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2008 DIGILAW 1676 (BOM)

Firoz s/o Aziz Khan v. State of Maharashtra

2008-12-01

A.P.BHANGALE, K.J.ROHEE

body2008
Judgment:- K.J. Rohee, J. 1. Heard. 2. Rule. Returnable forthwith. Heard finally by consent of parties. 3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated 12.6.2008 passed by the Commissioner of Police, Nagpur City (R-2) directing detention of the petitioner under Section 3(1)(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (hereinafter referred to as 'M.P.D.A' Act). Along with the detention order the grounds of detention were served on the petitioner. The grounds disclosed that the petitioner has been involved in 14 offences which showed his tendency towards commission of grave offences which are against the maintenance of public order. However, these offences were not considered while passing detention order against the petitioner. 4. CrimeNo.72/2008 under Sections 143, 147, 148, 149, 307, 294, 506 (B) of the Indian Penal Code and Crime No.3054/2008 under Sections 294, 506(B) of the Indian Penal Code, both at Police Station, Sakkardara, as well as statements of witness 'A' and witness 'B' recorded in-camera, were taken into consideration for subjective satisfaction of R-2 that the petitioner is a .dangerous person. as defined under the provisions of the M.P.D.A. Act. Thus having been satisfied that the activities of the petitioner are prejudicial to the maintenance of public order and that the petitioner is likely to indulge in such activities, the petitioner was directed to be detained. 5. On the same day, the petitioner was detained in Central Jail, Nagpur and, thereafter, he was shifted to and detained in Aurangabad Jail. The said order was confirmed by the Advisory Board on 17.7.2008 and the same was communicated to the petitioner. After considering the opinion/report of the Advisory Board, the State Government (R-1) confirmed the detention order detaining the petitioner for a period of one year from the date of his detention. The petitioner has challenged the said orders by praying for quashing and setting aside those orders. 6. After considering the opinion/report of the Advisory Board, the State Government (R-1) confirmed the detention order detaining the petitioner for a period of one year from the date of his detention. The petitioner has challenged the said orders by praying for quashing and setting aside those orders. 6. According to the petitioner there is no material to satisfy that the petitioner has acted in any manner which is prejudicial to the maintenance of public order; the respondents have failed to consider the distinction between breach of law and order and public order; that R-2 failed to consider that Crime No. 72/2009 was registered against the petitioner on the basis of report by an individual having grudge against the petitioner; that only two offences have been registered against the petitioner during the last three years; that in all the crimes registered against the petitioner he has been released on bail and he has not misused the liberty; that the petitioner is not convicted in any of the offences; that mere pendency of the crimes does not entitle the respondents to hold that the petitioner committed the alleged crimes; that the petitioner is a Muslim and he is not conversant with the Marathi language; that respondent no.2 failed to supply to the petitioner translated copies of the documents which were relied upon by the detaining authority; that respondent no.1 confirmed the detention order in a mechanical manner without applying mind; the period of detention has not been indicated in the detention order; that respondent no.2 committed grave mistake by detaining the petitioner for maximum period of 12 months without giving reasons; that respondent no.2 did not give chance of personal hearing to the petitioner and that no opportunity was given to the petitioner to defend himself. On these counts the impugned orders are illegal and liable to be quashed and set aside. 7. The Commissioner of Police Nagpur City (R-2) opposed the petitioner by filing submissions as well as two additional affidavits. It is submitted that the petitioner is continuously engaged in the commission of violent and desperate criminal activities and is a notorious bully of that locality. The petitioner committed two serious offences namely Crime No. 72/2008 under Sections 143, 147, 148, 149,307, 294, 506(B) and Crime No. 3054/2008 under Sections 294, 506(B) of IPC. It is submitted that the petitioner is continuously engaged in the commission of violent and desperate criminal activities and is a notorious bully of that locality. The petitioner committed two serious offences namely Crime No. 72/2008 under Sections 143, 147, 148, 149,307, 294, 506(B) and Crime No. 3054/2008 under Sections 294, 506(B) of IPC. It is also submitted that the petitioner is involved in offences punishable under M. P. D. A. Act. Two criminal cases and two in-camera statements disclose the acts of the detenu which are prejudicial to the maintenance of public order. Due to these cases public order was largely disturbed. These cases are of public order and not of law and order. According to R-2 it is a case of public order and the detention order is legal and proper. It is further submitted that the grounds of detention with Hindi translation and other relevant documents were supplied to the petitioner. It is submitted that Police Inspector, Detention Cell, Crime Branch, Nagpur has explained to the petitioner each and every document in Hindi while serving detention order and the grounds of detention; that R-2 has complied with all the necessary requirements as per the provisions of M. P. D. A. Act and Article 22(5) of the Constitution of India. It was further submitted by R-2 that the copies of several relevant documents were supplied to the petitioner. Thus the petition is without substance and is liable to be dismissed. 8. By way of rejoinder the petitioner submitted that the detention order was passed by Dr. Satyapal Singh the then Commissioner of Police Nagpur City and the affidavit is filed by Shri Pravin Dixit, the present Commissioner of Police Nagpur City. No reason is assigned in this respect by the Competent Authority to detain the petitioner. It is submitted that the mother tongue of the petitioner is Urdu and the translation of all the documents relied upon by R-2 including the copies of F. I. Rs. was not supplied to the petitioner. Merely supplying copies of F. I. Rs. is not the compliance of Section 8. It was contended that all the translated material has to be given to the detenu. There is neither averment in the detention order nor any material is placed on record to show that all the documents were translated in Hindi and the translated copies are supplied to the petitioner. is not the compliance of Section 8. It was contended that all the translated material has to be given to the detenu. There is neither averment in the detention order nor any material is placed on record to show that all the documents were translated in Hindi and the translated copies are supplied to the petitioner. The petitioner cannot read, write or understand Marathi language. It was submitted that the translation is not signed or certified by the responsible Officer and only stamp is affixed on it. The respondents have failed to discharge the obligations cast upon them and it is violative of Article 22 (5) of the Constitution of India. The petitioner is deprived of the opportunity to make proper representation. On this count itself the order of detention is unconstitutional and is liable to be quashed. 9. We have heard Mr. Shyam Dewani, Advocate for the petitioner and Mr. N.W. Sambre, Public Prosecutor for the respondents. We have also gone through the documents produced by the parties. 10. A perusal of the grounds of detention shows that in the past the petitioner was involved in 14 offences, which shows his tendency towards the commission of grave offences, which are against the maintenance of public order. However, these offences are not considered while passing the detention order. At the same time the copies of F. I. Rs. of those offences were enclosed with the grounds and were supplied to the petitioner. 11. If the Detaining Authority has not taken into consideration 14 offences registered against the petitioner between 1992 and 2007 and on the basis of which prosecutions are pending before the Courts, we fail to understand as to why this fact was mentioned in the grounds. This clearly shows that the Detaining Authority must have been influenced by the pendency of those cases against the petitioner while arriving at subjective satisfaction though it is mentioned that those offences were not considered while passing the detention order against the petitioner. 12. The grounds of detention further show that the petitioner has no regard for law inasmuch as despite initiation of externment proceedings under Section 110 of Cr. P. C. against the petitioner, there was no improvement in his behaviour. The affidavits filed by R-2, however, nowhere discloses as to which documents in respect of externment proceedings against the petitioner were supplied to him apart from Hindi translation thereof. 13. P. C. against the petitioner, there was no improvement in his behaviour. The affidavits filed by R-2, however, nowhere discloses as to which documents in respect of externment proceedings against the petitioner were supplied to him apart from Hindi translation thereof. 13. The grounds further show that on 02.03.2008 around 9 a.m. the petitioner whipped out a sword from his Pan Shop and stabbed Firoz Khan Iqbal Khan resident of Sindhiban, Tajbagh, Nagpur. In that connection Crime No. 72/2008 under Sections 143, 147, 148, 149,307, 294, 506(B) of IPC was registered against the petitioner and his associates. All of them were arrested in due course. The Police custody of the petitioner was obtained and thereafter the petitioner was remanded to Magisterial custody. Further investigation is going on. 14. The grounds further show that on 18.3.2008 in the midnight the petitioner went to the house of Firoz Khan Iqbal Khan and abused Firoz Khan Iqbal Khan and his mother Smt. Shamsunnisa in filthy language. The petitioner also threatened them with life. In that connection Crime No. 3054/2008 under Sections 294, 506 (B) IPC was registered against the petitioner. He was arrested on 25.03.2008 and was released on bail by the concerned Magistrate. Thereafter charge sheet has been filed against the petitioner. 15. From the F. I. Rs. in both these crimes, it is apparent that the incidents arose out of grudge against Firoz Khan Iqbal Khan which might have created the problem of law and order. But it is difficult to hold that those crimes were likely to affect adversely the maintenance of public order. 16. A perusal of secret statements of witnesses ‘A’ and ‘B’ show that the petitioner and his associates forcibly recovered hapta from the occupants of hut and shopkeeper. 17. The grounds further show that on 20.05.2008 an unknown person informed P.S. Sakkardara on phone that the petitioner and his associates armed with sword and knives were moving in that area, threatening the shopkeepers and demanding money from petty businessmen. When the Police rushed on the spot, the petitioner and his associates disappeared. 18. Thus it would be seen that from the secret statements of witnesses .A. and .B. and phone call from unknown person, it can be said that there was material before the Detaining Authority for its subjective satisfaction that the activities of the petitioner were likely to affect adversely the maintenance of public order. 18. Thus it would be seen that from the secret statements of witnesses .A. and .B. and phone call from unknown person, it can be said that there was material before the Detaining Authority for its subjective satisfaction that the activities of the petitioner were likely to affect adversely the maintenance of public order. 19. The material on record shows that there was continuity in the commission of the offences. The alleged offences took place in February 2008, March 2008 and May 2008. Thus the crimes were committed persistently and there was continuity in the commission of the offences. They had a direct bearing on the question of maintenance of public order. The order of detention was passed on 12.06.2008 and there was no delay at all in passing the order of detention. 20. The learned counsel for the petitioner, however, contended that the petitioner is Muslim and is conversant only with Hindi language. He does not understand Marathi language. As such it was necessary for the Detaining Authority to supply Hindi translation of all the documents to the petitioner. However, the submission of the respondents show that the contents of the documents were explained to the petitioner in Hindi and his acknowledgment was obtained. The plea of the respondents further shows that Hindi translation of some of the documents was supplied to the petitioner. According to the learned counsel for the petitioner in the absence of supply of Hindi translation of all the documents, detenu's right to make effective representation against the order of detention guaranteed under Article 22 (5) of the Constitution of India gets affected. The petitioner has been deprived of exercising his right under the said Article and as such the detention order is liable to be quashed. In support of this submission, the learned counsel for the petitioner relied on the following cases:- (A) In Farooq @ Firoz Hasan Bhagwan –vs- Commissioner of Police. (1999(3) Mh. L.J. 186) it was held by a Division Bench of this Court that: “when the detenu was knowing only Hindi and no other language and Hindi translation of the injury report relied upon by the Detaining Authority in arriving at subjective satisfaction to detain the petitioner, not supplied along with detention order, the detenu's right to make representation under Article 22 (5) impaired and on this count the detention order was quashed.” (B) In Soud Ahmed –vs- O.P. Bali. (1999 (3) Mh. L. J. 261) a Division Bench of this Court held that: “The detenu was conversant only with Hindi language and defective translation of the grounds of detention was supplied to the detenu twice. On this count it was held that right of detenu under Article 22(5) to make effective representation affected and that the detention order was quashed.” (C) InVijay Damaji Gaidhane –vs- State of Maharashtra. (2001 (1) Mh.L.J . 159), a Division Bench of this Court held that: “Where the detenu was knowing Marathi and no translation of the documents was supplied to him and when the Officer serving detention order merely explained the documents in Marathi to detenu in presence of Jailor, there was non supply of documents relied upon by the Detaining Authority in the language known to the petitioner which deprived the detenu of exercising his right of making effective representation under Article 22 (5) of the Constitution. The order of detention was quashed and set aside.” 21. As against this, it was submitted by Mr. N.W. Sambre, the learned Public Prosecutor that the order of detention as well as grounds of detention were explained to the petitioner in Hindi. Not only that Hindi translation of relevant documents was also supplied to the petitioner. Hence there was full compliance of the provisions of Article 22 (5) of the Constitution of India and no fault can be found with the impugned order on that count. 22. We have carefully considered the rival contentions in this respect. There appears an endorsement dated 16.06.2008 on the detention order and the grounds of detention that the contents thereof have been explained to the petitioner in Hindi language. However, the endorsement does not show as to who explained the contents of those documents in Hindi to the petitioner so also no affidavit of any Officer has been filed in support of this endorsement. It seems that the Police Inspector, Detention Cell, Crime Branch, Nagpur City translated the detention order and the relevant documents in Hindi. However, the name of the Police Inspector is nowhere disclosed nor his affidavit has been filed. 23. It seems that the Police Inspector, Detention Cell, Crime Branch, Nagpur City translated the detention order and the relevant documents in Hindi. However, the name of the Police Inspector is nowhere disclosed nor his affidavit has been filed. 23. From the record of Crime No. 72/2008 of P.S. Sakkardara, Nagpur City it appears that on 26.03.2008 the petitioner agreed to discover the sword with which he assaulted Firoz Khan Iqbal Khan on 02.03.2008 at 9 p.m. Accordingly on the same day the petitioner discovered sword and a bamboo stick from a dilapidated room behind Nizam Hotel near Bada Tajbagh. However, there is nothing to show that Hindi translation of the memorandum and discovery panchanama has been supplied to the petitioner. This document establishes the link between the commission of the offence and the petitioner and as such is very material document. Hindi translation thereof was necessary to be supplied to the petitioner. In its absence the right of the petitioner to make effective representation against the detention order was impaired. 24. It is surprising to note that it is alleged that the petitioner assaulted Firoz Khan Iqbal Khan with a sword and injured him. However, there is nothing on record to show that Firoz Khan Iqbal Khan was referred to Government Hospital for medical examination and no document about injuries to Firoz Khan Iqbal Khan is on record. The injury report about Firoz Khan Iqbal Khan is a vital document, which should have been supplied to the petitioner with Hindi translation thereof. Failure to do so, obviously affected the right of the petitioner to make effective representation against the detention order. 25. It is further contended by the respondents that the order of detention dated 12.06.2008 was forwarded by the Joint Commissioner of Police to the Secretary (Preventive Detention), Home Department (Special), Mantralaya, Mumbai on 16.06.2008 and that vide communication dated 19.06.2008 Deputy Secretary, Government of Maharashtra, Home Department (Special) forwarded confirmation by the Government of the order of detention. However, Hindi translation of the reference made to the Government on 16.06.2008 and confirmation/approval by order dated 19.06.2008 by the Government has not been supplied to the petitioner. Needless to say that they are very vital documents and on account of failure to supply Hindi translation thereof to the petitioner, the petitioner's right to make effective representation was materially affected. 26. Needless to say that they are very vital documents and on account of failure to supply Hindi translation thereof to the petitioner, the petitioner's right to make effective representation was materially affected. 26. On these grounds, the order of detention is rendered invalid and is liable to be quashed and set aside. In the result, we pass the following order:- The petition is allowed. The order of detention dated 12.06.2008 is quashed and set aside. The petitioner be set at liberty forthwith unless required in some other case. Rule is made absolute accordingly.