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2001 DIGILAW 995 (BOM)

Ramjit Devnarayan Pandey v. M. N. Singh & others

2001-12-05

S.K.SHAH, VISHNU SAHAI

body2001
JUDGMENT - VISHNU SAHAI, J.:---Through this writ petition, preferred under Article 226 of the Constitution of India, the petitioner who describes himself as the husband of the detenu Smt. Shashikala Ramji Pande, has impugned the order dated 3rd August, 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 (hereinafter referred to as the M.P.D.A. Act). 2. The detention order alongwith the grounds of detention, which are also dated 3rd August, 2001, was served on the detenu on 4th August, 2001 and their true copies have been annexed as Exhibits 'A' and 'B' respectively to this petition. 3. The prejudicial activities of the detenu which promoted the first respondent to pass the impugned order against him are mentioned in the grounds of detention (Exhibit 'B'). Their perusal would show that the impugned order is founded on one L.A.C., namely, L.A.C. No. 572/2001 under section 52 r/w. 43 of the M.R.T.P. Act, registered on the basis of a complaint dated 13-3-2001, lodged by Kamlesh Rodmal Bhutta at Borivali Police Station and in-camera statements of four witnesses, namely, 'A', 'B', 'C' and 'D' which were recorded on 20-6-2001, 23-6-2001, 25-6-2001 and 26-6-2001 respectively. A perusal of paragraph 5 of the grounds of detention would show that the detenu has been detained as a “dangerous person” in terms of section 2(b-1) of the M.P.D.A. Act. 4. We have heard learned Counsel for the parties. It is common ground between them, that although a perusal of paragraph 5 of the original grounds of detention, which are in English, shows that the detenu has been detained as a 'Slumlord' under section 2(f) of the M.P.D.A. Act, a perusal of paragraph 5 of the copy of Hindi translation of the grounds of detention, supplied to the detenu, shows that the detenu has been detained as a “dangerous person”. Mr. U.N. Tripathi, learned Counsel for the petitioner, strenuously urged that on account of the aforesaid discrepancy, the detenu would have been confused or misled in exercising his fundamental right of making a representation, guaranteed to him by Article 22(5) of the Constitution of India. Mr. U.N. Tripathi, learned Counsel for the petitioner, strenuously urged that on account of the aforesaid discrepancy, the detenu would have been confused or misled in exercising his fundamental right of making a representation, guaranteed to him by Article 22(5) of the Constitution of India. He contended that the detenu would have been at his wits' end as to whether he was being detained for acting in a manner prejudicial to the maintenance of public order as a slumlord or as a dangerous person in terms of section 2 of the M.P.D.A. Act. 5. We have reflected over Mr. Tripathi's submission and make no bones in observing that we find merit in it. 6. A perusal of section (2) of the M.P.D.A. Act would make it manifest that the requirement for detaining a person as a “dangerous person” under section 2(b-1) of the M.P.D.A. Act is absolutely distinct and different from that for detaining a person as a slumlord under section 2(f) of the said Act. This would become manifest if the definition of “dangerous person” and “slumlord” is perused. Dangerous person has been defined in section 2(b-1) of the M.P.D.A. Act. This would become manifest if the definition of “dangerous person” and “slumlord” is perused. Dangerous person has been defined in section 2(b-1) of the M.P.D.A. Act. Section 2(b)(1) reads thus:--- “dangerous person” means a person, who either by himself or as a member of leader of a gang, habitually commits, or attempt to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.........” Slumlord has been defined in section 2(f) of the said Act reads thus:--- “Slumlord” means a person, who illegally takes possession of any lands (whether belonging to Government, local authority or any other person) or enters into or creates illegal tenancies or leave and licence agreements or any other agreements in respect of such lands, or who constructs unauthorized structures thereon for sale or hire, or gives such lands to any person on rental or leave and licence basis for construction, or use and occupation, of unauthorized structures, or who knowingly gives financial aid to any persons for taking illegal possession of such lands, or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation or other charges by criminal intimidation, or who evicts or attempts to evict any such occupiers by force without resorting to the lawful procedure, or who abets in any manner the doing of any of the above mentioned things;” 7. A perusal of sections 2(b-1) and 2(f) of M.P.D.A. Act would show that dangerous person and slumlord are distinct and different and different requirements have to be satisfied for showing that a person committed acts prejudicial to the maintenance of public order as a dangerous person and slumlord, in terms of section 2 of the M.P.D.A. Act. In our view on account of the aforesaid infirmity in translation the detenu would have been at his wits end, whether he had committed acts prejudicial to the maintenance of public order as a dangerous person or as a slumlord. That being so to repeat, he would have been confused in exercising his fundamental right guaranteed by Article 22(5) of the Constitution of India, of making a representation at the earliest opportunity. 8. That being so to repeat, he would have been confused in exercising his fundamental right guaranteed by Article 22(5) of the Constitution of India, of making a representation at the earliest opportunity. 8. Article 22(5) of the Constitution of India reads thus :— “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” A perusal of the said provision would show that the Detaining Authority at the earliest opportunity should communicate to the person, who is preventively detained, the grounds on which the detention order has been made and should also afford him the earliest opportunity of making a representation against the detention order. It is implicit in the language of Article 22(5) of the Constitution itself, that unless copy of the grounds of detention is supplied to the detenu in a language known to him, he would not be able to exercise his fundamental right of making a representation guaranteed by the Constitution and if a translation of the grounds of detention is supplied to the detenu in a language known to him, the said translation should be a true and faithful translation of the original grounds of detention; at any rate, it must convey the same meaning which is in the original. 9. In our view in the instant case, the translation of paragraph 5 of the grounds of detention, supplied to the detenu in Hindi language is anything but a true and faithful translation of the original in English. We say this because a perusal of paragraph 5 of the original grounds of detention, which is in English, shows that the detenu has been detained as a slumlord under section 2(f) of the M.P.D.A. Act and a perusal of Hindi translation of paragraph 5 of the grounds of detention would show that he has been detained as a dangerous person. 10. We are constrained to observe that on account of the aforesaid blunder in Hindi translation, we are left with no other alternative but to allow this petition. 10. We are constrained to observe that on account of the aforesaid blunder in Hindi translation, we are left with no other alternative but to allow this petition. And we make no bones in observing that we feel distressed in doing so because we find from a perusal of the grounds of detention that there was sufficient material for the detaining authority to have detained the detenu as a slumlord in terms of section 2(f) of the M.P.D.A. Act. But hard cases would not and should not make bad law. We having no reservations in observing that if the Detaining Authority wants that detention orders be upheld by this Court under Article 226 of the Constitution of India, it should ensure that correct translations, which convey the true meaning, are furnished to the detenu. The Detaining Authority should always remember that eternal vigilance is the price which this Court expects from him and his officers if they want a preventive detention order to be sustained by it. 11. For the aforesaid reasons, we are of the view that this petition must succeed. 12. In the result:--We allow this petition; quash and set aside the impugned detention order; direct that the detenu Smt. Shashikala Ramji Pande be released forthwith unless wanted in some other case; and make the rule absolute. Petition allowed. -----