Mohammad Rafiq S/O Mohammad ... vs State Of Maharashtra And Ors.
2005 Latest Caselaw 1276 Bom

JUDGMENT

R.C. Chavan, J.

1. Brother of detenu Taj Mohammad @ Wani s/o Mohammad Ismail has filed this petition under Article 226 of the Constitution of India for writ of habeas corpus challenging the order of detention passed by the Commissioner of Police, Amravati, and confirmed by the State Government under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981.

2. The detention order, along with the grounds of detention, served upon the detenu on 15-5-2005, are annexed to the writ petition. The petitioner challenges the detention of his brother, amongst others, on the ground that though the detenu does not know Marathi, documents which form part and parcel of the grounds of detention, were served upon the detenu in Marathi. This resulted in denial of opportunity to make effective representation against the order of detention. The detention is further challenged on the ground that the Commissioner of Police had passed the detention order after taking into consideration the material which was not germane for the purpose of issuing order of detention, inasmuch as the Commissioner of Police considered casualties on account of consumption of illicit liquor in Mumbai with which the detenu had no concern. Another ground on which the order has been assailed but which was not urged in the petition is that the detention order does not mention any period of detention.

3. The Detaining Authority contested the petitioner's claim by contending that the detenu is not an uneducated person and has studied up to 4th Standard. He can understand and speak in Marathi and Hindi. The detenu is born and brought up in Maharashtra and hence it was not open for the petitioner to say that the detenu does not understand Marathi. It was contended that the detenu had filed a bail application in Marathi in criminal case against him. Therefore, there is no force in the contention that the detenu could not make effective representation.

4. We would reproduce a paragraph from the judgment of this Court in Mrs. Satwinder Kaur Maan v. District Magistrate and Anr. reported in 2002 ALL MR (Cri) 1123, which debunks the contention of the learned APP, The documents in the form of material particulars furnished to the detenu are in Marathi language whereas the detenu does not know Marathi though the Detaining Authority has tried to justify furnishing of such documents in Marathi language on the basis that since detenu is resident of Maharashtra, he is conversant with Marathi language, this does not satisfy the test that the documents have to be furnished in the language known to the detenu. We say so as there is nothing on the record to show that the detenu has knowledge of Marathi Language. On the other hand, the Detaining Authority itself has furnished to the detenu a Hindi translation of the impugned order and grounds of detention. If the Detaining Authority was having the necessary information that the detenu has sufficient knowledge of Marathi or was conversant with Marathi language, we fail to understand why the translated copies of the order and grounds of detention were furnished to him in Hindi. It is detenu's case that he is a Punjabi and knows Hindi language, but not Marathi, and, therefore, non-furnishing of documents relevant to material particulars and facts in the language known to the detenu, has deprived him of his right to make effective representation against his detention and, therefore, the impugned order of detention is to be held illegal and would stand vitiated.

5. Since the detention of the petitioner's brother is vitiated on this ground alone, it is not necessary to consider the other grounds urged. However, we would briefly refer to those grounds only in order to impress upon the Detaining Authority of the necessity of care and circumspection in curtailing liberty of the citizen.

6. It was contended by the learned APP that the Detaining Authority had passed the detention order after duly considering the material relevant to order petitioner's brother's detention, which order has been duly confirmed by the Government of Maharashtra.

7. The Detaining Authority has observed in para 10 of the grounds of detention communicated to the detenu there were heavy casualties due to consumption of illicit liquor in Mumbai prior to the passing of the order of detention. The Detaining Authority further went on to observe in para 10 that cheap liquor is unhygienic, the persons in distillation of liquor are illiterate and poor consumers are the victims of activities of bootleggers. These observations in the grounds of detention have absolutely no bearing on the case of the detenu. The detenu is not shown to be associated in any manner with illicit distillation of liquor in Mumbai or other parts of the State, which led to the tragedies enumerated in para 10 of the grounds. In our view, it was not necessary for the Detaining Authority to enumerate general conditions prevailing in the State in respect of illicit distillation in order to justify the detention of the petitioner's brother. This unnecessary enumeration led to the detention order being assailed on the ground that the Detaining Authority was swayed by considerations, which were not germane to the detention of the petitioner's brother.

8. It was contended by the learned Additional Public Prosecutor that the order of detention is not bad because it does not mentioned the period of detention, since the period in such cases would be one year. He further submitted that though the Detaining Authority had not mentioned the period in its order, in the order passed by the Government confirming the Detaining Authority's order, the period of one year has been mentioned. Therefore, the order of detention does not suffer from any infirmity.

9. We would only observe that the Authority would do well to acquaint itself with the decision of the Supreme Court in Commissioner of Police and Anr. v. Gurubux Anandram Bhiryani reported in 1988 (Supp) SCC 568, followed by this Court in Samsher Ali v. State of Maharashtra and Anr. reported in 2003(3) Mh.LJ. 241 : 2004 Cri.LJ. 207, where the Apex Court as well as this Court had found that the order of detention, which did not indicate period of detention was bad.

10. In view of these infirmities, the detaining order dated 15-5-2005 passed by the Commissioner of Police, Amravati, and confirmed by the Government of Maharashtra on 1-7-2005, is quashed and set aside. The petitioner's brother -detenu Taj Mohammad @ Wani S/o Mohammad Ismail - be released forthwith if not required in any other case.

11. Rule is made absolute in terms aforementioned.