2002 ALL MR (Cri) 487
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI AND S.K. SHAH, JJ.

Shadeb Gulam Mohd. Dhamankar Vs. M. N. Singh & Ors.

Criminal Writ Petition No. 1386 of 2001

18th December, 2001

Petitioner Counsel: Mr. U. N. TRIPATHI
Respondent Counsel: Ms. ARUNA KAMAT

(A) Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), (as amended in 1996), S.3(3) - Preventive detention - Translation of grounds of detention - Grounds of detention served on detenu after the order of detention had been approved by the State Government - Infirmity in said translation, is inconsequential as the detenu's right to make a representation to the detaining authority shall only remain alive till the detention order is approved by the State Government.

Constitution of India, Art.22(5).

The detenu has a right to make representation to the detaining authority, till the detention order is approved by the State Government and the detention order under the said provision has to be approved by the State Government within 12 days. Under Section 8(1) of the MPDA Act, the grounds of detention have to be furnished by the detaining authority to the detenu not later than 5 days from the date of his detention. In the instant case the detention order was served on the detenu on 27.3.2001 and approved by the State Government on 28.3.2001. The translations in Hindi language, which have been annexed to this petition, shows that the grounds of detention were served on the detenu on 30.3.2001. Since the detention order was approved by the State Government on 28.3.2001 the detenus' right to make a representation to the detaining authority came to an end on the said date. It did not survive on 30.3.2001, (the date on which the grounds of detention were furnished to him), or thereafter. Since the detenus' right itself to make a representation to the detaining authority did not survive,the infirmity in the aforesaid translation was inconsequential. [Para 6]

(B) Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3(3) - Preventive detention - Detenu's right to make representation - Detention order and grounds of detention have to be read conjunctively and not in isolation.

Constitution of India, Art.22(5).

It is a trite that the detention order is founded on the grounds of detention. It is also a trite that the detenu prefers a representation against the grounds of detention and the detention order. The detention order and the grounds of detention have to be read conjunctively and in isolcation. In such a situation, it cannot be said that merely because in the Hindi translation of the grounds of detention the words, in the exercise of powers conferred under Section 3(1) and the date '23rd January, 2001' are missing the detenus' fundamental right to make an effective representation, guaranteed by Article 22(5) of the Constitution of India would be impaired. [Para 15]

JUDGMENT

VISHNU SAHAI, J. :- Through this petition preferred under Article 226 of the Constitution of India, the petitioner, who describes himself as the friend of the detenu Sohel Yunus Khopatkar @ Popat has impugned the order dated 20th March, 2001 passed by the first respondent, Mr. M.N. Singh, commissioner of Police, Brihan Mumbai, detaining the detenu under sub-section 1 of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment - 1996) (hereinafter referred to as the MPDA Act).

The detention order alongwith the grounds of detention, which were also dated 20th March, 2001 was served on the detenu on 27th March, 2001 and their true copies are annexed as annexures 'A' and 'B' respectively, to this petition.

2. It is pertinent to mention that the detention order was approved by the State Government on 28th March, 2001, as is manifest from paragraph 2 of the affidavit filed by Mr. Khopkar, Desk Officer, Home Department (Special), Government of Maharashtra, Mantralaya, Mumbai and this fact has not been disputed by the learned Counsel for the petitioner. It is also pertinent to mention that copy of the grounds of detention was furnished to the detenu in Hindi language on 30.3.2001. This is apparent from the endorsement of the detenu bearing the said date, contained in Xerox copy of the grounds of detention, (in Hindi) which has been filed alongwith the petition.

3. The prejudicial activities of the detenu which prompted the first respondent to pass the impugned order are contained in the grounds of detention (Annexure 'B'). Their perusal would show that the impugned order is founded on one CR, namely, CR. No. 164/2000 under Sections 307, 384, 387, 34 of the Indian Penal Code read with 37(a) of the Bombay Police Act, registered on the basis of a complaint dated 7.9.2000 lodged by Mohammed Yunus Mohamed Nafiz Qureshi at Sir J. J. Marg Police Station and in-camera statements of two witnesses, namely 'A' and 'B', which were recorded on 30.11.2000 and 2.12.2000 respectively.

Since in our judgment a reference to the prejudicial activities of the detenu, contained in the said CR and in camera statements, is not necessary for the adjudication of the solitary ground pressed by the learned Counsel for the petitioner, namely, that pleaded as ground 6(a) in the petition, we are not adverting to them.

4. Ground 6(a), in substance, is that since the Hindi translation of the detention order and the grounds of detention, supplied to the detenu, is not true and faithful translation of the original detention order and the grounds of detention, which are in English, the detenus' fundamental right to make a effective and purposeful representation, guaranteed to him by Article 22(5) of the Constitution of India, was impaired. In ground 6(a) several instances of incorrect translation have been mentioned, but the learned Counsel for the petitioner has restricted himself only to four of them.

5. We now propose dealing with them. Mr. Tripathi, learned Counsel for the Petitioner first referred to paragraph 7 of the original grounds of detention, in English and the Hindi translation thereof. He urged that in paragraph 7 of the original grounds of detention, the detenu has been informed that pending approval of the detention order, under Section 3(3), by the State Government, he had a right to make a representation to the detaining authority i.e. the Commissioner of Police, but in the Hindi translation, what has been communicated to him is that he could make a representation against the order issued by the State Government meaning thereby that he had a right to make a representation against the Police Commissioner.

Mr. Tripathi urged that on account of this infirmity in the translation, the detenu would have been confused, in exercising his fundamental right of making an effective and purposeful representation.

6. Ms. Kamat, learned Counsel for the respondents strenuously urged that in view of the provisions contained in Section 3(3) of the MPDA Act, the detenu has a right to make representation to the detaining authority, till the detention order is approved by the State Government and the detention order under the said provision has tobe approved by the State Government within 12 days. Ms. Kamat also urged that under Section 8(1) of the MPDA Act, the grounds of detention have to be furnished by the detaining authority to the detenu not later than 5 days from the date of his detention. Ms. Kamat contended that, admittedly, the detention order was served on the detenu on 27.3.2001 and approved by the State Government on 28.3.2001. She also contended that the endorsement Hindi language, which have been annexed to this petition, shows that the grounds of detention were served on the detenu on 30.3.2001. Ms. Kamat contended that since the detention order was approved by the State Government on 28.3.2001 the detenu's right to make a representation to the detaining authority came to an end on the said date. She contended that, it did not survive on 30.3.2001, (the date on which the grounds of detention were furnished to him), or thereafter. She consequently contended that since the detenus' right itself to make a representation to the detaining authority did not survive, the infirmity in the aforesaid translation was inconsequential.

7. We have reflected over the rival submissions. In our view, since Section 3(3) of the MPDA Act provides that the right to make a representation to the detaining authority shall only remain alive till the detention order is approved by the State Government and in the instant case, admittedly, the detention order had been approved by the State Government on 28.3.2001 and the grounds of detention were served on the detenu on 30.3.2001, we find merit in Ms. Kamat's contention.

8. The second infirmity pointed out by Mr. Tripathi, pertains to paragraph 6 of the grounds of detention. Mr. Tripathi contended that whereas in the original grounds of detention, the detaining authority has shown his awareness that the detenu has been granted bail in CR 164/2000, and has stated that while remaining at large was likely to revert to committing similar prejudicial activities to the maintenance of public order, in para 6 of the grounds of detention, in Hindi, it has been apprised to him that after coming out from jail in the said CR, he was likely to revert to committing similar prejudicial activities. He contended that on account of this infirmity, the detenu could have been misled or confused in exercising his fundamental right of making a representation.

9. We have perused paragraph 6 of the original grounds of detention and its Hindi translation and do not find the infirmity pointed out by Mr. Tripathi. In our judgment, what is mentioned in paragraph 6 of the grounds of detention in Hindi is that on account of detenu being released on bail, having come out from jail, he was likely to revert to committing similar prejudicial activities and, hence, it was imperative to detain him. We are not prepared to accede to Mr. Tripathi's submission that Hindi translation shows that the detenu was in custody in CR No. 16/2000.

10. For the said reasons, we reject this submission.

11. We now take up the third infirmity in translation pointed out by Mr. Tripathi, learned Counsel for the petitioner. He contended that whereas in paragraph 8 of the original grounds of detention, the detenu has been apprised of his right to make a representation to the State Government, such an appraisal is not there in paragraph 8 of the translation of the grounds of detention furnished to the detenu in Hindi. He contended that since the detenu has not been conveyed his valuable right of preferring a representation to the State Government in the Hindi translation of the grounds of detention, the impugned detention order cannot be sustained in law.

12. We have reflected over Mr. Tripathi's submission and do not find any merit in it. It is true that in the first line of paragraph 8 of the original grounds of detention, it has been mentioned that the detenu has a right to make a representation to the State Government and the same is not there in the Hindi translation of paragraph 8 of the grounds of detention but in our view this would make no difference because in the said paragraph, in the lines thereafter, both in the original grounds of detention and their Hindi translation, the detenu has been conveyed that in case he wanted to prefer such a representation, he may address it to the Secretary to the Government of Maharashtra (Preventive Detention), Home Department (Special), Mantralaya, Mumbai 400 032. In such a factual matrix, the representation sent on the said address would be a representation to the State Government and would be dealt by a functionary authorised by it.

13. It should be borne in mind that the detenu does not have a separate right to prefer a representation to the Secretary to Government of Maharashtra (Preventive Detention) and therefore it cannot be said that a representation sent on the said address would be a representation to him and not the State Government. For the aforesaid reasons we reject Mr. Tripathi's submission.

14. We now come to the last infirmity pointed out by Mr. Tripathi. It relates to paragraph 2 of the detention order. Mr. Tripathi urged that whereas in the original detention order (in English) the detaining authority has mentioned that in exercise of powers conferred on him under Section 3(1) of the MPDA Act read with Government Order, Home Department (Special) No. DDS-1301/1/SPL-3(8) dated 23rd January, 2001, the Commissioner of Police, Brihan Mumbai directs that the detenu shall be detained under the said Act in Hindi translation of the aforesaid paragraph of the detention order words 'now therefore in exercise of the powers conferred under Section 3(1)' and 'the date 23rd January, 2001' are missing. It is true that the said infirmity is there but we fail to understand how on account of it the detenu's fundamental right to make an effective representation guaranteed by Article 22(5) of the Constitution of India, was impaired.

15. It is a trite that the detention order is founded on the grounds of detention. It is also a trite that the detenu prefers a representation against the grounds of detention and the detention order. It is also well settled that both the detention order and the grounds of detention have to be read conjunctively and not in isolation. In such a situation, we are at our wit's end to understand as to how merely because in the Hindi translation of the grounds of detention the words, 'in the exercise of powers conferred under Section 3(1)' and the date '23rd January, 2001' are missing the detenu's fundamental right to make an effective representation, guaranteed by Article 22(5) of the Constitution of India would be impaired.

16. For the aforesaid reasons, in our view, there is no merit in the four infirmities in translation, pointed out by Mr. Tripathi, learned Counsel for the Petitioner.

17. No other point has been pressed before us by Mr. Tripathi.

18. In the result, we dismiss this Petition and discharge the rule.

Petition dismissed.