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2000 DIGILAW 56 (BOM)

Sabira Shaikh Raees v. R. H. Mendonca & others

2000-01-31

P.V.KAKADE, VISHNU SAHAI

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JUDGMENT - SAHAI VISHNU, J.:---Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who styles herself as the wife of the detenu Raees Bashir Shaikh, has impugned the detention order dated 21st July, 1999 passed by the first respondent Mr. R.H. Mendonca, 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. L.V. of 1981) (Amendment 1996) (hereinafter referred to as the M.P.D.A. Act). The detention order along with the grounds of detention also dated 21st July, 1999, was served on the detenue on 13th August, 1999. True copies of the detention order and the grounds of detention are annexed as Annexures A and B respectively to this writ petition. 2. A perusal of the grounds of detention would show that the impugned detention order is founded on one C.R., namely C.R. No. 265 of 1998 of Sir. J.J. Marg Police Station, Mumbai, under sections 224, 225, 143, 147, 148, 332 and 452 Indian Penal Code registered on a complaint lodged by Police Constable Pravin Kadam and who two in-camera statements of witnesses A and B respectively. 3. We have heard learned Counsel for the parties. Since in our view, this petition deserves to succeed on the ground pleaded as ground No. 9(D) in the petition, we are neither adverting to the other grounds of challenge raised in the writ petition nor to the details of the prejudicial activities of the detenue contained in the grounds of detention, giving rise to the impugned detention order. 4. Ground No. 9(D) in short is that the detenue is well-conversant in Hindi language and the Hindi translation of documents furnished to him suffers from some basic infirmities which have impaired his right to make an effective representation under Article 22(5) of the Constitution of India. Mr. Tripathi learned Counsel for the petitioner, amongst others, invited our attention to two infirmities. Mr. Tripathi learned Counsel for the petitioner, amongst others, invited our attention to two infirmities. He urged that in para 5 of the grounds of detention, which are in English, it has been averred that the detenue was a 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 in the limits and areas in Brihan Mumbai. Mr. Tripathi urged that in the Hindi translation of the said portion of para 5 of the grounds of detention, it has been mentioned in the place of public order law and order. Mr. Tripathi also urged that whereas in para 6 of the grounds of detention, which has said earlier are in English, it has been mentioned that the Detaining Authority was subjectively satisfied that in case the detenue was not preventively detained under the M.P.D.A. Act, he would revert to similar activities prejudicial to the maintenance of public order in future, in the Hindi translation of the said portion of para 6 it has been mentioned that he would revert to similar activities prejudicial to the maintenance of law and order in future. Mr. Tripathi vehemently contended that the aforesaid inaccuracies in the Hindi translation impaired the detenues right to make an effective representation under Article 22(5) of the Constitution of India. In fact, Mr. Tripathi went to the extent of urging that in case of breach of law and order, M.P.D.A. Act would not be attracted. 5. Ground No. 9(D) has been replied to in para 18 of the return of the Detaining Authority. Mr. Rajiv Patil, learned Counsel for the respondents strenously urged that the said ground is devoid of substance for two reasons namely:--- (a) the detenue knew English and therefore no prejudice was caused to him if there were some minor inaccuracies in the Hindi translation of the grounds of detention; and (b) there was no mistake of a glaring nature in the Hindi translation which would affect the detenues right to make an effective representation under Article 22(5) of the Constitution of India. It is pertinent to mention that the said stand has also been taken in para 18 of his return by the Detaining Authority where ground No. 9(D) has been replied to. 6. It is pertinent to mention that the said stand has also been taken in para 18 of his return by the Detaining Authority where ground No. 9(D) has been replied to. 6. We have reflected over the rival submissions and we are constrained to observe that we do not find any merit in Mr. Patils submission. We make no bones in observing that once the Detaining and Sponsoring Authority decided to furnish a Hindi translation to the detenue it hardly lay in their mouth to suggest that they had a licence to give the incorrect translation because, the detenue knew English and no prejudice would be caused to him on account of some incorrectness in the Hindi translation. We could have appreciated had the detaining authority taken the stand that since the detenue knew English, it was under no obligation to supply him the Hindi translation but, we cannot give judicial protection to the mistake in the Hindi translation on account of this fact. In this connection, it would be pertinent to refer to para 17 of the decision of a Division Bench of this Court, reported in 1987(1) Bom.C.R. 617 , (Smt. Shashikala Krishnarao Rane Petitioner v. Union of India and others, Respondents)1. A perusal of the said para would show that the Marathi translation of the grounds of detention as also the declaration under section 9(1) of the COFEPOSA Act supplied to the detenue, contained some mistakes and in spite of the fact that the detenue knew English the Division Bench accepted the contention of the petitioners Counsel (Mr. M.G. Karmali) that they could not be put in the cold storage. We are extracting the relevant portion of the observations contained in the said para which read thus:--- "We are inclined to accept this submission made by Mr. Karmali. If the Detaining Authority thought it expedient to furnish the translation even though the detenue knew English, then the detenue was entitled to take advantage of the translations and to point out that the translations which he relied upon did not convey a faithful meaning of the original grounds or the declaration under section 9(1) of the Act and were such as to make it impossible for the detenue to communicate and on that ground also the order ought to be struck down." 7. We are also not inclined to accept Mr. We are also not inclined to accept Mr. Patils contention that the inaccuracies in the translation were of a minor nature and did not affect the detenues right to make a proper and effective representation under Article 22(5) of the Constitution of India. As we have seen earlier in paras 5 and 6 of the grounds of detention, the word public order was used, but, in the Hindi translation of the said paras, public order was translated as law and order. 7-A. We regret that public order and law and order are not synonymous. The two terms are distinct in the eyes of law, and so distinct that the breach of law and order would not invite the issuance of a preventive detention order under the M.P.D.A. Act but, a breach of public order would. 8. It should be borne in mind that preventive detention is a draconian piece of legislation. The law may permit it on the principle of doctrine of necessity; it being imperative where the prejudicial activities of a person sought to be detained cannot be contained or curbed by the ordinary law of land but, as the Supreme Court observed way back in the year 1981, in the decision reported in A.I.R. 1981 S.C. 431, (Smt. Shalini Soni v. Union of India and others )2,: "Since all the constitutional protection that a detenue can claim is the little that is afforded by the procedural safeguards prescribed by Article 22(5) read with Article 19, the courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenue." (Emphasis supplied). 9. If the said ratio of the Apex court is to be borne in mind then, there is no getting away from the fact that the translation of the documents supplied to the detenue must be accurate, and where the same is not, as is the case here, the logical imperative, howsoever regrettable from the stand point of law and order, would be that the detenue would have to be released. 10. In the circumstances, we allow this writ petition; quash the impugned detention order; direct that the detenue-Raees Bashir Shaikh be released forthwith unless wanted in some other case; and make the Rule absolute. Writ petition allowed. -----