Police Inspector, C. I. D. Mumbai, regarding recovery of goods from the detenu. I say that the said letter is an internal correspondence within the department, hence, I have not referred to and relied upon the said letter for issuing the Order of Detention against the detenu. I say that I have not even made a passing reference to the said letter in the Grounds of Detention. I say that the document at page 16 is a copy of letter regarding the search of the detenu by a Police Inspector. I say that I have not referred to and relied upon the said letter for issuing the Order of Detention against the detenu. I say that I have not even made a passing reference to the said letter in the Grounds of Detention. I say that the document at page. 16 is a copy of letter regarding the search of the detenu by a Police Inspector. I say that I have not referred to and relied upon the said letter for issuing the Order of Detention against the detenu. I say that I have not even made a passing reference to the said letter in the Grounds of Detention. I say that the documents at page 22 which is the continuation of a panchanama dated 30-5-2003, translation of the said documents has been furnished to the detenu at pages 23 and 24 in the compilation of documents. It is stated that the document at page 27 in the compilation of documents is the panchanama dated 31-5-2003. The said pertains to the recovery of diamonds from the detenu. I say that the said panchanama was drawn by the concerned Police Station who had intercepted the detenu. I say that I have not even made a passing reference to the said panchanama dated 31-5-2003 in the Grounds of Detention, hence, I have not relied upon the said panchanama to issue the Order of Detention against the detenu. It is stated that the document at pages 31 and 32 is the statement of the detenu dated 4-6-2003 recorded by the concerned Police Station who intercepted the detenu. I say that I have not referred to and relied upon the said statement of the detenu in issuing the Order of Detention against him. I say that in the Grounds of Detention I have not even made a passing reference to the statement of the detenu dated 4-6-2003. Hence, I say that the material relied upon by me for issuing the Order of Detention against the translation in the language known to the detenu was furnished to the detenu in order to enable him to make effective and purposeful representation. I say that in the representation of the detenu dated 4-12-2003, the detenu had requested to furnish the translation of documents in the language known to him. I say that parawise remarks were called upon from the Sponsoring Authority and on 16-12-2003 the Sponsoring Authority forwarded the parawise remarks which was received in the department on 20-12-2003. I say that after perusing the parawise remarks and the representation of the detenu since the detenu was already furnished with the relied upon documents in the language known to him hence, his request for furnishing the documents in language known to him was rejected. I say that the reject reply was also furnished to the detenu. I repeat and reiterate that the documents relied upon by me for issuing the Order of Detention against the detenu was furnished to the detenu along with the translation in the language known to the detenu in order to enable the detenu to make effective and purposeful representation. Hence, it is denied that the detenu's right under Article 22(5) of the Constitution of India is violated. It is further denied that the Order of Detention is illegal and bad in law and ought to be quashed and set aside. Thus, there is no substance in the say of the petitioner in this para."

6. On consideration of the above, we find that it is admitted position that the petitioner does not know Marathi language. The four documents, the originals of which were in Marathi language and in respect of which translations were not given to the petitioner are the documents at Sr. Nos. 9, 11, 16 and 17 of the Annexure to the grounds of detention dated 23-10-2003 furnished to the petitioner. In paragraph-11 of the grounds of detention, the Detention Authority stated as under :--

"11. While passing the Detention Order under Cofeposa Act, 1974, I have referred to and relied upon the documents mentioned in the enclosed list which are also being served on you."

It is not disputed before us that the translation in respect of these documents was not given to the petitioner in any of the languages known to him.

7. We have perused the grounds of detention. We find that in so far as the documents at Item No. 9 being letter dated 5-6-2003, there is a reference thereto in para-graph-3 of the detention order. Similarly, so far as the document at Sr. No. 17, the same is a statement of the petitioner recorded by the police on 4-6-2003. Reference to the same can be found in paragraph-2 of the grounds of detention dated 23-10-2003.

8. The law relating to non-furnishing of documents or the translations of the same has been crystallised by several judgments. We need to refer only one judgment of the Apex Court in the case of Powanammal v. State of Tamil Nadu, , in which in paragraph-9, the Apex Court has observed as under :--

"However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas non-supply of a copy the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenue's complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document, would equally apply to furnishing translated copy of the document in the language known to and understood by the detenue, should the document be in a different language."

In the present case, once it is admitted that the petitioner did not know Marathi language and it is further admitted that the translations of these documents were not furnished to the petitioner in the language in which he knew and could understand and which documents have been specifically referred to and relied upon in the grounds of detention, consequence must be that the impugned detention order will be required to be quashed and set aside on the ground that the petitioner was deprived of his right to make an effective representation and this right guaranteed under Article 22(5) of the Constitution of India has been violated.

9. As the petition succeeds on this ground alone, we do not feel it necessary to deal with any other ground. Even the Advocate for the petitioner has restricted himself to this ground alone. In the circumstances, petition succeeds. Rule is made absolute in terms of prayer clause (c) subject to the clarification that the detenu will be released forthwith if not required in any other case.

All concerned to act on the copy of this order duly authenticated by the Sheristedar/C. S. of this Court.