Vasim Khan @ Raja S/O. Iqbal Khan ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 7612 Bom

                                      1                                      jg.cri.wp 324.17.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                      NAGPUR BENCH, NAGPUR.

                    Criminal Writ Petition No. 324 of 2017

Vasim Khan @ Raja S/o Iqbal Khan 
aged about 30 years, occu. Private, 
R/o Big Tajbagh beside 
Sindhiban Almariwale, Police Station 
Sakkardhara, Nagpur 
City, Tah. & District  Nagpur. (In Jail)                                    .... Petitioner

      //  Versus //

(1) The State of Maharashtra
      Through its Secretary, 
      Home Department, (special) 
      Mantralaya, Mumbai-32. 

(2) State of Maharashtra,
      Through Commissioner of Police, 
      Nagpur, Tah. & Dist. Nagpur.

(3) State of Maharashtra,
      Police Officer, detention Wing, 
      Crime Branch, Nagpur.                                             .... Respondents

Shri A. B. Moon, Advocate for the petitioner
Shri S. S. Doifode, Additional Public Prosecutor for the respondents        
                                                      
                                    CORAM      : SMT. VASANTI  A  NAIK AND
                                                  M. G. GIRATKAR, JJ.

DATE : 27-9-2017.

ORAL JUDGMENT (Per : SMT. VASANTI A NAIK, J.)

Rule. Rule made returnable forthwith. The criminal writ

petition is heard finally at the stage of admission with the consent of the

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learned counsel for the parties.

2. By this criminal writ petition, the petitioner challenges the

order passed by the Commissioner of Police, Nagpur City dated

11-12-2016 detaining the petitioner under the provisions of the

Maharashtra Prevention of Dangerous Activities of Slumlords

Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act,

1981. The petitioner is also aggrieved by the order of the State

Government confirming the order of the detaining authority.

3. The order of the detention, dated 11-12-2016, was passed on

the basis of two crimes that were registered against the petitioner and

two in-camera statements recorded by the Assistant Commissioner of

Police, Sakkardara, namely of witness - A and witness - B. The grounds

of detention as also the translated copies of the other documents were

supplied to the petitioner along with the order of detention, in Hindi

language. The petitioner did not make any representation against the

order of detention, though it is claimed by the petitioner and denied by

the respondents that the wife of the petitioner had made a

representation. The detaining authority had recorded a finding that the

petitioner was a 'dangerous person' as defined under the provisions of

the Act and it was necessary to detain him with a view to curb his

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dangerous activities. The order of detention of the petitioner was passed

in view of the registration of two offences against the petitioner. On

15-7-2016, C.R. No. 169/2016 was registered on the basis of the report

lodged against the petitioner for joining unlawful assembly, for being

armed with deadly weapons, for rioting etc. The other crime was

registered against the petitioner bearing C.R. No. 236/2016 for the

offence of extortion, punishable under Section 386 of the Penal Code.

Apart from the two aforesaid offences on which the subjective

satisfaction of the detaining authority was based, the detaining authority

had also relied on the in-camera statements of two witnesses viz.

witness - A and witness - B, who had mentioned in their statements that

they were not ready to openly come forward to give any statement

against the petitioner - detenu as there was eminent threat to their

life, if they do so. The grounds of detention therefore relate to the

registration of the offences against the petitioner bearing Crime

No. 169/2016 for the offences punishable under Sections 143, 144, 147,

148, 427 and 324 of the Penal Code and Crime No. 236/2016 for the

offence punishable under Section 386 of the Penal Code and the two

in-camera statements of the witnesses. The petitioner has challenged the

order of the detaining authority as also the order of the State

Government confirming the same.

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4. Shri Moon, the learned counsel for the petitioner submitted

that the translated copies of the grounds of detention supplied to the

petitioner were faulty and hence the right of the petitioner to make a

representation against the order of the detaining authority was affected.

It is submitted that an entirely different story than the one that is

mentioned in ground no. 8.1.2, in respect of Crime No. 169/2016 is

stated in the Hindi translation of the grounds supplied to the petitioner.

It is submitted by referring to the order of detention and the hindi

translation thereof that the allegations in the complaint pertaining to

Crime No. 169/2016 are different in the order of detention and the hindi

translation. It is submitted that live link is snapped, inasmuch as the

last in-camera statement was recorded on 12-10-2016 and the order of

detention was passed on 11-12-2016. It is submitted that there is no

explanation whatsoever in respect of the delay in passing the detention

order, in the affidavit in reply filed on behalf of the respondent no. 2. It

is submitted that it is stated in the affidavit in reply that the statements

of the two secret witnesses were recorded on 12-10-2016, the Police

Inspector in Police Station, Sakkardara had forwarded the proposal to the

Commissioner of Police on 19-10-2016 and the proposal was received by

the Crime Branch on 2-11-2016. It is submitted by placing reliance on

the judgment reported in 2013 ALL MR (Cri) 3870 and the unreported

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judgment dated 18-4-2017 in Criminal Writ Petition No. 64/2017 that if

the delay in passing the order of detention is not explained, the order of

detention would be liable to be set aside. The learned counsel relied on

the judgment reported in 1993(3) Mh.L.J. 261 to substantiate his

submission that the right of the detenu under Article 22(5) of the

Constitution of India to make a representation would get affected if a

wrongful translation of the grounds of detention is supplied to the

detenu.

5. Shri Doifode, the learned Additional Public Prosecutor

appearing for the respondents supported the impugned orders. It is

submitted that though there are some minor errors in the translation of

the ground of detention bearing no. 8.1.2, the said error is not material,

more so, when the petitioner was supplied with the translated copy of the

report-complaint lodged by the complainant in Crime No. 169/2016 that

is referred to, in ground no. 8.1.2. It is submitted that the main

allegation in ground no. 8.1.2 is that the petitioner and his associates

had obstructed the complainant - autorickshaw owner and had assaulted

the complainant and injured him. It is submitted that in view of the

minor discrepancy in the translated grounds, it cannot be said that right

of the petitioner to make an effective representation was hampered. It is

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submitted that there is no merit in the submission made on behalf of the

petitioner about the delay. It is submitted that the in-camera statements

were recorded on 12-10-2016, the Police Inspector in Sakkardara Police

Station had sent the matter to the Assistant Commissioner of Police on

19-10-2016, where from it was sent to the Deputy Commissioner of

Police on 20-10-2016 and thereafter to the Additional Commissioner of

Police (South Division). It is stated that after the view/opinion was

expressed by the Additional Police Commissioner on 26-10-2016, the

impugned order of detention was passed on 11-12-2016. It is stated that

it cannot be said in the aforesaid set of facts that the live link was

snapped and there was an inordinate delay in passing the order of

detention. The learned Additional Public Prosecutor relied on the

judgment of the Hon'ble Supreme Court, reported in 1974(1) SCC 594

to substantiate his submission that mere delay in making the order is not

sufficient to hold that the detaining authority must not have been

satisfied about the necessity of the detention order. Reliance is also

placed on the judgment reported in 1988(3) SCC 153 to submit that the

rule as to unexplained delay in taking action is not inflexible and the

order of the detaining authority cannot be quashed unless the Court finds

that the grounds are stale and illusory.

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6. On a perusal of the material on record, we are inclined to

uphold the submission made on behalf of the petitioner that the

impugned orders are liable to be quashed and set aside as the right of the

petitioner under Article 22(5) of the Constitution of India to make a

representation was affected due to faulty translation supplied by the

detaining authority to the petitioner. The translation of the grounds in

hindi language is not the true translation of the grounds of detention.

The errors in the translation are not minor or clerical. The Crime,

bearing No. 169/2016 was considered by the detaining authority as

one of the grounds of detention and the same was referred in ground

nos. 8.1.1 and 8.1.2. In ground no. 8.1.2 of the order of detention, it is

mentioned that the complainant had lodged the report on 15-7-2016 at

4.00 p.m. that while he was travelling in an autorickshaw from Big

Tajbagh, his autorickshaw bumped due to the road breaker and at that

time, the associate of the petitioner, namely Mayur Nevare who was

standing near the road said that there was less air pressure in the tyres of

the autorickshaw. It is alleged in the complaint that on this, the

complainant replied that the "height of the speed breaker should have

been less". It is alleged that on hearing this, the associate of the

petitioner got angry and abused the complainant in filthy language and

said that "he had not made the speed breaker" ( LihM czsdj eSus FkskMh

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cuk;k). While returning, the autorickshaw was stopped by the petitioner

and his associates and by referring to the comment of the complainant

that the speed breaker should not have been that big, the complainant

was assaulted with wooden rod on his ear, nose and back. It would now

be necessary to consider the hindi translation of ground no. 8.1.2 in the

order of detention. In the Hindi translation, it is mentioned that when

the complainant was travelling in a autorickshaw near Bada Tajbagh, the

autorickshaw bumped on the road due to the road breaker. At that time,

Mayur Nevare told the complainant that there was less air pressure in the

tyres of the autorickshaw. On this, the complainant stated that "I have

not made the speed breakers". After that, while the complainant was

returning with the autorickshaw on the same road, the petitioner and

his associates assaulted the complainant as he had stated that "why

the speed breaker did not have a lesser height". A totally incorrect

translation of the incident that was alleged in the complaint in Crime

No. 169/2016 is conveyed to the petitioner by the Hindi translation

supplied to him. "That I had not made the speed breaker" ( czsdj eSus

FkskMh cuk;k) was said by the associate of the petitioner but in the Hindi

translation "czsdj eSus FkskMh cuk;k" is said to have been uttered by the

complainant. Also, there is no mention of the allegation in the complaint

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that the complainant had replied on the utterance of Mayur Nevare about

less air pressure in the tyres of the autorickshaw that "the speed breaker

should have had a lesser height", in the Hindi translation. The said

words are totally absent in the Hindi translation of ground no. 8.1.2. It is

rightly submitted on behalf of the petitioner that since the Hindi

translation was faulty on the material allegations in the complaint in

Crime No. 169/2016, the petitioner was not able to make a effective

representation as his right to make the same was affected.

7. On the submission in respect of the delay in passing the order

of detention and snapping of the link with the grounds of detention,

we find that after recording the in-camera statements of witness - A and

witness - B on 12-10-2016, the Police Inspector in Police Station,

Sakkardara took a view that it was necessary to immediately detain the

petitioner under the provisions of the Maharashtra Prevention of

Dangerous Activities of Slumlords Bootleggers, Drug Offenders,

Dangerous Persons and Video Pirates Act and he had sent the proposal

for detention of the petitioner on 19-10-2016 to the Assistant

Commissioner of Police. The detention order is passed on 11-12-2016.

Though a specific ground in regard to unexplained delay in making the

order of detention is raised in the petition, there is no explanation, much

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less, any satisfactory explanation in respect of the ground of delay and

the snapping of the live link. It is only stated in the affidavit in reply

that the statements of the secret witnesses were recorded on 12-10-2016,

the Police Inspector in Sakkardara Police Station forwarded the proposal

through proper channel to the Commissioner of Police on 19-10-2016,

the proposal was received by the Crime Branch on 2-11-2016 and after

preparing the relevant documents, the detention order was passed on

11-12-2016. We find that the explanation for the delay is far from being

satisfactory. It was sought to be canvassed on behalf of the respondents

by referring to the original case papers pertaining to the proposal of

detention that from the Office of the Deputy Commissioner of Police, the

proposal was dispatched to the Additional Commissioner of Police, South

Division on 20-10-2016 and the Additional Police Commissioner after

expressing his opinion had transmitted the file to the Commissioner of

Police on 26-10-2016 with the views expressed by him. Even if we

accept the submission made on behalf of the learned Additional Public

Prosecutor which is not a part of the affidavit in reply, still we find that

there is some delay in making the order of detention on 11-12-2016. The

order of detention is passed more than one and half months after the file

was reached to the Commissioner of Police - detaining authority. We do

not appreciate the submission made on behalf of the respondents that the

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said time was required for preparing the copies of the documents that

were required to be supplied to the detenu as in view of the proposal,

immediate detention of the petitioner was necessary. While holding so,

we rely on the judgment reported in 2013 ALL MR (Cri) 3870 as also

the unreported judgment dated 18-4-2017 in Criminal Writ Petition No.

64/2017. While quashing the order of detention made in the case in the

judgment reported in 2013 ALL MR (Cri) 3870, this Court had relied on

the judgment in the case of Pradeep Paturkar Vs. S. Ramamurthi and

ors. 1993 Supp (2) SCC 61 wherein the Hon'ble Supreme Court had

held that unexplained delay, whether short or long, especially when the

petitioner has raised a specific plea in respect of delay would vitiate the

detention order. In the instant case, since the delay is not explained,

much less satisfactorily, the detention order is liable to be set aside on

the said ground also. The judgments reported in (1974) 1 SCC 594 and

(1988) 3 SCC 153 and relied on by the learned Additional Public

Prosecutor cannot be applied to the case in hand as in the said reported

judgments, it was sought to be canvassed that in view of the delay, it

would be necessary to hold that the detaining authority must not have

been satisfied about the necessity of the detention order.

8. Hence, for the reasons aforesaid, the criminal writ petition is

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allowed. The impugned orders are quashed and set aside. Rule is made

absolute in the aforesaid terms.

                  JUDGE                                           JUDGE



wasnik




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