Bombay High Court
Amir Faruk Shaikh vs District Magistrate Satara on 28 January, 2021
Bench: S.S. Shinde, Manish Pitale
1/12 Judgment WPST-4585-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 4585 OF 2020
1. Amir Faruk Shaikh }
Age 29 years, r/o. Shivaji Chowk, }
Malkapur, Tal : Karad }
District : Satara } .. Petitioner
VERSUS
1. District Magistrate }
Satara }
}
2. The State of Maharashtra }
(Through Addl. Chief Secretary to }
Government of Maharashtra, }
Mantralaya, Home Department, }
Mantralaya, Mumbai) }
}
3. The Superintendent }
Satara District Prison }
Satara. } .. Respondents
Mr.U.N.Tripathi a/w Ms.Jayshree Tripathi for the
Petitioner.
Mrs.M.H.Mhatre, APP for the Respondent/State.
CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 14TH JANUARY, 2021
PRONOUNCED ON : 28TH JANUARY, 2021
JUDGMENT (PER MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel appearing for the parties, heard finally.
M.M.Salgaonkar
2/12 Judgment WPST-4585-20.doc
2. By this Writ Petition, the petitioner has challenged order of
detention dated 24.08.2020 passed by Respondent No. 1 under
Section 3(1) 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 (hereinafter referred
to as "the Act of 1981").
3. On the date on which the said detention order was passed
against the petitioner, he was already in custody in connection with
a First Information Report (FIR) dated 12.07.2020, registered in
Karad City Police Station bearing C.R. No. 359 of 2020, whereby
offences were registered against the petitioner and other accused
persons under sections 307, 504, 506, 120 (B) read with Section 34
of the Indian Penal Code (hereinafter referred to as "the IPC").
4. Although the petitioner has raised various grounds of
challenge while assailing the said detention order, three grounds of
challenge were pressed into service before this court. These are
ground Nos. (c), (d) and (e) in the Writ Petition. According to the
petitioner, some of the documents served upon him along with the
grounds of detention were in English language and translated copies
of the same were not provided to him. It is pleaded on behalf of the
petitioner that as a consequence of the same, he was deprived of
making an effective and purposeful representation before the State
Government and that his right to make a representation was
rendered illusory. It was then contended that some notings in a
document served upon him were illegible, again prejudicially
affecting his right to make an effective representation. The petitioner
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also contended that he was already in custody when the order of
detention was issued, which demonstrated that there was no
necessity to issue such an order. It was further submitted that the
respondent No.1 had failed to properly record reasons as to why
there was imminent possibility of release of the petitioner from
custody, thereby demonstrating that the impugned detention order
was unsustainable.
5. Mr.Tripathy, learned counsel appearing for the petitioner,
submitted that settled law in respect of all the three aforesaid
grounds of challenge demonstrated that the impugned detention
order was liable to be set aside. By referring to various judgments of
the Hon'ble Supreme Court and this court, it was contended that the
detaining authority was obliged to ensure that the order of
detention, grounds of detention and all documents relied upon by
the detaining authority were served upon the detenu in the language
understood by him and that all such documents were readable. It
was emphasised that the whole purpose of the said exercise was to
ensure that the right available to the detenu under Article 22 (5) of
the Constitution of India, could be exercised by him in an effective
and purposeful manner. It was submitted that in the present case,
the said right of the petitioner was rendered illusory, in the light of
the fact that illegible and non-translated documents were served
upon him along with the detention order, thereby rendering the
impugned detention order unsustainable and liable to be set aside. It
was further submitted that when the petitioner was already in
custody when the detention order was issued, it was necessary for
respondent No.1 to have recorded this fact and then elaborated as to
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why there was imminent possibility of release of the petitioner.
According to the learned counsel for the petitioner, since the
respondent No. 1 failed to record proper reasons for the same, the
detention order was liable to be set aside.
6. On the other hand, Ms.Mhatre, learned APP appearing for the
respondents, submitted that the reply to the aforesaid specific
grounds of challenge pressed into service on behalf of the petitioner
could be found in paragraphs 10, 11 and 12 in the affidavit filed by
respondent No. 1. It was submitted that respondent No. 1 was aware
about the fact that the petitioner was already in custody. By relying
upon the order of detention, the learned APP submitted that the
respondent No.1 had specifically recorded the rejection of bail
application of the petitioner in connection with the aforementioned
FIR and the fact that he was already in custody. Respondent No.1
had then recorded that there was imminent possibility of release of
the petitioner, which would be prejudicial to peace and tranquility
and public order. The learned APP submitted that the respondent
No.1 followed the law laid down by various judgments in this
context, while issuing the detention order and that no interference
was warranted in the same.
7. Heard learned counsel for the rival parties and perused the
material on record. As regards the ground raised on behalf of the
petitioner that he was prevented from making an effective and
purposeful representation due to the fact that translated copies of
certain documents were not provided to him, it would be
appropriate to examine the nature of the said documents. A perusal
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of the said documents would show that they were short orders
granting bail to the petitioner and other persons in bailable offences.
It is an admitted position on record that respondent No.1 had
provided the grounds of detention and all other documents by
translating them for the reason that the petitioner is not aware about
the English language. The crucial question that arises in this context
is, as to whether it can be said that failure of respondent No.1 to
furnish translated copies of the aforesaid short orders granting bail
to the petitioner for bailable offences could be said to be fatal to the
detention order.
8. In this regard, it would be necessary to refer to the judgments
relied upon by the learned counsel appearing for the petitioner. In
the case of Lallubhai Jogibhai Patel Vs. Union of India 1, the Hon'ble
Supreme Court held in favour of the detenu specifically on the
ground that he was not knowing English language and yet the
grounds of detention served upon the detenu were drawn up in
English. In the facts of that case, the Hon'ble Supreme Court found
that the detenu was deprived of the valuable right guaranteed under
Article 22 (5) of the Constitution of India to make an effective
representation. It was on this basis that the order of detention was
set aside. But, in the case of Nisar Jainuddin Mujawar Vs. The
Commissioner of Police (Judgment and Order dated 31.03.2011
passed by Division Bench of this court in Criminal Writ Petition No.
262 of 2011), this court took note of the position of law concerning
a document, translation of which was not provided to the detenu,
being a vital and material document. In other words, whether such
a document was merely referred to by the detaining authority or
1 (1981) 2 SCC 427
M.M.Salgaonkar
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that it formed part of the material on which the detaining authority
placed reliance for arriving at its satisfaction regarding issuance of
the detention order. After appreciating the said position of law, in
the facts of that case, the Division Bench of this court concluded that
since the detaining authority had failed to supply translated copies
of vital documents on which reliance was placed while issuing the
detention order, the Writ Petition deserved to be allowed.
9. Applying the said position of law to the present case, it needs
to be examined whether the petitioner is justified in claiming that
failure on the part of respondent No. 1 in supplying translated copies
of the said short orders granting bail in bailable offences to the
petitioner, deprived him from making an effective and purposeful
representation, thereby rendering the detention order unsustainable.
In response to the said specific ground raised on behalf of the
petitioner, respondent No.1 has stated in paragraph 11 of the reply
affidavit that the detention order was issued in Marathi language
and since the petitioner was insisting on Marathi translation of the
documents, such translated documents were supplied to the
petitioner, which formed the basis of issuance of the detention order.
It was submitted that the detaining authority i.e. respondent No. 1
did not rely upon certain documents while arriving at the subjective
satisfaction for issuance of the detention order.
10. A perusal of the material on record, particularly the detention
order, shows that the short orders granting bail to the petitioner in
bailable offences could not be said to be documents that formed the
basis for issuance of the detention order. Such documents were not
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even relied upon by respondent No. 1 while issuing the detention
order and at best they could be set to be relatable to the past history
of the petitioner wherein he stands accused of certain offences along
with other persons. The basis of issuance of the detention order is
the offence registered on 12.07.2020 and the two in-camera
statements of the witnesses. There is no dispute about the fact that
such documents as were relied upon by respondent No. 1 were
translated and served upon the petitioner and there is also nothing
on record to show that the petitioner ever demanded translations of
the said short bail orders granting him bail in bailable offences,
before making the representation. Thus, it becomes clear that the
detention order cannot be said to be vitiated only on the ground that
translated copies of the said short bail orders were not provided to
the petitioner. Therefore, in the facts of the present case, the
judgments relied upon by the learned counsel for the petitioner in
support of the said ground cannot be of any assistance to the
petitioner.
11. Similarly, in respect of the ground raised on behalf of the
petitioner pertaining to some portions of documents served upon the
petitioner being illegible and hence prejudicially affecting his right
to make an effective representation, it will have to be examined as to
whether such illegible portions of the documents could be said to be
the basis for issuance of the detention order. A perusal of the
documents on record would show that at one place a particular
noting made by an assistant police inspector appears to be illegible.
At another place, a rubberstamp appears to be illegible. In this
context, when the detention order is perused, it is difficult to come
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to a conclusion that the said small portion of an illegible noting in
the police record and an illegible rubberstamp, formed the basis of
issuance of the detention order. Although the document in which the
said noting is found does not find reference in the detention order,
even if it is considered that the said portions of documents were
referred in the detention order, it would still not be fatal for the
sustainability of the order, since it cannot be said that such portions
of the documents formed the basis for respondent No.2 to issue the
detention order. In this context, the judgment of a Division Bench of
this Court relied upon by the learned counsel appearing for the
petitioner, in the case of Shri Pramod Laxman Talbhandare Vs. The
Commissioner of Police and Anr. (Judgment and Order dated
21.12.2010 in Criminal Writ Petition No. 3258 of 2010), cannot be
of much assistance because in the facts of that case, this court found
that there were number of pages in the documents supplied with the
detention order that were illegible and that therefore, the detenu
therein was deprived from making an effective and purposeful
representation. In the present case, it cannot be said that merely
because a noting was illegible and so was a rubberstamp, the
petitioner stood deprived of his right to make an effective and
purposeful representation. Therefore, there is no substance in the
said ground raised on behalf of the petitioner.
12. This brings us to the third ground of challenge raised on
behalf of the petitioner. According to the learned counsel for the
petitioner, when the petitioner was already in custody, in connection
with the aforesaid FIR registered on 12.07.2020, there was no
necessity to issue the detention order. It was further contended that
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in such a situation, respondent No.1, as the detaining authority,
ought to have come to a conclusion about the imminent possibility
of release of the petitioner. It was only after such a finding was
rendered on the basis of cogent material on record, that respondent
No.1 could have issued the detention order. Attention of this Court
was invited to paragraph 7 of the detention order dated 24.08.2020
to emphasize that respondent No.1 either was not aware of or chose
not to refer to the fact that the bail application filed by the petitioner
was pending before this Court. According to the learned counsel for
the petitioner, this was a crucial factor in the present case, because if
respondent No.1 had referred to the pendency of such bail
application, the finding rendered on the aspect of imminent
possibility of release of the petitioner could have been sustained.
Reliance was placed by the learned counsel appearing for the
petitioner on judgments of the Hon'ble Supreme Court in the case of
Amritlal & Ors. Vs. Union Government through Secretary, Ministry
of Finance & Ors.2, Rekha Vs. State of Tamil Nadu through Secretary
to Government & Anr.3 and Ahmedhussain Shaikhhussain @ Ahmed
Kalio Vs. Commissioner of Police, Ahmedabad & Anr.4
13. A perusal of the aforesaid judgments would show that it is
necessary for the detaining authority to be aware of and to refer to
all relevant material which would indicate that even if the detenu is
already in custody, there is imminent possibility of his release and it
is necessary to detain him so as to prevent him from indulging in
prejudical activities. Thus, it becomes clear that merely because a
detenu is already in custody, it cannot be said that the detention
2 (2001) 1 SCC 341
3 (2011) 5 SCC 244
4 (1989) 4 SCC 751
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order cannot be issued.
14. The relevant paragraph of the impugned detention order
dated 24.08.2020 pertaining to this aspect of the matter reads as
follows:
"7. Recently the detained person has committed offence
within limits of karad city police station and he has been
arrested on dt.13/7/2020 & said offence is registered at
karad city Police Station by CR No.359/2020 p/u/s 307,
504, 506, 120(B) 34 R/w 4/25 pf arms act. That the
detained person is in Judicial Custody and his bail
application dt.21/7/2020 bearing No.339/2020 is being
rejected by ADJ Court Karad on dt.4/8/2020. Yet the said
offence is under investigation and his possibility of release
after being charge sheeted can't be ruled out in near future.
Taking cognizance of yout past & recent violent and
criminal activities, I am subjectively satisfied that as &
when release on bail, the detenue may again indulge in
activities that will be prejudicial to the maintenance of
public order in jurisdiction of karad police station."
15. Much emphasis has been placed by the learned counsel
appearing for the petitioner on the fact that although respondent
No.1 has referred to the fact that the petitioner was in judicial
custody and his bail application was rejected by the Sessions Court,
there was no reference made to the fact that the bail application
moved by the petitioner before this Court was pending. It was
vehemently submitted that respondent No.1 could have come to a
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conclusion about imminent possibility of release of the petitioner
only if the said respondent had referred to the pendency of the
aforesaid bail application before this Court. We have perused the
above quoted portion of the detention order and have also perused
the aforesaid judgments relied upon by the learned counsel for the
petitioner. As per the position of law that emerges from the said
judgments, it becomes clear that the detaining authority must be
aware of the fact that the detenu is in custody and such authority
must be reasonably satisfied with cogent material that there is
likelihood of his release and further it is necessary to detain such a
person to prevent him from indulging in prejudicial activities in view
of his antecedent activities.
16. In above quoted paragraph, respondent No.1 has indeed
referred to the fact that the petitioner was already in custody, as also
the fact that his bail application was rejected by the Sessions Court.
Thereafter, respondent No.1 has concluded that there is a possibility
of release of the petitioner upon the charge-sheet being filed.
Thereafter, respondent No.1 has referred to the past and recent
violent criminal activities of the petitioner to come to a conclusion
that if the petitioner is released, he would indulge in activities
prejudicial to the maintenance of public order. In this regard,
respondent No.1 has also relied upon two in-camera statements of
witnesses, which were recorded in proximity of time to the issuance
of the impugned detention order. In the facts and circumstances of
the present case, we are of the opinion that absence of reference to
the pending bail application before this Court in itself, would not
vitiate the detention order and that respondent No.1 did consider
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the material on record, including the recent violent activities of the
petitioner and the in-camera statements to show subjective
satisfaction of necessity to issue the detention order in respect of the
petitioner. Therefore, we do not find that the impugned detention
order can be set aside on the aforesaid third ground raised on behalf
of the petitioner.
17. In view of our findings on the said three grounds specifically
raised on behalf of the petitioner and since we have found that the
petitioner was not deprived of his right to make an effective and
purposeful representation guaranteed under Article 22(5) of the
Constitution of India, we are of the opinion that the present writ
petition is devoid of merits.
18. Accordingly, the writ petition is dismissed. Rule is discharged.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
