Age. 27 Years vs The Commissioner Of Police
2013 Latest Caselaw 45 Bom

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nsc.
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                  CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION NO.3230 OF 2013




                                                    
       Abubakar @ Bagla Rais Ansari




                                                   
       Age. 27 years, residing at
       Plot No.27/A/6, Road No.12,
       Bainganwadi, Govandi,                             ...Petitioner.
       Mumbai - 400 043.                                   (Detenu.)




                                            
                v/s.


       1.
                             
            The Commissioner of Police, Mumbai.
                            
       2.   The State of Maharashtra

       3.   The Superintendent,
            Nashik Road Central Prison,
              

            Nashik.                                       ...Respondents.
           



                                         ---
       Mr.U.N.Tripathi, for the petitioner.
       Mr.J.P.Yagnik, APP for the Respondent - State.





                                        ----

                           CORAM: A.S. OKA &
                                  REVATI MOHITE DERE, JJ.

OCTOBER 18, 2013.

JUDGMENT (Per Revati Mohite Dere,J. ) :-

1. This petition, takes exception to the detention order

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bearing no.10/PCB/DP/Zone-VI/2013 dated 18 th June, 2013 issued

under Section 3 (2) of the Maharashtra Prevention of Dangerous

Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous

Persons and Video Pirates Act, 1981 (hereinafter referred to as

'the said Act') by the Commissioner of Police, Brihan Mumbai

against the Petitioner/detenu.

2. The Petition raises several grounds for seeking

quashing and setting aside of the order of detention. However,

in our opinion, it is not necessary to set out all the grounds

referred to in the petition, except to refer to ground 5(b) of the

Writ Petition, which is reproduced hereinunder :-

5 (b) "The Petitioner says and submits that he is a Muslim

by religion and has studied upto Std. VII in Urdu

Medium from Municipal Urdu School, Govandi, Mumbai.

He is well versed with Urdu language only and able to

read, write and understand Urdu script and no other.

The Petitioner says and submits that the detaining

authority has furnished the grounds of detention to the

detenu in English with Hindi translation and all other

documents of the compilation. Thus, the Petitioner

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says and submits that he has not been communicated

the grounds of detention in a language known and

understood by the detenu. This amounts to non-

communication of grounds of detention, thus violating

the first facet of Article 22(5) of the Constitution of

India. The Petitioner further submits that since he is

not able to understand either English or Hindi. It is

therefore, the detenu could not make effective

representation to Competent Authority at the earliest,

thus violating the second facet of Article 22(5) of the

Constitution of India. The Petitioner further submits

that his School Leaving Certificate issued by Municipal

Urdu School, Govandi, Mumbai, clearly spells out that

he knows only Urdu. The Petitioner has also signed his

Vakilpatra in Urdu and his other records of the

compilation also shows that he is well versed with

Urdu language only. Under the circumstances both the

facets of Article 22(5) of the Constitution of India is

violated. The order of detention is illegal and bad in

law, liable to be quashed and set aside. Hereto

annexed and marked EXHIBIT 'D' is a copy of the

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School Leaving Certificate of the detenu".

3. In response to the aforesaid ground 5(b), the detaining

authority has filed its affidavit. It is stated that the

petitioner/detenu has studied upto Std. VII in Urdu Medium from

a Municipal Urdu School, Govandi, Mumbai, however the

averment that he is well versed in Urdu language only; and is

able to read, write and understand only Urdu language is false.

It is stated that though the petitioner/detenu has studied upto

Std. VII in Urdu Medium from a Municipal Urdu School, Govandi,

Mumbai, a letter dated 7th September, 2013 was received from

the Head Master of the said School, in which he has stated that

all students (of Urdu Medium) of Std. VII are taught all

languages i.e .Hindi Marathi and English from standard V. The

Detaining Authority has relied upon the said letter dated 7 th

September, 2013, in support of the same. It is thus stated that

according to the letter, the detenu has studied Hindi language

and as such has working knowledge of Hindi language. It is

further stated that although the petitioner had studied in an

Urdu school, speaks and understands Hindi language. It is

therefore contended, that the petitioner/detenu was

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communicated with the grounds of detention in a language

known to him and as such there was no violation of Article 22(5)

of the Constitution of India.

4. The principal ground which was urged before us, was

that the grounds of detention that were served on the

petitioner/detenu, were in a language i.e. English and its Hindi

translation, which he could not read, resulting in infringment of

his right guaranteed under Article 22(5) of the Constitution of

India. It is pertinent to note that the petitioner/detenu has

specifically averred and has relied on a School Certificate, which

records that he was studying in a Municipal Urdu School,

Govandi, Mumbai which was an Urdu medium school. The same

has also not been denied by the detaining authority. The

detaining authority has produced a certificate from the said

School to show that the said School was also teaching Hindi,

Marathi and English from Std. V. The said certificate is dated 7 th

September, 2013, and has been issued after filing of the said

petition. It merely states that Hindi was also taught from Std V.

5. We may note, that speaking a language is one thing

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and reading and writing a language is another. Merely because

a person is conversant in a language, it cannot be necessarily

inferred that he knows to read and write the said language.

Even otherwise, the script of Urdu language is distinct and

different from the Hindi script i.e Devnagari Script. We may

also note that in the absence of anything to the contrary to

suggest /show that the petitioner was able to read and write in

Hindi, the only conclusion/inference that can be drawn is that

the grounds of detention which were served on the Petitioner

deprived him of his right to make an effective representation

under Article 22(5) of the Constitution of India.

6. According to us, non-communication of the grounds of

the detention to the petitioner in a language which could be

read by him i.e. in Urdu, clearly amounts to no communication

at all, thereby violating the petitioner's fundamental right to

make an effective representation against the same. As the law

relating to preventive detention is visited with serious

consequences, it is imperative that there is strict compliance to

Article 22(5) of the Constitution of India.

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7. The word 'communicate' used in Article 22(5) of the

Constitution of India, denotes a strong word. It means that

sufficient knowledge of the basis facts constituting the 'grounds'

should be imparted effectively and fully to the detenu in writing

in a language which he understands. The whole purpose of

'communicating' the grounds of detention to the detenu is to

enable him to make a purposeful and effective representation.

Of course, where a detenu is uneducated i.e. cannot read any

language, the grounds are to be verbally explained to him in a

language he understands. Thus, in either case, 'communication'

of the grounds of detention is not complete unless it is

communicated in a language which the detenu understands.

This is the constitutional mandate of Article 22(5) of the

Constitution of India.

8. We are satisfied, that in the present case, the

petitioner/detenu was prevented from making an effective

representation, under Article 22(5) of the Constitution of India in

as much as, the documents that were supplied to him were in a

language, which he could not read i.e in English and its Hindi

translation, thereby depriving him of his right to make an

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effective representation. Thus, according to us non-

communication of the grounds of detention in a language

known to the petitioner is fatal. Hence, we pass the following

order:

(i) Rule is made absolute in terms of prayer clause (b)

which reads thus:

"(b) That the order of detention being No.

10/PCB/DP/Zone-VI/2013 dated 18.06.2013 issued under section3(1) of M.P.D.A. Act,1981

by the Commissioner of Police, Mumbai against the detenu, be quashed and set

aside and on quashing the order of detention, the detenu be released forthwith."

(ii) Parties to act upon an authenticated copy of

this order.

    (REVATI MOHITE DERE,J.)                               (A.S. OKA,J.)