Bombay High Court
Gulnawaz @ Shekhu Khan S/O. Ejaj ... vs The State Of Maharashtra Thr. ... on 25 September, 2017
Bench: V.A. Naik
1 wp579.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.579 OF 2017
Gulnawaz @ Shekhu Khan s/o.
Ejaj Khan, Aged about 25 years,
r/o. Utthan Nagar, Plot No.107,
Near Gorewada Ring Road,
Police Station, Gittikhadan,
Nagpur (In Jail). .......... PETITIONER
// VERSUS //
1.The State of Maharashtra,
Through its Secretary,
Home Department Mantralaya,
Mumbai-32.
2.The Commissioner of Police,
Nagpur.
3.The Superintendent,
Central Prison, Akola. .......... RESPONDENTS
::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 :::
2 wp579.17.odt
____________________________________________________________
Mr.R.M.Daga, Advocate for the Petitioner.
Mr.S.S.Doifode, A.P.P. for the Respondents.
____________________________________________________________
CORAM : SMT. VASANTI A NAIK
AND
M.G.GIRATKAR, JJ.
DATE : 25.9.2017.
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J) :
1. Rule. Rule made returnable forthwith. The Writ Petition
is heard finally at the stage of admission with the consent of the
learned Counsel for the parties.
2. By this Criminal Writ Petition, the petitioner has
challenged the order of the Detaining Authority-Commissioner of
Police, Nagpur City, Nagpur, dated 8th May, 2017 detaining the
petitioner under Section 3(2) of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug Offenders,
Dangerous Persons and Video Pirate Act, 1881. The petitioner has
also challenged the order of the State Government dated 15th June,
2017 rejecting the representation of the petitioner and confirming
the order of detention u/s.12 of the Act.
3 wp579.17.odt
3. The petitioner is allegedly engaged in criminal activities
and is prosecuted for the offence punishable under Section 307 of
the Penal Code and the allied offences. The said crime was registered
against the petitioner in the Police Station, Sitabuldi on 14.11.2016.
Another complaint was filed against the petitioner in Ambazari Police
Station and a N.C Report was made in the said complaint bearing
No.227 of 2017. On the basis of the two cases registered against the
petitioner and the two in-camera statements of witnesses, recorded
by the Detaining Authority, the order of detention was passed against
the petitioner by the Commissioner of Police on 8.5.2017, u/s.3(2) of
the Act. The petitioner made a representation against the said order
to the State Government; however the same was rejected by the
impugned order dated 15th June, 2017. The orders of the Detaining
Authority and the State Government are challenged by the petitioner
in the instant petition.
Mr.S.P.Dharmadhikari, the learned Senior Counsel for
the petitioner submitted that the impugned orders are liable to be set
aside as the material available before the Detaining Authority was
not such, that would warrant the detention of the petitioner. It is
submitted that the offences registered against the petitioner as also
4 wp579.17.odt
the in-camera statements of witnesses A and B would not show that
the petitioner is a 'dangerous' person. It is stated that the Hindi
translation of the order of detention and the grounds mentioned
therein are not true copies of the original. It is submitted that certain
matter which did not find place in the grounds in the original
detention order finds place in the Hindi translation that was supplied
to the petitioner. It is submitted that certain grounds that found
place in the impugned order did not find place in the Hindi
translation. It is stated that some particular grounds, referred to in
the order of detention point out that the Hindi translation thereof is
not the correct translation of the grounds in the impugned order. It is
submitted that there was undue delay in passing the impugned order
as the statement of witness B was recorded on 10.4.2017 and the
impugned order of detention was passed on 8.5.2017. It is
submitted that the period between the recording of the in-camera
statement of witness B and passing of the impugned order is more
than 25 days and the said delay would vitiate the order of the
Detaining Authority. The learned Counsel relied on the Judgment
reported in 2008 (2) Mh.L.J. (Cri) 219
, Anil @ Antya s/o. Shriram
Jadhav vs. State of Maharashtra and Others to substantiate his
submission that in a given case the delay would be fatal. It is
5 wp579.17.odt
submitted that if the translation would not be a correct translation of
the grounds, the right of the petitioner to make an effective
representation, under Article 22(5) of the Constitution of India
would be affected. Reliance is also placed on the Judgment reported
in 2011
(5) SCC 244 , Rekha .vs. State of Tamil Nadu, through
Secretary to Government and another to submit that if the ordinary
law of land is sufficient to deal with the situation, the Detaining
Authority cannot take action for detaining the detenue. It is
submitted that para 10 of the grounds in the impugned order of
detention records that the ordinary laws of preventive action have
failed to deter the petitioner from indulging in dangerous criminal
activities, but the said statement does not find place in the Hindi
translation. It is submitted that, in the circumstances of the case, the
impugned order is liable to be quashed and set aside.
Mr.S.S.Doifode, the learned Additional Public Prosecutor
appearing for the respondents submitted that the material on record,
specially the two crimes that were registered against the petitioner
and the two in-camera statements of witnesses recorded by the
Detaining Authority, would show that the acts of the petitioner
would be a threat to the public order. It is submitted that it would
6 wp579.17.odt
not be for a Court to go behind the subjective satisfaction recorded
by the Detaining Authority while considering the correctness or
otherwise of the order of the Detaining Authority. It is submitted that
there is hardly any delay since the date of recording of the in-camera
statement of witness B is 10.4.2017 and the date of the impugned
order is 8.5.2017. It is submitted that there is no delay whatsoever, if
the aforesaid two dates are considered. It is submitted that the
detention order is based on the two crimes registered against the
petitioner and the in-camera statements of witness A and witness B.
It is stated that the petitioner has a criminal background and his
activities would show that he is a dangerous person as defined under
the Act. It is submitted that the petitioner moves along with his
associates in the areas that are mentioned in the impugned order in
the name of Sheru Gang-Maya Gang and it is apparent from the in-
camera statements that the petitioner and his associates were armed
with mauser, swords, rods etc when they pelted stones on the
complainant's hotel and broke down the front glass of the hotel. It is
submitted that there is enough material on record for recording the
subjective satisfaction that the acts of the petitioner are a threat to
the public order. The learned Additional Public Prosecutor relied on
the Judgments reported in 2014
ALL MR (Cri) 53, Santosh
s/o.
7 wp579.17.odt
Bhagwan Patil .vs. The State of Maharashtra and Others and 2012
ALL MR (Cri) 2433, Dharmendra Kamlakar Tangadi .vs.
Commissioner of Police, Thane and Others to submit that minor
errors in the translated copies would not vitiate the order of
detention. The learned Additional Public Prosecutor relied on the
Judgment reported in 2017(3) SCC 133,
Shri Anna Durai @ Dilli
Ganpati Devendra .vs. A.N.Roy, Commissioner of Police and Others
to substantiate his submission that if the detention order is founded
on one composite ground then the detention order could be vitiated
if such ground is found fault with; however, if the detention order is
based on more than one grounds, independent of each other then the
detention order will still survive if one of the grounds is found to be
non-existent or legally unsustainable. Reliance is also placed on the
Judgment reported in 1988 (1) SCC 296,
Smt. K. Aruna Kumari vs.
Government of Andhra Pradesh and Others, for canvassing that it
would not be for the Court examining the validity of the detention
order to consider whether the material available with the Detaining
Authority was sufficient to detain the detenue.
Though several grounds are raised on behalf of the
petitioner for challenging the impugned order of detention, we are
8 wp579.17.odt
inclined to consider the ground in regard to the failure to supply the
correct translation of the grounds of detention. It is not disputed
that the order of detention is based on the two crimes registered
against the petitioner and the in-camera statements of two witnesses
viz. witness A and witness B. It is brought to the notice of this Court
by referring to the order of detention, the grounds mentioned therein
and the Hindi translation of the said grounds that certain facts in
Ground Nos. 9.1, 9.1.1 and 9.2.1 in the Hindi translation are not
present in the impugned order. In Hindi translation of ground 9.1 it
is stated " you always extort money from the people and threaten
and attack them". In ground 9.1.1 of the Hindi translation, it is
mentioned " your work is going on well and you are earning a lot. I
want Rs.10,000/- immediately." On this the witness stated "I do not
have money." on which it is mentioned that "whosoever comes in
between, would be cut to pieces". It is further mentioned in Hindi
translation of ground 9.1.1 that whosoever reports against me to the
police would be killed. Similarly, in Hindi translation of 9.2.1 it is
mentioned "In second week of February, 2017 when I (witness) was
going from Gokulpeth Bazar to Coffee house chowk at about 8 p.m.,
I (witness) was told " I would require protection money (hafta) of
Rs.2,000/-. It is necessary to note that the aforesaid facts mentioned
9 wp579.17.odt
in Hindi translation of ground nos.9.1, 9.1.1 and 9.2.1 are not
present in the impugned order. It cannot be gauged as to why so
many facts are present in the Hindi translation, though they are not
mentioned in the grounds in the impugned order.
Apart from the fact that certain acts and utterances that
were allegedly made by the witnesses whose in-camera statements
were recorded do not find place in the grounds, in the impugned
order of the Detaining Authority, it is noteable that certain acts and
utterances that find place in ground nos. 9.1.1, 9.2.1 and 9.2.3 as
also the findings in para no.10, do not find place in the Hindi
translation of the grounds, in the order of the Detaining Authority.
By comparing the copies of the in-camera statements of witnesses A
and B with the grounds in the impugned order of the Detaining
Authority that refer to the said witnesses and to the Hindi translation
of the said grounds, it appears that the facts involved in the case
have jumbled in the mind of the Detaining Authority. Though
witness A has not mentioned in his in-camera statement that, in the
second week of the previous month the petitioner had called the
witness near the house and assaulted the witness by fist blows and
kicks and threatened the witness that "'k s[ k q HkkbZ d s f[kykQ tk s Hkh
10 wp579.17.odt
ck sy rk g S ok s mldk gky fn; so kj tSl s djrk g S "(Whosoever speaks
against Shekhu bhai he would be given the same treatment, as is
given to Diyewar). Here we would mention for the sake of
convenience that this submission is referrable to the statement made
by witness A that 3-4 years earlier the petitioner had committed the
murder of Hemant Diyewar, the President of Bhartiya Janta Yuva
Morcha, Nagpur by shooting him with fire arms. However, on a
reading of the in-camera statement of witness A, we find that witness
A has not mentioned in his statement that "'ks[kq HkkbZ ds f[kykQ tks Hkh
cksyrk gS oks mldk gky fn;sokj tSls djrk gS ". The impugned order refers to
witness A in para 9.1.1, which refers to the statement made by
witness "'ks[kq HkkbZ ds f[kykQ tks Hkh cksyrk gS oks mldk gky fn;sokj tSls djrk gS ".
Considering certain threats and utterances to be made by the
petitioner, as stated by witness A, though witness A had not stated
so, would clearly show that the Detaining Authority has not applied
its mind to the material on record. Similarly though witness B had
not stated in his in-camera statement that the petitioner and his
associates were moving in luxury cars at night in Ambazari area and
the gang of the petitioners is known by the name of Sheku Gang, we
are afraid such statement is not made by witness B at all. Also, in
11 wp579.17.odt
Ground No.9.2.3 of the order of the Detaining Authority, it is
mentioned that witness B had stated that in the second week of
previous month the petitioner had called the witness near his house
and had stated that "'ks[kq HkkbZ ds f[kykQ tks Hkh cksyrk gS oks mldk gky fn;sokj
tSls djrk gS". It is further mentioned in Ground 9.2.3 by referring to
the statements made by witness B that on the said threat being given
by the petitioner, witness B did not lodge any complaint in the Police
Station against the petitioner out of fear. Though none of the
witnesses i.e. witness A and witness B had stated that the petitioner
had threatened them that "'ks[kq HkkbZ ds f[kykQ tks Hkh cksyrk gS oks mldk gky
fn;sokj tSls djrk gS", it is wrongfully mentioned in ground nos. 9.1.1
and 9.2.3 that the witnesses had made the statement that the
petitioner had threatened them that they would be also murdered
like Diyewar. When the witnesses had not stated so, referring to the
said threats in the statements of witnesses A and B in Ground Nos.
9.1.1 and Ground Nos. 9.2.3 would show that the Detaining
Authority had not correctly perused and appreciated the material on
record. What did not find place in the statements of the witnesses is
referred to in the statements of the witnesses in the grounds of
detention, in the impugned order of the Detaining Authority. It is
12 wp579.17.odt
further necessary to note that though witness 'A' had stated that the
petitioner and his associates always moved in Luxury cars at night in
Ambazari area and the gang was identified in the name of Shekhu
Gang, the Detaining Authority has observed in the Ground Nos. 9.2.2
that the said statement was made by witness B. There is non-
application of mind in appreciating the material before recording the
satisfaction that it was necessary to detain the petitioner as his acts
were detrimental to the public order. It is worthwhile to note that
though in the impugned order of detention, specially paragraph 10
thereof, it is mentioned that the ordinary Laws of preventive action
had failed to deter the petitioner from indulging in dangerous
criminal activities, the said important observation/finding does not
find place in the Hindi translation of the grounds of detention that
were supplied to the petitioner. In our view, the non-application of
mind by the Detaining Authority to the material on record and the
failure to supply the true and correct translation of the grounds in
the order of detention would vitiate the order. It is necessary for the
Detaining Authority to supply true and correct translation of the
grounds of detention to the detenue. In the instant case, the grounds
of detention are wrongly translated. Certain grounds that did not
find place in the order of detention were mentioned in the grounds,
13 wp579.17.odt
in the Hindi translation and certain important grounds on the basis
of which the impugned order of detention was passed were totally
absent in the Hindi translation. The right of the petitioner to make an
effective representation was surely affected in view of the wrongful
translation of the grounds of detention. This Court has held in the
Judgment reported in 1999(3) Mh.L.J. 261, Soud Ahmed Jubber
Khan .vs. O.P.Bali Commissioner of Police and Ors. that when
completely different meaning is conveyed to the detenue by the
wrongful translation of the grounds of detention, the right of the
detenue to make an effective representation against the order of
detention, is affected. Similar view is expressed by this Court in the
unreported Judgment dated 3rd September, 2013 in Criminal Writ
Petition No.52 of 2013. This Court has held in the said unreported
Judgment that when the translation of the grounds of detention is
not the true and correct translation of the grounds, the right of the
detenue to make an effective representation under Article 22(5) of
the Constitution of India would be affected. The Judgments reported
in 2014 ALL MR (Cri) 53 (supra) and 2012 ALL MR (Cri) 2433
(supra) and relied on by the learned Additional Public Prosecutor
cannot be made applicable to the facts of this case. In the aforesaid
Judgments, there were some typographical errors in the translated
14 wp579.17.odt
copies that were supplied to the detenue and this Court had
therefore held in the circumstances involved in the said cases that
the errors in the translation were not material, so as to raise an issue
in that regard. The Judgment reported in 2017 (3) SCC 133 (supra)
and relied by the learned Additional Public Prosecutor would also
not be applicable to the case in hand. It is held in the said unreported
Judgment that where the detention order is based on more than one
ground that are independent of each other, the detention order
would survive even if one of the grounds is non-existent or legally
unsustainable. In the instant case, the detention order is based on the
registration of two matters against the petitioner and the in-camera
statements of two witnesses viz. A and B. In this case, we find that
there is jumbling in the mind of the Detaining Authority about the
material that is referable to the allegations in the crime and the in-
camera statements of the witnesses. What is alleged in the crime that
is registered against the petitioner is considered to have been stated
by witnesses A and B, though we find that the witnesses A and B
have not made the statements that are referred to, as their
statements. Though the witnesses had not stated they did not lodge
the complaint against the petitioner as he had threatened them that
he would kill them like Diyewar if they utter anything against him,
15 wp579.17.odt
the Detaining Authority has wrongfully observed so, in the grounds
of detention. The order of the Detaining Authority suffers from non-
application of mind and the same is liable to be set aside. Also, since
we find that the true and correct translation of the grounds of
detention, on which the detention order is based were not correctly
translated and supplied to the petitioner, his right to make an
effective representation under Article 22(5) of the Constitution of
India was seriously affected.
Hence, for the reasons aforesaid, the Writ Petition is
allowed. The impugned orders are quashed and set aside. Rule is
made absolute in the aforesaid terms.
JUDGE JUDGE
[jaiswal]
16 wp579.17.odt
