Nikhil Suresh Rajput vs The District Magistrate Jalgaon ...
2021 Latest Caselaw 6016 Bom

Dusane                                  1/18        wp 505.2021 Judgment.doc

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION

                              WRIT PETITION NO.505 OF 2021



     Mr. Nikhil Suresh Rajput
     Age : 26 years,
     R/o : Datta Nagar, Shriramnagar,
     Vanjola Road, Taluka Bhusawal,
     District Jalgaon.                ....          Petitioner

                     Vs.

     1. The District Magistrate
        Jalgaon

     2. The State of Maharashtra
        (Through Additional Chief Secretary
        to Government of Maharashtra,
        Mantralaya, Home Department,
        Mumbai.

     3. The Superintendent
        Nashik Road Central Prison, Nashik

     4. The Secretary
        Advisory Board for MPDA
        C/o Home Department,
        Mantralaya, Mumbai.
                                               ....   Respondents


     Ms. Jayashree Tripathi i/by Mr. U.N. Tripathi for Petitioner.
     Mr. J.P. Yagnik, APP for Respondent- State.




         ::: Uploaded on - 05/04/2021                   ::: Downloaded on - 05/04/2021 22:01:53 :::
 Dusane                                   2/18    wp 505.2021 Judgment.doc



                              Coram : S.S. SHINDE AND
                                       MANISH PITALE, JJ.

                              RESERVED FOR JUDGMENT : 24.03.2021
                              PRONOUNCED ON         : 05.04.2021

     JUDGMENT (PER MANISH PITALE, J.) :

1. By this Writ Petition, the petitioner has challenged

detention order dated 21.12.2021, passed by the Respondent No. 1-

District Magistrate, Jalgaon, whereby the petitioner has been

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). The said detention order along with grounds of

detention and documents relied upon by the respondent No.1 were

served upon the petitioner. He filed his representation against the

same, which stood rejected and therefore, the petitioner is

constrained to approach this Court. On 08.02.2021, this Court issued

notice to the Respondents. Upon replies being filed by the

Respondents, this petition was finally heard on 24.03.2021.

Dusane 3/18 wp 505.2021 Judgment.doc

2. Ms. Jayshree Tripathi, learned counsel appearing for the

petitioner has raised three grounds to challenge the aforesaid

detention order. The learned counsel invited attention of this Court

to ground 'G' in the Writ Petition and submitted that there was

inordinate delay in consideration and disposal of the representation

filed by the petitioner, thereby violating his valuable right under

Article 22(5) of the Constitution of India. The learned counsel

submitted that the representation was preferred on 05.01.2021 and

rejection of the same was communicated to the petitioner after a

month on 05.02.2021. Attention of this court was invited to the reply

filed on behalf of the respondent-State to highlight the fact that the

representation of the petitioner dated 05.01.2021 was received in the

Special Branch of the State for consideration as late as on

18.01.2021. The further processing of the same also took

considerable amount of time, thereby violating the valuable right of

the petitioner. In this regard the learned counsel appearing for the

Dusane 4/18 wp 505.2021 Judgment.doc

petitioner relied upon judgements of the Hon'ble Supreme Court in

the case of Rama Dhondu Borade Vs. V.K. Saraf (1989) 3 SCC 173,

Harish Pahwa Vs. State of U.P. (1981) 2 SCC 710 and Mahesh Kumar

Vs. U.O.I. (1990) 3 SCC 148.

3. The learned counsel for the petitioner then emphasized

upon ground 'F' in the petition, to contend that since translated

copies of judicial orders and other documents were not provided to

the petitioner, his right to make an effective and purposeful

representation guaranteed under Article 22 of the Constitution of

India was violated. Attention of this Court was invited to Exhibit 'H'

filed along with the Writ Petition, which pertained to judicial orders

and other documents, translations of which were not provided.

According to the learned counsel, this was fatal to the detention

order issued by Respondent No.1. In this regard, learned counsel for

the petitioner relied upon judgements of the Hon'ble Supreme Court

in the case of Hadibandhu Das Vs. District Magistrate AIR 1969 SC

43, Nainmal Shah Vs. U.O.I. AIR 1980 SC 2129 and Ibrahim Ahmad

Batti Vs. State of Gujarat (1982) 3 SCC 440.

Dusane 5/18 wp 505.2021 Judgment.doc

4. The third ground of challenge raised on behalf of the

petitioner was ground 'B' in the Writ Petition pertaining to old and

stale material relied upon by the Respondent No.1, detaining

authority while issuing the detention order. The learned counsel

appearing for the petitioner submitted that the cases on which the

Respondent No.1 placed reliance, all pertained to the years 2017 to

2019, while the detention order was issued on 21.12.2020. On this

basis, it was submitted that there was no live link between the

material relied upon and the issuance of the detention order. It was

submitted that even with regard to the single case registered against

the petitioner in the year 2020, the same was only under the Arms

Act and there was hardly any material in the said case to implicate

the petitioner. Hence, it was submitted that on this ground also the

impugned detention order deserved to be set-aside. The learned

counsel for the petitioner relied upon the judgement of the Hon'ble

Supreme Court in the case of Mustakmiya Jabbarmiya Shaikh Vs.

M.M. Mehta (1995) 3 SCC 237.

 Dusane                                   6/18     wp 505.2021 Judgment.doc




     5                On the other hand, Mr. J.P. Yagnik, learned APP submitted

that none of the three grounds raised on behalf of the petitioner

deserved consideration. As regards alleged delay in consideration

and disposal of the representation, it was submitted that mere delay

in disposal of the representation could not be a ground for setting

aside the detention order. Instead, what was required to be

demonstrated was that there was lack of explanation for such delay.

By referring to the reply of the Respondent State filed in the Writ

Petition, the learned APP submitted that sufficient explanation was

placed on record and therefore, the said ground was without any

substance.

6. As regards the failure to supply translated copies of

judicial orders, the learned APP submitted that the petitioner could

not be permitted to take an unrealistic and abstract stand in such a

matter. He further submitted that there was no inflexible rule of

general application that whenever translation of a document was not

Dusane 7/18 wp 505.2021 Judgment.doc

provided, the detention order was necessarily required to be set-

aside. It was submitted that in the reply of the Respondent 1-

detaining authority, it was properly explained that in all the matters

in which judicial orders were passed, the petitioner was duly

represented by advocates and therefore, he could not insist upon

translation of such judicial orders.

7. In respect of the alleged stale material relied upon by the

detaining authority, the learned APP submitted that the cases

registered against the petitioner in the years 2017 to 2019 were

referred, in order to claim that the petitioner was indeed a

dangerous person. It was further submitted that the case registered

against the petitioner in the year 2020, read with the two in-camera

statements were sufficiently proximate to the issuance of the

detention order dated 21.12.2020 and therefore, there was no

substance in the said contention raised on behalf of the petitioner.

The learned APP relied upon judgments in the cases of A.C. Razia Vs.

Govt. of Kerala and Ors. (2004) 2 SCC 621, Bhaskar A. Shetty Vs.

Dusane 8/18 wp 505.2021 Judgment.doc

M.N. Singh 2001(5) Bom. C.R.718 and Omkar Chandrashekhar

Kapare Vs. The Commissioner of Police (Judgement and Order dated

28.01.2019 passed in Cri. W.P. No. 4456 of 2018).

8. In order to examine whether the detention order issued

by Respondent No. 1 can be sustained or not, each of the three

grounds raised on behalf of the petitioner needs to be considered, on

the basis of the material available on record and the position of law

as laid down by the Hon'ble Supreme Court.

9. In respect of the ground pertaining to delay in disposal of

representation of the petitioner, it would be necessary to refer to the

relevant dates to examine whether there was delay and as to

whether it could be said to be unexplained delay on the part of the

Respondents. The petitioner submitted his representation on

05.01.2021. The reply filed on behalf of the Respondent State shows

that this representation was forwarded by the Respondent No.3,

Superintendent of Nashik Central Prison, on 11.01.2021 with a

Dusane 9/18 wp 505.2021 Judgment.doc

covering letter. It was received in the Special Branch on 18.01.2021.

It is surprising that in this day and age the representation submitted

on 05.01.2021 took six long days for the Respondent No. 3 to

prepare the covering letter for forwarding it to the Special Branch. It

took another seven days for the letter along with the representation

to reach the Special Branch on 18.01.2021.

10. We are unable to appreciate as to why there was such

inordinate delay in the representation reaching the Special Branch,

when fast modes of communication are available in the form of e-

mails and speed post. The material on record also shows that after

the representation was received in the Special Branch on 18.01.2021,

it took 16 days for remarks of the detaining authority to be received

via e-mail. Thereafter, the representation was considered and

rejected by the Additional Chief Secretary (Home) on 05.02.2021,

which was communicated to the petitioner by speed post on

05.02.2021.

Dusane 10/18 wp 505.2021 Judgment.doc

11. In the case of Rama Dhondu Borade Vs. V.K. Saraf

(supra), the Hon'ble Supreme Court observed that although there is

no prescribed time period within which such a representation is to be

dealt with, but the use of the words "as soon as may be" in Article 22

(5) of the Constitution of India clearly shows that the representation

has to be considered expeditiously and disposed of with due

promptitude and diligence, with a sense of urgency. In the said case,

the Hon'ble Supreme Court allowed the appeal of the detenu for the

reason that the representation was disposed of after a time period of

28 days. In the case of Harish Pahwa Vs. State of U.P. (supra) the

Hon'ble Supreme Court emphasized that it is the duty of the State to

consider and dispose of such representations with utmost expedition

and the order on the representation needs to be communicated to

the detenu immediately. In the case of Mahesh Kumar Vs. Union of

India (supra), the Hon'ble Supreme Court found that when there was

unexplained delay in disposal of the representation of a detenu,

because of the fact that comments from the sponsoring authority

Dusane 11/18 wp 505.2021 Judgment.doc

were received late, the detention order deserved to be set-aside.

12 Applying the ratio of the aforesaid judgments of the

Hon'ble Supreme Court relied upon by the petitioner, it becomes

clear that in the present case when the representation was submitted

by the petitioner on 05.01.2021, its rejection on 05.02.2021 was

clearly delayed and hence fatal for the detention order. The learned

APP was not justified in claiming that delay in disposal of the

representation in the present case could not be said to be

unexplained delay. A perusal of the reply affidavit filed on behalf of

the Respondent State would show, as noted above, that the

representation was dispatched after considerable delay by

Respondent No.3 and its further processing with the Respondent

State was also extremely slow, thereby violating the mandate of the

law as recognized by the Hon'ble Supreme Court. Therefore, we are

of the opinion that the impugned detention order deserves to be set-

aside on this ground itself.

     13               Insofar as the ground pertaining to failure on the part of





 Dusane                                    12/18   wp 505.2021 Judgment.doc

the Respondents to supply translated copies of documents relied

upon by the detaining authority is concerned, we have perused the

documents at Exhibit H, translations of which were not supplied to

the petitioner. These are judicial orders, Roznamas and other such

documents. The material on record shows that the petitioner knows

Marathi language and that he is not educated beyond the 10 th

standard. It is the contention of the petitioner that due to failure on

the part of the Respondents to provide translations of the said

documents, his right to make an effective and purposeful

representation stood frustrated, thereby violating his valuable right

under Article 22 of the Constitution of India. In response to the said

ground raised on behalf of the petitioner, the only explanation given

on behalf of the Respondents is that translations of the said

documents were not required to be furnished to the petitioner

because these were judicial orders in cases where the petitioner was

represented by his advocates. We are unable to accept the said

explanation given on behalf of the Respondents.

14. The Hon'ble Supreme Court in the case of Hadibandhu

Dusane 13/18 wp 505.2021 Judgment.doc

Das Vs. District Magistrate (supra) held that failure to supply

documents relied upon by the detaining authority in the script and

language understood by the detenu, amounted to denial of the right

of the detenu of being communicated with the grounds on which the

detention order was passed. On this basis, it was held that the

detention order could not be sustained. In the case of Nainmal Shah

Vs. U.O.I. (supra), the Hon'ble Supreme Court held that non-supply

of translated documents to the detenu was fatal for the detention

order, despite the fact that on some of the documents the detenu had

signed in English. It was held that there could be no presumption

about the detenu having knowledge of English language and that

therefore, translated script of such documents ought to have been

supplied to the detenu. In the case of Ibrahim Ahmad Batti Vs. State

of Gujarat (supra), the Hon'ble Supreme Court reiterated that the

grounds of detention as well as the documents relied upon by the

detaining authority must be supplied to the detenu in the language

known to him.

15 Therefore, it becomes clear that in the present case non-

Dusane 14/18 wp 505.2021 Judgment.doc

supply of translations of the documents relied upon by the detaining

authority was fatal for the detention order. The judgments relied

upon by the learned APP in this regard are clearly distinguishable. In

the case of A.C.Razia Vs. Govt. of Kerala (supra), it was laid down

that first it would have to be determined as to whether the

documents, translations of which were sought by the detenu, were

relied upon by the detaining authority or not. It was then held that

translations of documents not relied upon could not be fatal for the

detention order. There can be no quarrel with the said proposition.

But, in the present case the documents supplied in English were

clearly relied upon by the detaining authority and translations of the

same were admittedly not provided to the petitioner. In the case of

Bhaskar A. Shetty Vs. M.N. Singh (supra), it was found that each and

every document was explained to the detenu in Hindi and this fact

was acknowledged by the detenu by certifying the same in his own

hand. Thus, the facts of the said case are clearly distinguishable

from the present case, wherein admittedly, the documents relied

upon by the detaining authority were supplied only in English

Dusane 15/18 wp 505.2021 Judgment.doc

language and no translations thereof were furnished. Hence, we are

of the opinion that the detention order deserves to be set-aside on

this ground also.

16. Insofar as the last ground of challenge is concerned, it

pertains to material that was allegedly stale and having no live link

with the detention order. A perusal of the detention order and

grounds of detention would show that there is a reference to number

of criminal cases registered against the petitioner in the years 2017

to 2019. There is also a reference to earlier steps taken for detention

of the petitioner and certain externment orders passed against him.

These also pertain to the years 2016 to 2018. Thereafter, there is

reference to only one case pertaining to the year 2020, concerning

offence registered against the petitioner on 15.07.2020 under

sections 3 and 25 of the Arms Act. Apart from this, there is reference

to two in-camera statements of witnesses. It is found that even in the

aforesaid offence registered on 15.07.2020, it is recorded that secret

information was received that some person was in possession of a

Dusane 16/18 wp 505.2021 Judgment.doc

country made pistol and live cartridges and when he was confronted,

he stated that the said weapon and cartridges were purchased from

the petitioner and further that they were kept with some third

person. It is then recorded that when the house of the said third

person was searched, the country made pistol and two live cartridges

were found. It is only this nature of material pertaining to the year

2020 referred to and relied upon in the impugned detention order.

Apart from this, all other offences pertain to the years 2017 to 2019,

while the impugned detention order was issued on 21.12.2020.

17. Considering the said material, there appears to be

substance in the contention raised on behalf of the petitioner that

there was snapping of live link between material relied upon and the

date of issuance of the impugned detention order. A perusal of the

reply of Respondent No.1, detaining authority in this regard shows

that it is merely stated that the material from the year 2017 onwards

was relevant to show continuous criminal activities and background

of the detenu i.e. the petitioner. But, there is lack of sufficient

Dusane 17/18 wp 505.2021 Judgment.doc

explanation as to why the contention regarding absence of live link

raised on behalf of the petitioner ought not to be accepted. The law

will be taking its own course as regards offences registered against

the petitioner in the years 2017 to 2019, but it is not explained as to

why the detention order had to be passed on 21.12.2020. Even the

single offence referred to in the impugned detention order pertaining

to the year 2020 is dated 15.07.2020 and the detention order is

issued as late as on 21.12.2020. Therefore, we are inclined to accept

the said contention raised on behalf of the petitioner. The judgement

of this Court in the case of the Omkar Chandrashekhar Kapare Vs.

Commissioner of Police (supra) cannot be of much assistance to the

detaining authority, because in the said case, on facts this Court came

to the conclusion that the subjective satisfaction arrived at by the

detaining authority was sustainable.

18. In view of the above, the present Writ Petition deserves to

be allowed. Hence the following order.

 Dusane                                    18/18     wp 505.2021 Judgment.doc




                                            ORDER

               A)              The Writ Petition is allowed and the impugned

detention order dated 21.12.2020 is quashed and set aside.

B) Consequently, the Respondents are directed to release the petitioner forthwith, unless required in connection with any other criminal case.

19. Rule made absolute in above terms.

20. The Writ Petition stands disposed of accordingly.

     ( MANISH PITALE, J.)                                        ( S.S. SHINDE, J.)