Bombay High Court
Samad Salim Khan vs The Commissioner Of Police And Ors on 23 November, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3550 OF 2017
Samad Salim Khan
Age 30 years, residing at Azad Mohalla
Shantinagar, Sangam Nagar
Wadala (East) Mumbai. .... Petitioner
- Versus -
1. The Commissioner of Police
Mumbai.
2. The State of Maharashtra
(Through Addl. Chief Secretary to
Government of Maharashtra
Home Department, Mantralaya,
Mumbai)
3. The Superintendent
Nashik Road Central Prison
Nashik.
4. The Secretary,
Advisory Board, Mantralaya,
Mumbai. .... Respondents
Mr. Udaynath N. Tripathi for the Petitioner.
Mrs. M.M. Deshmukh, Addl. Public Prosecutor,
for the Respondent-State.
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CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
DATE : NOVEMBER 23, 2017
ORAL JUDGMENT ( Per Shri S.C. DHARMADHIKARI, J.
) :
1. By this petition under Article 226 of the Constitution
of India, the petitioner (detenu) challenges an order of
preventive detention.
2. The said order, dated 2-5-2017, records that with a
view to preventing the petitioner from acting in any manner
prejudicial to the maintenance of public order, the
Commissioner of Police, Brihan Mumbai is satisfied that it is
necessary to make an order directing him to be detained under
the provisions of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous
persons, Video Pirates, Sand Smugglers and persons engaged in
Black-marketing of Essential Commodities Act, 1981 ("MPDA
Act" for short).
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3. The powers under Section 3, sub-section (2) of the
MPDA Act have been invoked to pass this order.
4. We have to note very few facts for appreciating the
grounds of challenge to this detention order.
5. The detention order together with the grounds came
to be served and that recites that the petitioner is a violent type
of dangerous criminal, having taken to the life of a criminal for
the sake of easy money. With a view to have an upper hand in
the localities of Azad Mohalla, Shantinagar, Near Gousiya
Masjid, Sangam Nagar, Wadala (East), Mumbai and adjoining
areas within the jurisdiction of Wadala T.T. Police Station in
Brihan Mumbai, the petitioner has formed a gang of like-minded
criminals from the above localities. He has unleashed a reign of
terror in the above areas and has thereby become a perpetual
danger to the life and properties of the people residing and
carrying out their daily vocations in these areas.
6. The petitioner and his associates are moving in the
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above areas armed with different kinds of weapons like a
chopper, knife, sword, iron-rod, sickle, cricket stump, etc.,
committing offences and are engaged in criminal activities such
as causing physical hurt to people, assault, attempt to commit
murder, robbery, extortion, trespass and criminal intimidation,
etc.. The petitioner and his associates are alleged to have
indulged in criminal mischief and intimidation in the above
localities. While engaging in such criminal activities, the
petitioner has also terrorised people to ensure that the victims of
the crime are not assisted in any manner. Thus, the petitioner in
order to demonstrate his supremacy in the locality has created a
reign of terror. Such activities are prejudicial to the maintenance
of public order, peace and tranquility in the above localities in
Brihan Mumbai. As far as criminal cases registered against the
petitioner, a list of the same is made in para 4(a) of these
grounds of detention.
7. From para 4(b), the preventive actions taken against
the petitioner are set out.
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8. Then, it is alleged that there was a detention order
under the same enactment duly served and executed upon the
petitioner. The afore-mentioned steps and preventive actions
have not resulted in curbing or putting an end to his criminal
activities. There are certain incidents which are then narrated
from para 5 and which would indicate that the reign of terror
continues.
9. It is stated that the petitioner was arrested in
connection with offences and details of which are then set out.
There was a voluntary statement made and there was a
recovery. Then, there was an order of remand to police custody
after which a magisterial custody was directed.
10. After all these details are set out, it is stated that the
further inquiries revealed that the petitioner has victimised a lot
many people residing in the localities and being a dangerous
person it is difficult for these persons to complain openly against
him or give a statement. Then, there are in-camera statements
referred and details of those are set out in the grounds of
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detention.
11. After the materials are referred, necessary
satisfaction is recorded in paras 6 and 7 of the detention order
and paras 8 to 12 thereof read as under:-
"8. I further inform you that pending approval
of this detention order under section 3(3) by the State
Government; you have a right to make a representation
to the Detaining Authority, i.e. the Commissioner of
Police, Brihan Mumbai against the order of detention. If
you wish to make such a representation, you should
address it to the Commissioner of Police, Brihan
Mumbai, c/o Deputy Commissioner of Police
(Preventive) Crime Branch, 4th Floor The New Office Of
The Commissioner Of Police, Mumbai 400001, through
the Superintendent of the Jail where you are detained.
On approval of the detention order by the State
Government under section 3(3), your right of
representation to the Detaining authority is
automatically extinguished.
9. You are informed that you have a right to
make a representation to the State Government against
the detention order and that you shall be afforded the
earliest opportunity to make such a representation.
Should you wish to make such a representation, you
should address it to the Addl. Chief Secretary (Home),
Home Department (Special), Government of
Maharashtra, Mantralaya, Mumbai - 400032 and
submit it through the Superintendent of the Jail where
you have been detained.
10. You are further informed that the State
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Government shall within three weeks from the date of
your detention, make a reference to and place the
requisite material before the Advisory Board, constituted
under section 9 of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug
Offenders, Dangerous Persons, Video Pirates, Sand
Smugglers and Persons engaged in Black - Marketing of
Essential Commodities Act, 1981. (Maharashtra Act No.
LV of 1981), (Amendment 1996), (Amendment 2009),
(Amendment 2015) to enable the Advisory Board to
make a report whether, in its opinion there is sufficient
cause for your detention. The Advisory Board is required
to make a report aforesaid within seven weeks from the
date of your detention.
11. You are further informed that if you wish to
make any representation to the Advisory Board against
the detention order, you may do so and address it to the
Chairman, Advisory Board, constituted under section 9
of the Maharashtra Prevention of Dangerous Activities
of Slumlords, Bootleggers, Drug Offenders, Dangerous
Persons, Video Pirates Sand Smugglers and Persons
engaged in Black - Marketing of Essential Commodities
Act, 1981. (Maharashtra Act No. LV of 1981),
(Amendment 1996), (Amendment 2009), (Amendment
2015), c/o Desk Officer, Desk-10, Home Department
(Special), Mantralaya, Mumbai - 400032 and submit it
through the Superintendent of the jail where you are
detained.
12. You are also further informed that you shall
be heard in person by the Advisory Board in due course,
if the Board considers it essential to do so, or if you so
desire. If you desire to be heard in person by the
Advisory Board, you may intimate your desire to the
Advisory Board or to the Government of Maharashtra,
through the Superintendent of the jail where you are
detained, so that the Advisory Board may be intimated
about it and necessary arrangements may be made to
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produce you before the Advisory Board on the date fixed
by it for the purpose. You have also right to seek an
assistance of any friend during the course of hearing of
the Advisory Board as well as you have right to examine
the witnesses if you so desire."
12. Mr. Tripathi, appearing on behalf of the petitioner,
would submit that there are three grounds amongst others
highlighted by him which would vitiate the order of detention
and equally the continued detention in pursuance thereof.
13. As far as the continued detention is concerned,
Mr. Tripathi would submit that there should be an intimation to
the petitioner that against the order of detention he can
represent before the Advisory Board and in terms of the
constitutional mandate enshrined in Article 22 of the
Constitution of India, but what both the Detaining Authority and
the Advisory Board failed to intimate the petitioner was that he
possesses and there are rights vested in him inter alia to lead
evidence in rebuttal before the Advisory Board. The argument is
that the Detaining Authority may have generally informed the
petitioner about this right but the Advisory Board failed to give
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any intimation. A mere intimation of the date of hearing before
the Advisory Board would not suffice. The law demands that the
petitioner must be informed specifically that on his being
brought before the Advisory Board, he would be permitted to
lead evidence in rebuttal. Mr. Tripathi would submit that the
law demands that if the intimation about the rights and the
petitioner being apprised of the same would meet the ends of
justice, then, the petitioner not being informed specifically of all
this but only the date of hearing before the Board being
intimated, does not meet the Constitutional guarantee enshrined
in Article 22 thereof. In other words, the petitioner must not
only know the date and time of the hearing but his specific right
so that he can keep the rebuttal evidence ready. The witnesses
to be examined would then be told to remain present on that
date and time. This having not been informed, the continued
detention is vitiated.
14. However, as far as legality and validity of his
detention order itself and his detention in furtherance thereof,
the petitioner would contend that there is a compilation of
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documents which have been referred and relied upon by the
Detaining Authority while recording its subjective satisfaction. In
that is a statement and stated to have been made by the
petitioner when one of the offences were registered. That
statement ought to have been furnished to the petitioner in full.
In other words, if that is a relied upon document, in the sense
the subjective satisfaction is based on the same, then, a complete
copy of that document ought to have been provided to the
petitioner and if necessary, by translating it in the language
known to the petitioner. The supply of an incomplete copy
would not meet the requirement in law. Mr. Tripathi would
submit that if the record is perused it would indicate that the
statement, copy of which is supplied, does not end on the page
of the copy supplied to the petitioner. It goes further and then
ends but that portion has not been included in the copy and the
petitioner cannot be presumed to have the knowledge of the
said three or four sentences which are completely missing from
the copy supplied. This would not enable the petitioner to
exercise his constitutional right of making an effective
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representation. That is not an empty formality as Mr. Tripathi
would contend. If the document is specifically relied upon, then,
it has to be supplied. Its copy should be full and complete.
15. The third ground of challenge is that the Detaining
Authority relies upon another document and that is a charge-
sheet. A copy of that charge-sheet is supplied to the petitioner
minus the endorsement thereon by the learned Magistrate that
he has perused it, applied his mind to it and decided to act in
furtherance thereof. Meaning thereby, he has taken cognizance.
Mr. Tripathi would submit that repeatedly the authorities are
making light of this attack on the detention order by urging that
charge-sheets usually have an endorsement of this nature in the
form of a rubber stamp affixed across its main page/portion. At
best that rubber stamp is missing from the copy of the charge-
sheet supplied to the petitioner but that does not result in any
prejudice. Mr. Tripathi would submit that such an irresponsible
statement made and repeatedly by the Detaining Authority on
affidavits frustrates and defeats the constitutional mandate. This
is preventive detention. This is to prevent somebody from
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indulging in criminal activities in future because he is dangerous
to the society. Therefore, this law or branch of it has to be
construed strictly. Once the doctrine of substantial compliance
does not come into play, then to say that this charge-sheet minus
that endorsement being supplied causes no prejudice, is not
correct. Apart from that Mr. Tripathi would rely on the amended
grounds to submit that English translation of documents having
been supplied, or translation of documents in the regional
language being supplied does not mean that prejudice is not
caused at all. The petitioner, at best, has signed in English but
he is not conversant with that language. He has studied upto
2nd standard and, that too, in an Urdu medium school. He may,
therefore, sign in English but he does not speak and write in
English language. In fact, he may be aware of some sentences
and words spoken colloquially in Hindi but having studied in
Urdu, the petitioner expects translation of the documents relied
upon to be supplied in a language known to him. If that is the
demand of the law, then, the detention order stands vitiated.
16. Mr. Tripathi relies upon the following Judgments in
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support of his contentions.
1) A.K. Roy v. Union of India and others,
reported in 1982 SCC (Cri.) 152,
2) Harbans Lal v. M.L. Wadhawan and others,
reported in (1987) 1 SCC 151,
3) State of Andhra Pradesh and another v.
Balajangam Subbarajamma, reported in
(1989) 1 SCC 193,
4) State of Rajasthan and another v. Shamsher
Singh, reported in 1985 (Supp) SCC 416,
5) Rahul Ambadas Jadhav v. Commissioner of
Police & others, reported in 2015 (4)
Bom.C.R. (Cri.) 57, and
6) Moosa Velliat v. The Asstt. Secretary,
Government of Maharashtra and others,
reported in 1983 Cri. L.J. (Bom.) 1246.
Thus, the petitioner relies on the grounds (k), (l) and (m) of
para 5, appearing on pages 10B and 10C of the paper-book.
17. With the leave of the Court, the additional grounds
are introduced by the petitioner on 1-11-2017. It is stated that
the petitioner has already set out in ground (c) of the petition
his challenge but these further grounds would enable him to
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elaborate that the statement of the petitioner was recorded by
the sponsoring authority. That is to be found at page 127 of the
compilation of documents wherein the detenu has stated that he
has studied upto 2nd standard in an Urdu medium school in
Bombay. It is therefore clear that the detenu has studied little in
Urdu medium and knows Urdu script and well conversant in
Urdu language only. The detenu may have signed in English in
various documents but from which no conclusion can be drawn
that he knows English and Hindi languages. He cannot make an
effective representation in the absence of any familiarity with
English and Hindi languages. Since the grounds are not supplied
to the detenu in Urdu, which is a language known to him, there
is non-communication of the grounds of detention and the
mandate of Article 22(5) of the Constitution of India is violated.
The order of detention is, therefore, illegal and bad in law.
18. We have affidavits filed in reply to this petition.
19. The affidavit of Deputy Secretary, Government of
Maharashtra, Department of Home (Special) starts at page 39 of
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the paper-book and proceeds to support the order of detention
by submitting that the subjective satisfaction is based on definite
materials. It is not vague. There is proper application of mind.
That the detention is also in accordance with law inasmuch as
the petitioner was already informed by the Detaining Authority
of his rights including to make a representation before the
Advisory Board.
20. This affidavit merely sets out the dates and events
and is thus of no use.
21. Then, we have the first affidavit of the Detaining
Authority himself. That is from page 48 of the paper-book.
Insofar as the subjective satisfaction is concerned, a reference is
once again made to the crimes registered, the incidents and the
in-camera statements. We are not concerned with that part for
we have a challenge of the above nature to the detention order
based on which the petitioner continues to be detained. As far as
ground 5(c) is concerned, the affidavit, in para 10 page 60,
would deny the contents of the petition. There is, according to
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the Detaining Authority, compliance with the requirement of law
and which enables the petitioner to make an effective
representation against the order of detention. The grounds have
been duly communicated. The ground that the petitioner is
illiterate and never studied in the school, is denied. It is denied
that the order of detention was not explained to him in the
language known to him.
22. Then there is a specific case that the Arrest Form of
C.R. No.26/2017 shows the signature of the petitioner in English
as 'SAMAD'. The translated order of detention which is in Hindi,
furnished to the petitioner, is signed by him in English as
'SAMAD'. Thus it is wrong and erroneous to urge that the
petitioner never studied or attended any school.
23. Then the Arrest Form is once again relied upon with
its column Nos.9(25) and 9(34) to show that the petitioner
knows Hindi language and the order of detention along with the
grounds of detention was served upon him in Hindi. The original
order of detention and the grounds are thus served in the
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language known to the petitioner. Even the contents of the same
were explained to him in Hindi and he did not make any
grievance. Thus, there is absolutely no prejudice caused. There is
no denial of his right to make a representation..
24. Then, the argument is that there are two in-camera
statements and one C.R. (No.26/2017) on which the detention
order is based. It is contended that the subjective satisfaction is
recorded in accordance with law. The detention order refers to
the serious cases and the criminal activities of the petitioner
which posed a threat to the maintenance of public order, peace
and tranquility.
25. We have then an affidavit of the Secretary, Advisory
Board, at page 69 of the paper-book. Now, that deals with
ground (m), amended and added to the petition. The affidavit,
in para 3, denies that the Advisory Board has not informed or
apprised the detenu of his right, which is a constitutional
safeguard. It is conceded that the authorities are duty bound to
inform the detenu about this right. However, there is a denial of
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the statements made in this ground. It is further denied that the
order of detention is illegal. It is stated that the order of
detention was passed on 2-5-2017. The detenu was detained on
10-5-2017. Thereafter, the case report was sent to the Home
Department and it was received by the Advisory Board on
12-5-2017. The precise statement thereafter is that an intimation
letter was issued to the detenu through the Superintendent,
Thane Central Prison, Thane by the Secretary, Advisory Board
on 31-5-2017. The detenu was informed about the date of
hearing, fixed on 9-6-2017 and if he wishes to make a
representation against his detention, he should make the same
to the Advisory Board.
26. Thus, the Advisory Board in this affidavit and
running page 71 to 72 says as under:-
"It is submitted that the letter in English
language as well as Marathi language was sent by Speed
Post through Registry of Home Department to Thane
Central Prison, Thane as well as the same intimation
letter was e-mailed to Thane Central Prison Thane, on the
very same day i.e. 31.05.2017 in order to avoid postal
delay. The letter addressed to the detenu on 31.05.2017
and on perusal of the print copy of e-mailed letter taken
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by Thane Central Prison and endorsement thereon of
detenu, it is clear that it was served upon detenu on
01.06.2017 and contains of the letter explained to the
detenu. It is submitted that said endorsement was received
by hand delivery to Advisory Board/Spl - 10, Home
Department on 01.06.2017.
It is submitted that in the information letter
sent to the detenu, it was informed that the hearing will
be fixed on 09.06.2017 and if he wishes to make a
representation against his detention, he should make the
same to the Chairman, Advisory Board.
It is submitted that as notice issued by
31.05.2017, the same is served upon the detenu on
01.06.2017 (i.e. after 01 day of issuing the notice). That
means detenu has got sufficient time to make
representation to the Advisory Board and Advisory Board
would consider the same. Hence, there is no contention in
the say of the Petitioner in this para."
From this the Board would make us believe that if not the
official deposing on oath before this Court, at least the
Superintendent of Thane Central Prison has apprised the
petitioner of his constitutional rights. He has gone much beyond
giving an intimation of the date of hearing before the Advisory
Board. He has apprised the detenu of his rights, including to
lead evidence in rebuttal and based on the communication of
the Advisory Board. It is in these circumstances that the
petitioner's right to make an effective representation before the
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Board has not been denied.
27. Then what we have is an additional affidavit of the
Detaining Authority from page 74 of the paper-book. In that the
additional grounds are sought to be dealt with. At page 76, the
affidavit proceeds to deal with an amended ground and
particularly that non-furnishing translation of judicial order
amounts to non-communication of grounds of detention. We are
not concerned with that aspect of the matter.
28. We are concerned with another specific ground
raised in the petition and the elaboration thereof. Insofar as that
is concerned, it is urged that the translation of the rubber stamp
by the learned Magistrate's Court, namely, "Received Charge
sheet on 20/03/17. Cognizance taken U/sec.392, 397, issue
summons to the accused." It is stated that this rubber stamp is
put on the copy of the Final Report Form under Section 173 of
the Cr.P.C. filed in C.R. No.26/2017. It is submitted that copy of
the Final Report Form in Marathi as well as its true translation
in Hindi was furnished to the detenu. Even in the Hindi
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translation, the translation of the rubber stamp of the learned
Magistrate was not given. The petitioner's right has not been
prejudiced as he is having knowledge of English language and
same can be noted from the signature which he has endorsed on
the compilation served on him. Thus, these details are not
material and do not, in any manner, much less prejudicially,
affect his right of making an effective representation. Apart
therefrom, this charge-sheet is duly served at the time of trial
also upon the detenu. Hence he is aware of all the details and
particulars in respect of the same. Then, the amended ground
(m) is sought to be denied by urging that the grounds of
detention and the order of detention were furnished and
explained to the petitioner in the language known to him.
Hence, proper opportunity was given to the petitioner to make
an effective representation against the order of detention.
Hence, there is compliance with law.
29. It is then pointed to us that even the statement
allegedly complained to be not supplied in full was supplied and
the petitioner being aware of English language, he knows how
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to make a representation. Equally, it was contended that the
grounds of detention were served upon him in Hindi language.
Once the petitioner has obtained all the documents, then, there
is no substance in the challenge to the order of detention and it
should be rejected.
30. Learned APP Mrs. Deshmukh has, therefore,
contended before us that there is no substance in the petition.
The grounds of challenge do not merit acceptance. She would
submit that in these affidavits the Detaining Authority as also
the Advisory Board has pointed out as to how no prejudice is
caused to the petitioner. There is compliance with the
requirement of law. Mrs. Deshmukh has relied upon a Division
Bench Judgment of this Court in the case of Anthony alias
Sandy John Nigero v. S. Ramamurthi, Commissioner of
Police for Greater Bombay and others, reported in 1993
Cri. L.J. 3259 and that is on the point that it is not mandatory to
permit assistance of next friend to detenu or adducing evidence
in rebuttal by him before the Advisory Board. Hence advance
intimation or information to the detenu about this right is not
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the requirement of law.
31. With the assistance of Mr. Tripathi and
Mrs. Deshmukh, we have perused the petition, the annexures
thereto and the affidavits placed on record.
32. In our opinion, the petition must succeed on a short
ground. We at once clarify that we will not be required to deal
with the rights of the detenu of an effective representation
before the Advisory Board and the manner in which he should
be apprised about the same. Whether intimation from the
Detaining Authority would suffice or whether the Advisory
Board must specifically apprise him of his right to lead evidence
in rebuttal by keeping witnesses present before the Advisory
Board on the date and time of hearing, is an aspect which we
keep open for decision in an appropriate case.
33. We, therefore, do not deal with the arguments on
this point any further, leave alone the Judgments.
34. In our opinion, Mr. Tripathi is right in relying upon a
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Division Bench Judgment of this Court delivered on 6-1-2014 in
the case of Munna Dilawar Khan v. The Commissioner of
Police, Mumbai & Others {Criminal Writ Petition No.3953 of
2013}. This Division Bench Judgment, authored by the Hon'ble
Mr. Justice A.S. Oka, dealt with somewhat identical situation.
35. In Munna Dilawar Khan (supra), the argument was
that the document at page 312 of the compilation contains a
part of the charge-sheet. However, that is not a document relied
upon, according to the learned APP in that case, nor is it vital.
There is only a reference to that charge-sheet in the grounds of
detention and the same has not been relied upon. It is then the
Division Bench referred to ground (a), para 6 of the petition. In
that, the petitioner had specifically contended that there was a
judicial order dated 11-12-2012 passed by the learned
Metropolitan Magistrate, Kurla, at page 312. The document on
page 312 is a stamp of receipt, affixed by the Judicial Clerk of
the learned Metropolitan Magistrate's Court regarding
acceptance of charge-sheet. The Division Bench in dealing with
the argument that it is merely a rubber stamp and cannot be
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considered a vital document or a vital part of a document, copy
of which was supplied, held thus:-
"10) We have perused page 312, which is a part of
the charge-sheet dated 11.12.2012. There is no doubt a
rubber stamp affixed thereon. Some details have been
filled in by hand. On plain reading thereof, we find that it
is an order of the learned Magistrate passed on
11.12.2012 after perusal of the charge sheet. By the said
order, a non bailable warrant was ordered to be issued
against the Petitioner and his co-associate. Page 312
which contains the said order of the learned Magistrate
forms a part of the document relied upon and served to
the Petitioner. Here, we must note that the Detaining
Authority has not correctly read page 312 as is evident
from paragraph 7 of the reply in which it is tried to be
contended that the document on page 312 of the
compilation of documents bears only a stamp affixed by
the Judicial Clerk of the Court of the learned Metropolitan
Magistrate recording mere acceptance of the charge-sheet.
The said statement made in the reply is factually incorrect.
It is not at all a stamp recording acceptance of the charge-
sheet. It is a judicial order passed by the learned
Magistrate on perusal of the charge sheet. There is also a
rubber stamp affixed by the Judicial Clerk on the said
page, which certifies that the document is a true copy. On
perusal of page 312 of the compilation of documents
served to the Petitioner, we agree with the submissions of
the learned counsel appearing for the Petitioner that order
of the learned Magistrate is not at all legible. We found it
impossible to read the entire order.
11) As regards the document on page 871, we
find that number of words in the said document are not
legible. Learned A.P.P. has produced the file of documents
placed before the Detaining Authority. We find that the
words which are not legible in the copy supplied to the
Petitioner are very much legible in the copy which was
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placed before the Detaining Authority.
12) As regards the order on page 312, admittedly
a translation thereof has not been furnished to the
Petitioner. The said order is in English language. Learned
A.P.P. however pointed out that as far as the document at
page 871 is concerned, translation in Hindi is a part of
the compilation."
36. In the present case, the petitioner has in the grounds
of challenge specifically urged that there is a document at page
243 of the compilation purported to be a Final Report Form in
C.R. No.26/2017. That was a document which was placed
before the Detaining Authority, considered and relied upon by
him for arriving at his subjective satisfaction while passing the
impugned order of detention. The petitioner says and submits
that there is a judicial order passed by the learned Magistrate in
English language on the said document whose translation is not
furnished in a language known to the detenu, thereby the
detenu is deprived of making an effective representation. The
law is well-settled that judicial orders relied upon by the
Detaining Authority are most relevant and vital documents and
non-furnishing the translation thereof amounts to
non-communication of ground of detention and both facets of
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Article 22(5) of the Constitution of India are violated.
37. In dealing with ground 5(k) and introduced by an
amendment, what the Detaining Authority in the additional
affidavit does is to inform this Court that, firstly, the Arrest Form
in C.R. No.26/2017, columns 9(25) and 9(34) show that the
petitioner knows and speaks Hindi language. At the same time,
we are made to believe that because he has signed in the English
language and explained, as above, he is conversant with English
also. It is then stated that translation of the rubber stamp of the
Magistrate's Court, which is put on the copy of the Final Report
Form, is not supplied. It is stated that copy of the Final Report
Form in Marathi as well as its true translation in Hindi was
furnished to the detenu. Thus, the original is in Marathi. The
translation is in Hindi. However, the translation of the rubber
stamp of the learned Magistrate was not given and that is how
the petitioner's right has not been prejudiced as he is having the
knowledge of English language and the same can be noted from
the signature which he has endorsed on the compilation duly
served on him.
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38. We are of the opinion that terming a judicial order
and made on the Final Report From as only a rubber stamp
would expressly run counter to the arguments canvassed before
the Division Bench of this Court. It seems that the Detaining
Authorities do not deem it fit and proper to supply such
endorsements made on charge-sheets. It is apparent that this
endorsement is made after the Metropolitan Magistrate has not
merely endorsed receipt of the charge-sheet but has applied his
mind to the contents thereof to take cognizance of the offences
alleged and he has particularly referred to Sections 392 and 387
of the Indian Penal Code (IPC). He, therefore, deemed it fit and
proper to issue summons to the accused to answer the charges
under these two sections. It is apparent from the whole
document that the endorsement is made after the charge-sheet
alleges that not only the offences committed are punishable
under these two provisions but offences punishable under
Sections 323, 504 and 506 (2) r/w Section 34 of the IPC,
Sections 37(1)(a) and 135 of the Maharashtra Police Act, 1951
are also committed. When such a charge-sheet is placed before
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the Magistrate, on a perusal thereof, he says that he would take
cognizance of the offences punishable under Sections 392 and
387 of the IPC and therefore directs summons to be issued to the
accused, summoning them to answer the charge. This is indeed
a vital document and cannot be termed as a rubber stamp. It is
thus a judicial order. It is made after due and proper application
of mind to the contents of the charge-sheet. When there is an
admission that it is not supplied, in the sense its translation is
not supplied to the detenu in the language he speaks or is
familiar with, then, to urge that his right of effective
representation is not denied nor is it prejudiced, makes mockery
of the whole constitutional safeguards. We cannot allow the
constitutional safeguards to be brushed aside in this manner. We
are dealing with a case of preventive detention. In these
circumstances, the reply affidavit with the above stand does not
meet the requirement set out in law. That runs contrary to the
Division Bench Judgment of this Court. It is stated that even
though in the English translation the translation of the rubber
stamp was not given, the petitioner's right has not been
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prejudiced. The argument that he can sign in English language
denotes that he is conversant with it, cannot be accepted. That
means he can speak fluently and equally write in English
language. We do not think that in the facts and circumstances of
this case that can be the inference drawn from these statements
in the affidavit, for barring the signature below the compilation
of documents nothing else is referred and enough to draw such
a conclusion. To then say that because there are two forms and
which contain certain columns, in those columns as well the
petitioner has signed in a language other than Urdu makes him
familiar with that language, English or Hindi, would not suffice.
For meeting this ground, we do not think that the Arrest Form,
the contents of columns 9(25) and 9(34), in Hindi, and the
supply of the grounds of detention in Hindi would be enough to
reject the argument of Mr. Tripathi. It is expressly admitted that
while serving the copy of the charge-sheet/Final Report Form,
which is in Marathi, the translation of the endorsement thereon
was not made in English. That is styled as a rubber stamp but
the translation thereof even in Hindi has admittedly not been
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supplied.
39. It is not the case of the respondents, that this is not a
relied upon document. Thus, it is conceded that this was a vital
document and relied upon by the Detaining Authority in
recording its subjective satisfaction. All the more, therefore, we
are of the opinion that there is much substance in the challenge
to the detention order on this ground. We have also , in order to
satisfy ourselves, carefully perused the detention order and the
subjective satisfaction therein culled out from the grounds of the
same. In para 5(a)(iii), running page 21, internal page 8 of the
detention order, there is a specific reference to this C.R.. There is
also a reference to the statements therein. There is a reference to
the investigations and particularly the statement of the detenu
recorded in connection therewith. All this would indicate that
this document is a vital one and extensively relied upon so as to
record the subjective satisfaction.
40. Once the above position is conceded, then, we do
not think that the respondents can get away from a binding
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decision of this Court and the law laid down therein. On this
ground, the petition deserves to succeed.
41. We have also noted that the petitioner made a
grievance in regard to a document which is at page 127 of the
compilation. That is a statement of the petitioner recorded on
19-1-2017. That is in Marathi. However, that statement, copy of
which was supplied to the petitioner, ends abruptly, and after
page 127 of the compilation of the documents supplied,
straightaway page 129 appears. One crucial page (page No.128)
is thus missing. The petitioner in this connection has specifically
urged in the grounds of challenge raised in this petition that the
Detaining Authority has supplied the compilation of documents
referred and relied upon. The document at page 127 of the
compilation which we have referred above and of which copy is
supplied to the detenu, is incomplete. However, at page 143 the
translation of the same document is found. The petitioner says
and submits that the translation at page 143, apart from not
being a true and faithful of the original, the Marathi original
statement itself is not completely supplied. Even the copy
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thereof supplied is incomplete. It is in these circumstances, the
petitioner could not have speculated or guessed about the
contents of this original Marathi complete document from the
incomplete translation supplied to him in Hindi.
42. In relation to this ground, what we find from the
affidavit of the Detaining Authority is a stand that the petitioner
has not been prejudiced at all. He has not been prejudiced
simply because the petitioner was duly explained the contents of
the order of detention, recorded in English, in Hindi. The
petitioner was supplied compilation of the documents based on
which the subjective satisfaction is recorded. As far as ground
5(l) is concerned, it was denied that the translation in Hindi is
not a true and faithful translation of the original document.
Then, it is denied that the statement of the detenu in English is
incomplete. It is denied that furnishing wrong translation of a
vital document, which is relied upon by the Detaining Authority,
does not deprive the detenu of his right of making an effective
representation. We do not think that the ground of challenge
and its contents, as pleaded by the petitioner, are understood by
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the deponent of this affidavit or the draftsman. The ground 5(l),
as amended, was specific. We have referred to its contents in
detail. Once the statement in the compilation of documents at
page 127 is recorded in Marathi, that means the original is in
Marathi. That itself was incomplete. A complete translation
thereof in Hindi does not mean that the original, as furnished, is
complete or the contents of the original match with the
translation in Hindi, supplied at page 143 of the paper-book.
Thus, we find that there is complete non-application of mind to
the grounds of challenge raised in the petition. The petitioner is
not prejudiced is the assertion but that is not substantiated at
all. When the ground of challenge itself is not understood by the
Detaining Authority or the respondents, then, they would not be
in a position to meet it. This is a glaring example as to how
while drafting affidavit in reply and answering the challenge to a
detention order, the undue haste on the part of the authorities
results in this Court concluding that the petition of such detenu
deserves to be accepted and the challenge must succeed. Once
we have not been shown any material contrary to this ground of
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challenge and it is substantiated if one peruses page 127 of the
compilation of documents, then, we find that even on this
ground the detention order deserves to be quashed. The
petitioner is denied his right of making an effective
representation and is seriously prejudiced by the above act of
the Detaining Authority.
43. As a result of the above discussion, Rule is made
absolute in terms of prayer clause (b). The order of detention,
dated 2-5-2017, is quashed and set aside. The detenu be
released forthwith, if not required in any other case.
(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)
