2010(6) ALL MR 661
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.H. MARLAPALLE AND A.V. MOHTA, JJ.
Shri. Nasir Maqbul Shaikh Vs. Commissioner Of Police, Solapur & Anr.
Writ Petition No.996 of 2010
3rd August, 2010
Petitioner Counsel: Mr. S. R. CHITNIS,Mr. U. N. Tripathi
Respondent Counsel: Mr. J. P. YAGNIK
Constitution of India, Art.22(5) - Right to make representation - English version of detention order stated that detention is made to prevent detenu acting against maintenance of supply of essential commodity to community - Marathi version, however, stated to prevent detenu acting against public order - Purpose of detention differs substantially in two versions - Detenu deprived from making effective representation - Detention illegal. AIR 1990 SC 1184 - Rel. on. (Para 5)
Cases Cited:
Vijay Kumar Dharna alias Kokta Vs. Union of India, AIR 1990 SC 1184 [Para 1,3,5]
A. C. Razia Vs. Government of Kerala, 2004 ALL MR (Cri) 2252 (S.C.)=(2004)2 SCC 621 [Para 4]
JUDGMENT
ANOOP MOHTA, J. :- The petitioner, who is a brother of detenu Salim Maqbul Shaikh (Salim Shethji), by this petition has challenged the Order of detention of six months dated 13.03.2010, passed by the Office of the Commissioner of Police, Solapur, which was served on the detenu on the same day, under The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, on various grounds. Mr. S. R. Chitnis, the learned Senior Counsel, has restricted the submission based upon Vijay Kumar Dharna alias Kokta Vs. Union of India & ors., AIR 1990 SC 1184, by referring to grounds in para 7(b) which reads as under:
"(b) The petitioner says and submits that he has been supplied with Marathi translation of the order of detention in which it is wrongly stated that the petitioner is prevented from acting in any manner prejudicial to the maintenance of 'public order', whereas in the English verse it is stated that the petitioner is detained with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community. The translation supplied to the petitioner and more particularly, the very purpose of detention is wrongly mentioned in the order, thereby creating confusion and misleading the petitioner. As a result of furnishing wrong translation of the order, the petitioner is deprived from making any effective representation to the Competent Authorities and his right to make representation guaranteed under Article 22(5) of the Constitution of India is violated. The order of detention is illegal and bad in law, ought to be quashed and set aside."
2. We have also gone through the impugned order as well as the translation so supplied and the affidavit in reply filed by the respondents. These two documents remained uncontroverted and also the ground so raised.
3. The Apex Court in Vijay Kumar Dharna (supra) has set aside the detention order on the ground that such variance defeat the right of the petitioner to make effective representation before the concerned authorities. It is necessary for proper representation and/or for effective representation that the grounds/the reasoning in the order of detention should be clear and should not be in variance.
4. Mr. Yagnik, the learned APP for the State has strongly relied on the judgment of A. C. Razia Vs. Government of Kerala & Ors. (2004)2 SCC 621 : [2004 ALL MR (Cri) 2252 (S.C.)], to oppose the above basic submission raised by the Petitioner. The Supreme Court has reiterated the importance of supply of translated documents in this judgment. The supply of wrongly translated document is the bone of contention in the present case, specially because the Respondent officer's averments are that the translation so made was not incorrect. We are also satisfied that the maintenance of supplies of essential commodities to the community cannot be equated with the maintenance of public order. Both are different concepts. The stand of the respondent is not correct. The present case is of supply of wrong translation of the basic reason and not of non-supply of the translation. The facts and circumstances are, therefore, distinct and distinguishable.
5. We have noted that the impugned order of detention in its English version states that the detention is with a view to prevent detenu from acting in any manner prejudicial to the maintenance of supply of essential commodities to the community, whereas, its Marathi translation shows that, with a view to prevent him acting in any manner prejudicial to public order. Thus, the very purpose for which the impugned order of detention has been passed defers substantially in the impugned order in its English translation and in the Marathi translation and hence, the law laid down by the Supreme Court in Vijay Kumar Dharna (supra) is squarely applicable.
6. We are, therefore, of the opinion that the impugned order of detention need to be quashed and set aside. However, it is made clear that this in no way to hamper and/or affect the criminal cases pending against the detenu under the Essential Commodities Act, 1955 and/or such other and/or similar order in future.
7. In the result, the Petition is allowed in terms of prayer (c).