2001 ALL MR (Cri) 214
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.D. PATIL AND A.M. KHANWILKAR, JJ.
Smt. Nazma Moiddin Shaikh Vs. Shri. R. H. Mendonca & Ors.
Writ Petition No. 1253 of 2000
22nd November, 2000
Petitioner Counsel: Mr. U. N. TRIPATHI
Respondent Counsel: Ms. A. R. KAMATH
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3 - Grounds of detention - Variance between original grounds of detention in English and its translation in Hindi - Word "Public order" wrongly translated to mean "law and order" - Two are not synonymous - Breach of law and order would not be relevant for issuance of preventive detention order - Order of detention quashed and set aside.
Shashikala Vs. Union of India, 1987 Cri. L.J. 1787 [Para 7]
Surinderkumar G. Rajoria Vs. Satish Sahaney, 1996(4) ALL MR 150 [Para 7]
Sabira Shaikh Raees Vs. R. H. Mendonca, 2000 ALL MR (Cri) 936 [Para 7]
Khanwilkar, J.:- By this petition, under Article 226 of the Constitution, the petitioner, who is the wife of one Mohiddin Abdul Halim Shaikh (hereinafter referred to as "the detenu"), has challenged the detention order passed by Shri. R. H. Mendonca, Commissioner of Police, Mumbai, dated 10-7-1999 in exercise of powers conferred upon him under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities Act, 1981 (MPDA).
2. Although several contentions have been raised on behalf of the petitioner to assail the impugned detention order, however, it is wholly unnecessary to deal with each one of them, for we are of the view that the present petition should succeed on the sole ground that there is variance in the grounds of detention furnished to the detenu in Hindi version to that of the original grounds of detention in English version which inevitably impinges upon the detenu's right to make an effective representation guaranteed under Article 22(5) of the Constitution. This ground has been specifically urged in ground (C) of the writ petition, which reads thus :
"(C) The petitioner says and submits that the detenu is a person belonging to state of U.P. and understands Hindi language well and no other language. It is therefore the detaining authority has furnished the order of detention, grounds of detention and all documents of the compilation along with their Hindi translation to enable the detenu make effective representation. The petitioner says and submits that the Hindi version of the grounds of detention is not true and correct translation of their counterpart English grounds of detention. With reference to para 6 of grounds of detention the very crucial and vital word "PUBLIC ORDER" is wrongly translated as " "whose equivalent meaning in English is "LAW AND ORDER". The petitioner says and submits that Sec. 3(1) of MPDA Act cannot be attracted for the satisfaction of the detaining authority that the alleged activities of the detenu are prejudicial to the law and order. The Hindi version after the said crucial word is not true and correct translation thereby not conveying faithful meaning of its counter parts English grounds of detention. Law is well settled that furnishing wrong translation to the detenu amounts to non-communication of grounds of detention thus the first fact of Art. 22(5) of the constitution is fringed. The petitioner further submits that as a result of furnishing wrong translation the detenu lost earliest opportunity to make effective representation (to the) authorities thereby both the facts of Art. 22(5) of Constitution of violated."
3. The substratum of the point made before us is that paras 5 and 6 of the grounds of detention of the English version asserts that the detenu was habitual criminal and action taken against him under the normal law of land was found to be inadequate and ineffective to deter him from indulging in criminal activities prejudicial to the maintenance of public order.
The relevant portion of said paragraphs from grounds of detention are reproduced thus:
"5. ...... .... ..... ..... ..... You are a habitual criminal and action taken against you under the normal law of land is found to be insufficient and in-effective to deter you from indulging in criminal activities prejudicial to the maintenance of public order. ...... ..... ....."
6. ..... ....... ..... ..... that you are acting in a manner prejudicial to the maintenance of public order. I am .... .... ... . In my view of your ...... .... . . you are likely to revert to the similar activities prejudicial to the maintenance of public order in future... ....... ...."
Whereas, on the other hand, the Hindi version of the said grounds furnished to the detenu, which was stated to be accurate translation of the English version, mentions "law and order" instead of the expression "public order". The expression employed in the Hindi version is "keëeoe Deñj úegNëeNeúÙee" "keÞegÞe Deñj úegNëeNeúÙee" which obviously means "law and order".
4. In the circumstances, the petitioner contends that the Hindi translation impaired the detenu's right to make effective representation under Article 22(5) of the Constitution of India. Mr. Tripathi, appearing for the petitioner, also contends that if the detenu was to act upon the Hindi version of the detention order, the detention order would be without authority of law in as much as breach of law and order would not attract the draconian provisions of MPDA Act.
5. To counter the abovesaid contention, the respondents have today filed affidavit before this Court sworn by the detaining authority, Shri. M. N. Singh, Commissioner of Police, Brihan Mumbai, dated 21-11-2000. Para 10 of the said affidavit offers explanation, which reads thus :
"10. With reference to paragraph 7(C) of the petition, it is denied that Hindi version of the grounds of detention is not true and correct translation of their counter part English grounds of detention. The detenu is studied up to 12th standard and he is residing in Mumbai from last 15 years. The detenu has acknowledged all the documents in English signature. The said fact clearly implies that the detenu knows English and therefore, no prejudice would be caused to him if there are some minor inaccuracies in Hindi translation of the grounds of detention. It is further stated that there is no mistake of glaring nature in Hindi translation which would affect the detenu's right to make effective representation under Article 22(5) of the Constitution of India. It is denied that the translation furnished to the detenu has affected the detenu's right to make effective representation at the earliest opportunity to the authorities under Article 22(5) of the Constitution of India."
7. We hasten to remind the Respondents that identical stand was taken on behalf of the respondents in another case which came to be rejected by this Court. The effect of variance between the English and the translated version has already engaged the attention of this Court as back as in 1987. In similar situation this Court in the case of Shashikala Vs. Union of India, 1987 Cri. L.J. 1787, negatived the stand taken by the Respondents and proceeded to quash the detention order. The said decision was later on followed by another Division Bench of this Court in the case of Surinderkumar G. Rajoria Vs. Satish Sahaney, 1996(4) ALL MR 150. Even in the said decision, this Court, following the aforesaid earlier decision, observed that once a translation is furnished to the detenu, naturally, he would presume the same to be faithful and hence even assuming that he knows English he may not peruse the grounds of detention which are in English and instead be guided by the translated grounds. This Court took the view that in such a situation valuable right of the detenu guaranteed by the constitution under article 22(5) is impaired. The principle enunciated in the aforesaid decision has been followed in the latest decision of this Court in the case of Sabira Shaikh Raees Vs. R. H. Mendonca, 2000 Cri. L.J. 2339 : (2000 ALL MR (Cri) 936). Even in the recent decision referred to above, variance as noticed in the present case, had occurred. In other words, the recent decision is directly on the point, which we are called upon to examine. We have no hesitation in adopting the consistent view taken by this Court and hold that the impugned detention order is vitiated because of the said variance in the grounds of detention, for the word "public order" used in Hindi translation as "law and order". By no stretch of imagination expression "public order" and "law and order" can be said to be synonymous. We have no doubt that breach of law and order would any way be germane for the issuance of preventive detention order under MPDA Act. We, therefore, hold that because of the variance in the Hindi translation provided to the detenu his right to make effective representation under Article 22(5) of the Constitution was clearly impaired.
8. In the result, this petition succeeds. The impugned detention order dated 10-7-1999 passed by the Commissioner of Police Greater Bombay against Mohiddin Abdul Halimj Shaikh-detenu is quashed and set aside and it is directed that the detenu be set at liberty forthwith unless required in some other case. Rule made absolute accordingly.