Bombay High Court
Dharmendra Kamlakar Tangadi vs Commissioner Of Police on 25 June, 2012
Author: A.M.Khanwilkar
Bench: A.M.Khanwilkar, A.R.Joshi
Jvs. WP.1215.2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1215 OF 2012
Dharmendra Kamlakar Tangadi,
Age 37 years, Occ. Agriculture,
Residing at: At Khedi, Post Paya,
Taluke Bhiwandi, Dist. Thane
(Brother-in-law of the detenu) :- Petitioner
versus
1) Commissioner of Police, Thane
2) The State of Maharashtra
3) The Superintendent,
Yerwada Central Prison, Pune :- Respondents
........
Mr.U.N.Tripathi for Petitioner.
Mrs.A.S.Pai, A.P.P. for State.
........
CORAM:A.M.KHANWILKAR &
A.R.JOSHI,JJ.
RESERVED ON:JUNE 18, 2012.
PRONOUNCED ON:JUNE 25th, 2012
JUDGMENT (Per A.M.Khanwilkar, J.)
Rule. Rule is made returnable forthwith. Counsel for the Respondents waive notice. Heard finally forthwith, by consent.
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2) This habeas corpus Petition is filed by the brother-in-
law of the detenu Shri. Janardan @ Janyadada Chintaman Bhoir, who has been detained under the order of the Commissioner of Police, Thane, dated 10th February, 2012, passed in exercise of powers conferred under Section 3(2) of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "MPDA Act"). This order is challenged in the present Petition.
3) The detenu was taken into custody and was served with copy of the order and the grounds of detention, directing his detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, in future. He has been detained in Yerwada Prison, Pune. The grounds of the detention, refer to the background necessitating the detention of the detenu as his activities were found to be violent and terrorising criminal character as per the record of Narpoli Police Station, Thane. In the Gunda Register, maintained at the Police Page 2 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc Station, cases have been registered against him for indulging in criminal activities since 1995, such as, murder, riots, attempt to commit murder, abduction, hurt, grievous hurt, extortion, wrongful restrain, restraining the Government servant in his lawful work etc., punishable under the provisions of Indian Penal Code, as also of illegal possession of weapons, punishable under the Bombay Police Act. It is noted that the detenu has no ostensible means of livelihood. He moves in the area with weapons and do not hesitate to use the same in commission of offences. He has chosen criminal activities as his means of livelihood.
4) The detenu was detained by the Commissioner of Police, Thane, vide order dated 30 th June, 2005, under Section 3 of the MPDA Act, which order was confirmed by the Advisory Board. Once again, he was detained vide order dated 29 th May, 2007, passed by the Commissioner of Police, under Section 3 of the MPDA Act and even that order was confirmed by the Advisory Board. In paragraph 4 of the grounds of detention, it is Page 3 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc mentioned that the criminal activities of the detenu have continued unabated. Reference is then made to the specific incident occurred on 11th October, 2011, at 8.00 p. m. and that case has been registered as C. R. No. I-276/2011 for offences punishable under Section 385, 387, 506(2), 342, 323, 427, 34 of Indian Penal Code. It is stated that the detenu was arrested in connection with the said case, but has been released on bail on 23rd October, 2011, pursuant to the order of the Judicial Magistrate, First Class, 2nd Court, Bhiwandi. It is stated that the said case is still under investigation. Reference is then made to the anonymous application received from the residents of Walgaon Village, Bhiwandi, complaining about the atrocious acts of the detenu and his associates in the area. The contents of the said application have been adverted to. Thereafter, details regarding information received from unknown person, on telephone, on 14 January, 2011, at about 18.15 hours, by the Narpoli Police Station, regarding criminal activities of the detenu and his associates, in public place, with weapons, such as chopper etc., which resulted in creating terror in the people, who started Page 4 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc running towards their houses and closed doors, has been noted.
Upon receipt of such information, the Beat Marshal No. 3 of Narpoli Police Station reached the spot and found that the shops and other activities in the area were completely closed and the villagers were running shelter-skelter. On seeing arrival of the police, the detenu and his associates fled away from the place.
Because of this incident, police had to deploy fix point bandobast, Beat Marshal, Mobile Patrolling in the area to restore normalcy.
5) In paragraph 5 of the grounds of detention, reference is made to in-camera statements of the two victims, who gave their statements only after they were taken into confidence and assured that their names and identity would be kept secret and they would not be called anywhere or before any open forum to depose about the detenu. It is stated that the in-camera statements were duly verified by Assistant Commissioner of Police, Bhiwandi (East) Division. The gist of the two in-camera statements is reproduced. The in-camera statements of witness 'A' was recorded on 14th November, 2011. That witness has Page 5 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc mentioned about the criminal activities of the detenu and the incident of 30th October, 2011. Similarly, the in-camera statement of witness 'B' was recorded on 25 th November, 2011. Even he has mentioned about the criminal activities of the detenu and his associates in the area and specific incident of 29 th October, 2011.
On the basis of this material, the Detaining Authority was of the opinion that issuance of order of detention, against the detenu was inevitable to prevent him from acting in similar prejudicial manner in future. It would be useful to reproduce Paragraph 6 and 7 of the grounds of detention, which read thus:
"6. From the instances quoted in para 4 and 5(a)(i) and
(ii) above for the grounds of detention, I am subjectively satisfied that you are a criminal character of violent and terrorizing nature,indulging in criminal activities only to establish your criminal awe in the area and thereby to procure the pecuniary benefits by way of committing the offences in the limits of Narpoli Police Station, Thane under Thane Police Commissionerate. Your such criminal acts are punishable under chapter XVI and XVII of Indian Penal Code. You are habitually involved in the criminal activities which adversely affect and also likely to affect adversely the maintenance of public order of the said locality and as such you are a 'dangerous person', as defined in section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-
offenders and Dangerous Persons and video Pirates Act, 1981 (Mah. Act No. LV of 1981) (Amendment 1996) (Mah. Ord. X of 2009, read with Article 22(5) of the Page 6 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc Constitution of India. The preventive actions taken against you under existing law of the land are found insufficient to curb your criminal activities. You have created your criminal awe and a reign of terror in the locality by way of indulging in criminal activities of violent and terrorizing nature. As a result of this you have made life of residents and small businessmen of the area under Narpoli Police Station, miserable. They are experiencing a sense of insecurity and carrying their daily vocation under constant shadow of fear, I am further convinced that you will again indulge in similar activities in future and that it would result in further disturbance to the maintenance of public order of the area. It is, therefore, absolutely necessary to detain you under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons and Video Pirates Act 1981 (Mah. Act No. LV of 1981) (Amendment 1996) (Mah. Ord. X of 2009, read with Article 22(5) of the Constitution of India."
7. I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order. I have also perused in camera statements recorded by the Police Inspector (Crime) Narpoli Police Station, duly verified by the Asstt. Commissioner of Police, Bhiwandi (East) Division and I am subjectively satisfied that the 'in-camera' statements recorded are true. I am aware that you are released on bail in criminal cases cited in para 4(a) above. However, in view of your tendency and inclination reflected in the offences committed by you, as stated hereinabove, I am further satisfied that you have no respect to the existing law of the land and that being a violent criminal character, you are likely to revert to similar activities purely for sake of pecuniary benefits and further to create your criminal awe, thereby causing further disturbance to the maintenance of public order in above mentioned area of Narpoli Police Station, Thane under Thane Police Commissionerate. It is therefore, necessary to detain you under the provisions of Maharashtra Prevention of Dangerous Activities of Page 7 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc Slumlords,Bootleggers, Drug-offenders and Dangerous Persons and Video Pirates Act 1981 (Mah. Act No. LV of 1981) (Amendment 1996) (Mah. Ord. X of 2009), read with Article 22(5) of the Constitution of India, to prevent you from acting in similar prejudicial manner, in future.
The Marathi version of these Paragraph reads thus:
"6- ifjPNsn & 4 vkf.k 5¼v½¼1½ o ¼2½ o:u LFkkuc/nrsckcr ek>s vkRefu"B lek/kku >kys vkgs dh] rqEgh fgald] ?kkrd izo`Rrhps xqUgsxkj ble vLkwu vkf.k lnj jfjljke/;s ng'kr LFkkihr dj.;kdjhrk xqUgsxkj d`R; djhr vkgkr vkf.k ukjiksyh iks-LVs- P;k gnnhe/;s Bk.ks iksyhl vk;qDrky; ;kaP;k fu;a=.kk[kkyh xqUgs d:u dkgh Qk;nk feGfo.;kdjhrk dk;Zjr vkgkr- rqeps lnj xqUgsxkjh d`R; Hkkjrh; naM fo/kku lafgrk izdj.k & 16 vkf.k izdj.k & 17 vUo;s f'k{kk ik= vkgs- rqEgh xqUgsxkjh d`R;
dj.;kP;k lo;hps o vusd xqUg;kr lgHkkxh vlwu] vkiY;keqGs lnj ifjljkrhy lkoZtfud lqO;oLFkk /kksD;kr ;srs o ;s.;kph 'kD;rk vlrs- R;keqGs lnj ifjljke/;s lwO;oLFkk] 'kkarrke/;s rhoz ifj.kke gksrkr- Eg.kwu rqEgh dye 2¼c&1½ egkjk"V >ksiMiVVh xwaM] gkrHkVVhvhokys] vkS"k/khnzO;fo"k;d xwUgsxkj vkf.k /kksdknk;d O;Drh vkf.k n`dJkO; dykd`rhaps foukijokuk izn'kZu dj.kkjk O;Drh ¼OghMhvks ik;jsVl½ ;kaps fo?kkrd d`R;kauk vkGk ? kky.ksckcrlkBh vf/kfu;e 1981 ¼egkjk"V vf/kfu;e dk;nk dzekad 55 lu 1981½¼lq/kkjhr vf/kfu;e 1996½¼egkjk"V 2009 ph vkWMZj 10½ o Hkkjrh; jkT;?kVuk daMhdk 22¼5½ e/khy rjrqnh varxZr LFkkuc/n dj.ks vko';d vkgs-
7- ek>s leksj Bso.;kr vkysY;k dkxni=kps eh dkGthiwoZd voyksdu dsys vkgs o R;k vk/kkjs ek>s vls vkRefu"B lek/kku >kys vkgs dh] rqEgh lkoZtfud lqO;oLFksl ck/kk fuekZ.k gksbZy v';kizdkjps d`R; djhr vkgkr- rlsp iks- fujh- ukjiksyh iks-LVs- Bk.ks ;kauh ?ksrysyY;k lk{khnkjkaps xqIr tckc lgk- iks- vk- fHkoaMh iwoZ foHkkx ;kauh iMrkG.kh dsyh vlwu] lnjps xqIr tckc [kjs vlY;kph ek>h [kk=h >kyh vkgs o ek>k R;kaP;koj fo'okl vkgs- eyk ekfgr vkgs dh] vkrk rqEgh ojhy ifjPNsn dz- 4¼v½ Page 8 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc e/khy QkStnkjh xqUg;kae/;s tkehukoj eqDr vkgkr- rjh ns[khy rqeph xwUgsxkjh o`Rrh o xqUgk dj.;kdMs rwepk dy ;ko:u ek>s vls vkRefU"B lek/kku >kys vkgs dh] rwEgkyk vfLrRokr vl.kk&;k dk;|kps dqBY;kgh izdkjps vk/kkj jkghysys ukgh vkf.k rqeP;k Qk;|kdjhrk rqEgh frp d`rh o xqUgsxkjh Lo:ikph d`R;s iqUgk dj.kkj vkf.k R;ko:u vki.k vkiyh ng'kr R;k ifjljke/;s fuekZ.k dj.kkj R;kewGs ukjiksyh iks- LVs- ;k foHkkxkr Bk.ks iksyhl vk;qDrky; ;kaP;k gnnhr ojhy ueqn ifjljkr lkoZtfud lqO;oLFkk dksyeM.;kph 'kD;rk vkgs- R;keqGs rqEgkyk LFkkuc/n dj.ks vko';d vlwu] egkjk"V >ksiMiVVh xwaM] gkrHkVVhvhokys] vkS"k/khnzO;fo"k;d xwUgsxkj vkf.k /kksdknk;d O;Drh vkf.k n`dJkO; dykd`rhaps foukijokuk izn'kZu dj.kkjk O;Drh ¼OghMhvks ik;jsVl½ ;kaps fo?kkrd d`R;kauk vkGk ?kky.ksckcrlkBh vf/kfu;e 1981 ¼egkjk"V vf/kfu;e dk;nk dzekad 55 lu 1981½¼lq/kkjhr vf/kfu;e 1996½ rqEgkyk R;kizdkjph d`rh Hkfo";kr dj.;kiklwu izfrca/n dj.;kdjhrk LFkkuc/n dj.;kr ;sr vkgs-"
6) The first ground argued before us is articulated in Paragraph 8(a) of the Writ Petition. It is stated that since the detenu has studied in Marathi medium, he understands only Marathi language. Therefore, he was furnished with the grounds of detention in Marathi language to enable him to make effective representation. However, there is variance in the Marathi version of the grounds of detention, served on him. In the English version of the grounds of detention, in Paragraph 1, it is specifically stated "copies of documents I relied upon and formed my subjective satisfaction", which is conspicuously absent in the Marathi version Page 9 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc of the grounds of detention served on him. That deprived him of making effective representation, resulting in abridgment of his fundamental rights guaranteed under Article 22(5) of the Constitution of India. We shall immediately advert to Paragraph 1 of the grounds of detention, served on the Petitioner, along with the Marathi version thereof. The same reads thus:
"1. In pursuance of section 08 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons and Video Pirates Act 1981 (Mah. Act No. LV of 1981) (Amendment 1996) (Mah. Ord. X of 2009, read with Article 22(5) of the Constitution of India, I hereby communicate to you the grounds as mentioned in paragraph No. 4 below on which the detention order has been made by me on this day against you under sub-
section (2) of section 3 of the said Act. The copies of documents placed before me on which I relied upon and formed my subjective satisfaction, are enclosed, except the names and identifying particulars of witnesses/victims in connection with the grounds as mentioned in para No. 5(a)(i) and (ii) below, which are not furnished to you in the public interest for which I claim privilege."
The Marathi version of this Paragraph reads thus:
"egkjk"V >ksiMiVVh xqaM] gkrHkVVhokys] vkS"k/khnzO;fo"k;d xqUgsxkj vkf.k /kksdknk;d O;Drh ;kaP;k fo?kkrd d`R;kauk vkGk ?kky.ksckcrpk vf/kfu;e 1981 ¼egkjk"Vkpk lu 1981 pk dk;nk dye ,y-Ogh-½ ¼lq/kkj.kk 1996½ ¼egkjk"Vkps lu 2009 ps vkns'k dz- ,Dl½ lg Hkkjrh; ?kVusps dye 22¼5½ ;k lg lnj dk;|kps dye 3 ps iksV dye ¼2½ vUo;s vkiY;k fo:/n vkt Page 10 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc jksth ;knh dsysY;k LFkkuc/nrk vkns'kkph dkj.ks eh ;kOnkjs [kkyhy ifjPNsn 4 e/;s ueqn dsysY;k dkxni=kP;k izrh lkscr tksMY;k vkgsr- ek= R;krwu [kkyhy ifjPNsn 5¼v½¼1½vkf.k ¼2½ e/;s ueqn dsysY;k dkj.kkaph laca/khr lkf{knkj@cGhaph vksGk[k iVowu nsow 'kd.kkjk ri'khy oxGyk vkgs o lkoZtfud fgrkP;k n`"Vhus gk ri'khy vki.kkal ns.;kr ;sr ukgh o R;kckcr eh ek>k fo'ks"k vf/kdkj okijhr vkgs-"
7) The argument of the Petitioner though attractive at the first blush, deserves to be stated to be rejected. In the first place, on a bare reading of Marathi version, it is noticed that the free translation has been done and it conveys the meaning of paragraph 1 of the grounds of detention in English. The contents of the two sentences in English version have been translated in one sentence in Marathi version (first sentence). The second sentence in Marathi version deals with the later part of the second sentence in English version. What needs to be borne in mind is that Paragraph 1 of the grounds of detention is only in the form of recital. The factum of subjective satisfaction of the Detaining Authority has been noted in Paragraph 6 and 7 of the grounds of detention, which have been reproduced hitherto. In the first sentence of paragraph 6 of the grounds of detention, both in Page 11 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc English version and Marathi version, it is mentioned that the copies of the stated documents were placed before the Detaining Authority and on which he relied to form his subjective satisfaction. That part of the grounds of detention was crucial and some loose and free translation done in regard to paragraph 1 of the grounds of detention, which is only in the form of recital, does not take the matter any further for the Petitioner. It is not the case of the Petitioner that the factum of subjective satisfaction, recorded by the Detaining Authority has not been mentioned in the grounds of detention in Marathi version at all. We are of the considered opinion that the grounds of detention must be read as a whole, to ascertain the factum of subjective satisfaction recorded by the Detaining Authority, in the grounds of detention. Suffice it to observe that omission to literally translate the stated words in Paragraph 1 of the Marathi version, does not and cannot be the basis to complain that the detenu's right to make effective representation has been abridged. We are of the opinion that the Marathi version of the grounds of detention is proper and cannot be said to be incomplete much less misleading. Similarly, the Page 12 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc variance pointed out is not vital - so as to vitiate the continued detention of the detenu on the ground that it has affected his right to make an effective representation.
8) That takes us to the second ground urged before us.
That is articulated in Paragraph 8(c) of the Writ Petition. The grievance is that the document at Page 105 of the grounds of detention, in the compilation, purported to be Marathi translation of the Bail Application, dated 23rd October, 2011, is not the true translation of the Bail Application with Bail Order thereon as in English version, found at Page 104 of the compilation, which is duly certified as true Marathi translation. The Marathi translation does not reproduce the Bail Order below the Bail Application at all. According to the Petitioner, the Bail Order, being vital and relevant document, even though relied upon and considered by the Detaining Authority, is not communicated to the detenu, which has violated the inviolable fundamental rights of the detenu under Article 22(5) of the Constitution of India. Thus, due to non furnishing of the Bail Order in the language understood by the Page 13 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc detenu, he has been deprived of his right to make effective representation.
9) Even this argument, though attractive at the first blush, will have to be stated to be rejected. It is true that the order passed below the Bail Application, dated 23 rd October, 2011 has not been reproduced and/or translated in the Marathi version, as in the English version of the same document, which reads thus:
"Accused No. 1 & 2 released on bail after executing P.R. Bond of Rs. 15000 & surety of 15000 of like amount from each accused."
10) Indeed, for the purpose of recording the subjective satisfaction, the Detaining Authority has reckoned the fact that the detenu has been released on Bail by the Judicial Magistrate, First Class, 2nd Court, Bhiwandi, in connection with C.R.No. I-176/2011, vide order dated 23 rd October, 2011. The Detaining Authority having relied upon the said order, it is no doubt vital.
11) In the present case, however, the Detaining Authority has reproduced the order in Paragraph 4(vi) of the grounds of Page 14 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc detention in its entirety, both in English as well as in Marathi, in the following words:
"You had made an application before Judicial Magistrate, 1st Class, 2nd Court, Bhiwandi for your release on bail on 23/10/11. The Hon'ble Court pleased to pass an order that you be released on P. R. Bond of Rs. 15,000/- with one surety of like amount on the same day."
The Marathi version of the grounds of detention of this part of the Paragraph reads thus :-
"vki.k vkiY;k lqVdslkBh ek- U;k;ky;kr fn- 23@10@11 jksth tkehu vtZ dsyk- ek- U;k;ky;kus n;k d:u vkiyk tkehu vtZ eatwj d:u vki.kkal 15]000@& :- oS;Drhd tkreqpyD;klg rso<;kp jDdespk ,d tkehunkj nsowu R;kp fno'kh lksM.;kpk vkns'k dsyk"
As a result, non supply of that order below the Bail Application (in Marathi), cannot be considered as fatal. For, it does not impair the right of the detenu to make effective representation. Inasmuch as, it is not the case of the Petitioner that the Bail order is a speaking order and that, reasons part thereof have not been communicated. As the Bail Order, reproduced in the English version is the complete order, that having been incorporated in the grounds of detention, it would Page 15 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc not impair the rights of the detenu to make effective representation at all. It is not a case of detenu being mislead in any manner. A priori, the challenge to the detention order, on the ground under consideration, cannot be countenanced. The argument of variance in the documents furnished to the detenu, pressed into service on this count, therefore, deserves to be stated to be rejected, for the same reasons.
12) The next ground of challenge is that the two in-camera statements were not verified by the Assistant Commissioner of Police, as per the requirement of law, except saying "riklys"[tapasle], which is too vague. In that, nothing is disclosed as to what was verified and more particularly, it does not certify the truthfulness of the incident, identity of the witnesses and fear expressed by the witnesses etc. Indisputably, from the copies of the in-camera statements, furnished to the Petitioner, it is found that at the end of the statement of each witness, the Assistant Commissioner of Police, Bhiwandi (East) Division has endorsed "riklys" [tapasle], just above his signature and designation. In the Page 16 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc reply affidavit, the Detaining Authority has stated that he has perused the in-camera statements recorded by the P. I., which were duly verified by the Assistant Commissioner of Police, Bhiwandi. Thus, the fact that the statements have been verified by the Assistant Commissioner of Police, has been contemporaneously noted in the document itself, as is asserted by the Detaining Authority, on affidavit filed before this Court.
Notably, the fact that the in-camera statements were duly verified by the Assistant Commissioner of Police has been noted also in the grounds of detention. That can be discerned from Paragraph 5 of the grounds of detention. The relevant part of Paragraph reads thus:
"Their statements are recorded 'incamera' by Police Inspector (Crime) of Narpoli Police Station. The 'incamera' statements were duly verified by Asst. Commissioner of Police of Bhiwandi (East) Division."
The Marathi version of the above part of the paragraph reads thus:-
"ts tckc iks- fujh- ukjiksyh iks-LVs- ;kauh xksiuh; i/nrhus can :ee/;s ¼bu dWesjk½ fygwu ?ksrys vkgsr- lnj tckc ek- lgk-iks-vk-fHkoaMh iwoZ foHkkx] fHkoaMh ;kauh iMrkG.kh dsyh vkgs-"Page 17 of 33 ::: Downloaded on - 09/06/2013 18:41:54 :::
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13) To reassure ourselves, we called upon the Public
Prosecutor to produce the original record, which would indicate that the Assistant Commissioner of Police had in fact verified the in-camera statements. In response, the communication sent by the Assistant Commissioner of Police, dated 15 th December, 2011, to the Commissioner of Police, which is found in the original record, was brought to our notice. The relevant portion of the said communication reads thus:
"fu- LFkkuc/n ble ;kps ,e-ih-Mh-,- izLrkokrhy xqIr lk{khnkj vkEgh riklys vkgsr- rs tckcr ueqn vlysyh gfdxr cjkscj o [kjh vlY;kph lkaxrkr- lnj xqIr lk{khnkj ;kaps tckc can y[kksV;kr ;k lkscr vkgsr-"
The true translation of the above would read:
"We have examined the in-camera witnesses pertaining to the M.P.D.A. Act detention proposal of the detenu. They claimed that the contents of their statements are correct and truthful. The said in-camera statements are kept in sealed cover herewith".
14) Thus, contemporaneous record belies the grievance of the Petitioner that the in-camera statements have not been Page 18 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc verified, nor the truthfulness of the incident or identity of witnesses and fear expressed by them has been certified. In the facts of this case, therefore, the challenge to the detention order, on the ground under consideration cannot succeed.
15) The next ground of challenge is that the detention order suffers from non application of mind. Inasmuch as in Paragraph 1 of the grounds of detention, it appears that the subjective satisfaction for issuance of detention order, against the detenu, was on the basis of grounds mentioned in Paragraph 4 thereof. However, in the opening part of Paragraph 6 of the grounds of detention, it is stated that in view of the material referred to in Paragraphs 4 and 5(a)(i) and (ii), the Detaining Authority was subjectively satisfied that the detenu had a criminal character of violent and terrorising nature.
16) This argument is based on complete misreading of the grounds of detention. As has been noted earlier, the grounds of detention must be read as a whole. Hairsplitting of the grounds of Page 19 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc detention, in this manner, cannot be countenanced. In the first place, the contents of Paragraph 1 of the grounds of detention, is only in the nature of recitals. Further, the grounds of detention, if read as a whole, would indicate that subjective satisfaction was reached by the Detaining Authority, on the basis of grounds and incidents, not only referred to in Paragraph 4, but also in paragraph 5(a)(i)and (ii) thereof. The Detaining Authority, in paragraph 1, however, made it clear that the copies of the documents, which were considered by it, for arriving at subjective satisfaction, were being forwarded to the detenu, except the names and identity of the witnesses, victims, in connection with the grounds mentioned in Paragraph 5(a)(i) and (ii). We fail to understand, as to how this would mean that the subjective satisfaction was reached by the Detaining Authority only on the grounds mentioned in Paragraph 4, as was argued.
17) The next ground of challenge, once again, is that the detention order suffers from non application of mind. It is founded on only one incident, registered as C. R. The detention in Page 20 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc exercise of powers under the MPDA Act, is permissible only when the person is a habitual offender. With only one case, registered against the detenu, the provisions of M.P.D.A. Act cannot be invoked.
18) This argument is completely ill-advised. On reading the grounds of detention, it is amply clear that the Detaining Authority arrived at subjective satisfaction about the necessity to detain the detenu to prevent him from acting in prejudicial manner in future not on the basis of one incident, which was registered as C.R. The Detaining Authority has taken over all view of the matter, including the fact that after grant of Bail on 23 rd October, 2011, the detenu and his associates continued with their criminal activities unabated. The in-camera statements of the two witnesses, who were unwilling to complain openly, against the detenu and his associates, have mentioned about the specific two incidents, after 23rd October, 2011 i.e., dated 29th October, 2011 and 30th October, 2011. It is also mentioned in the grounds of detention that even in the past, on two occasions, the detenu was Page 21 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc required to be detained under MPDA Act and the detention order was confirmed by the Advisory Board, against him. Several criminal cases have been registered against the detenu since 1995, as can be discerned from the Paragraph 2 of the grounds for detention. Suffice it to observe that it is not a case of issuance of detention order on the basis of solitary criminal case registered against the detenu, as is contended. Whereas, the Detaining Authority was subjectively satisfied that the detenu was of criminal character of violent and terrorising nature, indulged in criminal activities only to establish his criminal awe in the area and thereby to procure the pecuniary benefits by way of committing the offences in the limits of Narpoli Police Station, Thane and was habitual offender involved in criminal activities, which adversely affected and also likely to adversely affect the maintenance of public order of the said locality and that the detenu was a dangerous person. The detaining Authority was also subjectively satisfied that the preventive action under existing law of the land was found to be insufficient to curb the detenu's criminal activities, who has made the life of the residents and Page 22 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc small businessmen of the area under Narpoli Police Station, miserable. Accordingly, there is no merits even in this ground under consideration.
19) We shall now deal with the judgments pressed into service by the Counsel for the Petitioner. Reliance is first placed on decision of this Court in the case of Shashikala Krishnarao Rane vs. Union of India 1987 CRI. L. J. 1787. In this case, the core issue was that the order of detention did not convey to the detenu the purpose of his detention under Section 3(1)(iii) of COFEPOSA Act. The order of detention omitted the crucial word "engaging". Further, the order of detention conveyed different meaning than the word which was meant to be conveyed under the provisions of 3(1)(iii) of the Act. On these facts, the Court examined the controversy. The omission in the detention order was in respect of a jurisdictional fact, unlike the grievance in the present Petition. In this case, we have already analysed the relevant portion of the grounds of detention, as appearing in English version as well as Marathi version and found that the Page 23 of 33 ::: Downloaded on - 09/06/2013 18:41:54 ::: Jvs. WP.1215.2012.doc Marathi version, furnished to the detenu conveys the same meaning and is not at variance as such. Moreover, the grounds of detention must be read as a whole. The principle expounded in this decision, therefore, will be of no avail to the Petitioner.
20) The next judgment relied by the Petitioner is of the Division Bench of this Court in the case of Nazma Moiddin Shaikh vs. R. H. Mendonca, 2001 CRI. L. J. 860. In that case, the variance in the grounds of detention furnished to the detenu in Hindi version to that of the original grounds of detention in English version was vital one. In the English version, the words were "public order" and in the Hindi version, these words were mentioned as "dk;nk vkSj lqO;oLFkk" "dkuqu vkSj lqO;oLFkk". That meant law and order situation. Again this was a case of misleading translation of jurisdictional fact for invoking preventive detention action and variance of this nature was found to be fatal.
Accordingly, the observation in the said decision will have to be understood in the context of the facts of that case.
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21) The next judgment is of the Apex Court in the case of
Powanammal vs. State of Tamil Nadu, 1999 CRI. L. J. 831. The only ground raised in the said matter was that the right to make effective representation of the detenu was affected because the order remanding the detenu to Judicial Custody, relied upon by the Detaining Authority, in the grounds of detention, was passed in English, but the Tamil version of that document was not supplied to the detenu, even though she specifically demanded for the same, as she did not know the English at all. In the Present case, no grievance is made that, the detenu demanded the Marathi translation of the Bail Order and it was not provided. Further, we have dealt with this aspect at length and have opined that non supply of the Bail Order below the Bail Application in Marathi version was not fatal, for the reasons already recorded above.
Accordingly, the observations in this decision will be of no avail to the Petitioner.
22) The next decision pressed into service is of the Division Bench of this Court in the case of Salma Rehman Khan vs. M. N. Page 25 of 33 ::: Downloaded on - 09/06/2013 18:41:55 ::: Jvs. WP.1215.2012.doc Singh, 2001 ALL MR (Cri) 2063. In that case, the grievance was that the copy of the Hindi version of the grounds of detention, furnished to the detenu was not a true and faithful copy of the original grounds of detention, which are in English. The Hindi translation supplied to the detenu would have confused him to exercise his right of making effective representation. In Hindi version, in Paragraph 7 of the grounds of detention, the detenu has been informed that he had a right to make representation to the State Government unlike in the English version, he was informed that he had a right to make effective representation against the detention order to the Detaining Authority. Thus, the observation in the context of that grievance will be of no avail to the fact situation of the present case. Moreover, we have already found as of fact that there is no variance in the Marathi translation, much-less which would impinge upon the right of detenu to make effective representation.
23) That takes us to the next decision of the Apex Court, relied upon by the Petitioner, in the case of Anil Vats vs. Union of India 1991 CRI. L. J. 605. In that case, the Court was called upon Page 26 of 33 ::: Downloaded on - 09/06/2013 18:41:55 ::: Jvs. WP.1215.2012.doc to consider, whether it is open to the Court to examine, what prejudice has been caused to the Petitioner, on account of denial of opportunity to the detenu to take assistance of a friend, before the Advisory Board. The Court restated the legal position that, matter relating to preventive detention is a strict proceeding and warrant full compliance of the requirements of law. In the present case, there is no grievance about the procedural non compliance at all. The grievance is about purported variance in the Marathi version of the grounds of detention, which contention has already been negatived for the reasons mentioned earlier.
24) That takes us to the next decision relied upon by the Counsel for the Petitioner, which is unreported decision of the Division Bench of this Court, in the case of Nadim Ahmed Sayyed vs. M. N. Singh, in Criminal Writ Petition No. 1177 of 2001, decided on 15th October, 2001. In that case, the grievance was that the detenu was on Bail at the time of passing of the detention order, for which reason it was essential for the Sponsoring Authority to keep copy of the Bail Application and the Bail Order, Page 27 of 33 ::: Downloaded on - 09/06/2013 18:41:55 ::: Jvs. WP.1215.2012.doc before the Detaining Authority, as also to furnish the same to the detenu in the language of his request. The Court accepted the challenge and opined that there is no distinction between the non placing of the Bail Application and the Bail Order and placing of illegible order or incomplete copies. This judgment has been cited in the context of non supply of the Bail Order below the Bail Application in Marathi version. We have already considered the same and have rejected the argument considering the fact situation of the present case.
25) We would now turn to the other decision of the Division Bench of this Court in case of Subhangi Tukaram Sawant vs. R. H. Mendonca, 2001 CRI. L. J. 4873. In that case, the Petitioner was not supplied with the complete in-camera statement, particularly the verification made by the Assistant Commissioner of Police. Suffice it to observe that in the present case, noting regarding verification, done by the Assistant Commissioner of Police is found below the respective in-camera statements supplied to the detenu is recorded. Therefore, this decision will be of no avail to the Petitioner.
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26) The next decision relied upon by the Petitioner is again
the decision of the Division Bench of this Court, in the case of Vijay Ramchandra Angre vs. S. M. Shangari, 2004 ALL MR (Cri) 1974. Even in this case, the grievance of the detenu was that the in-camera statements supplied to the detenu did not contain the verification made by the concerned Assistant Commissioner of Police. The Court accepted the challenge on the facts of that case.
For the reasons already recorded, while dealing with the decision in Subhangi Sawant's case (supra), for the same reason, the decision under consideration will be of no avail to the Petitioner.
27) That takes us to the unreported judgment of the Division Bench of this Court, in the case of Kashinath Chandrakant Ganeshkar vs. A. N. Roy, in Criminal Writ Petition No. 2046/2006, decided on 30th March, 2007. Even in that case, the grievance was that the in-camera statements had not been verified by the Divisional Assistant Commissioner of Police, as was seen from the copies supplied to the detenu. The Court therefore Page 29 of 33 ::: Downloaded on - 09/06/2013 18:41:55 ::: Jvs. WP.1215.2012.doc followed the principle stated in Subhangi Sawant's case (supra).
We have already distinguished the said decision, considering the fact situation of the present case.
28) The last decision pressed into service by the Petitioner is the decision of Division Bench of this Court in the case of Charanjitsingh Digwa vs. State of Maharashtra, 2005(4) Mh.L.J.996. Reliance was placed on paragraph 15 of the said decision, which deals with the similar grievance that the in-
camera statements do not contain endorsement of verification of the statements. The decisions already adverted to earlier were relied upon to answer that controversy. For the reasons already indicated above, the said decision will have no application to the fact situation of the present case.
29) We shall now deal with the judgments relied upon by the Learned A. P. P. Reliance was placed on the case of Jafar Ahmed @ Jafar Fantoosh Mohamad Razzak Khan vs. M. N. Singh, 2002 CRI. L. J. 1723. The grievance of the Petitioner, in that case Page 30 of 33 ::: Downloaded on - 09/06/2013 18:41:55 ::: Jvs. WP.1215.2012.doc was that the Hindi translation, furnished to the detenu was at variance and it confused the detenu in exercising his right to make effective representation. The court dealt with that grievance in Paragraph 5 of the Judgment, which reads thus:
"5. We now come to Mr. Tripathi's submission regarding the third infirmity in translation. We regret that we do not find any merit in it.
It is well settled that a translation need not be a verbatim of the original. So long as the infirmity in translation would not vitiate the detenu's fundamental right of making an effective representation.
In the instant case, in our view, in the Hindi translation of para 1 of the grounds of detention the meaning has been conveyed to the detenu. He has been conveyed that the detention order passed against him has been issued in pursuance of grounds mentioned in para 5 below which I(the Detaining Authority) communicate to you.
It is common knowledge that the material relevant for the detenu to exercise his fundamental right of making a representation is the grounds of detention and the documents on which the grounds are based.
In the case it is not the grievance of Mr. Tripathi that there is any infirmity or error in the Hindi translation of the grounds of detention or in the Hindi translation of the documents on which the grounds are founded.
For these reasons we reject Mr. Tripathi's contention in respect of the aforesaid infirmities."
(emphasis supplied)
30) The next decision relied upon by the Learned A. P. P. is in the case of Shadeb Gulam Mohd. Dhamankar vs. M. N. Singh, Page 31 of 33 ::: Downloaded on - 09/06/2013 18:41:55 ::: Jvs. WP.1215.2012.doc 2002 ALL MR (Cri) 487. Even in this case, the grievance of the Petitioner was that the Hindi translation of the detention order, supplied to the detenu was not true and faithful translation. The variance in the documents was with regard to right of the detenu to make representation to the Detaining Authority. In Hindi translation, it was mentioned that the detenu had right to make representation to the State Government. The Court negatived that challenge on the facts of that case, as by the time, the order of detention and the grounds of detention were served on the detenu, the State government had already approved the detention order, in which case the question of making representation to the Detaining Authority did not arise. This decision is of no utility to the case on hand.
31) The Learned A. P. P. then relied upon the decision in the case of Izaz Rashid Bbaig @ Ajju vs. R. H. Mendonca, 1999 ALL MR (Cri) 1568. This decision was in the context of the stand taken in the reply affidavit of the Respondents that the detenu was conversant and had working knowledge of English, having studied Page 32 of 33 ::: Downloaded on - 09/06/2013 18:41:55 ::: Jvs. WP.1215.2012.doc up to 10th Standard in Marathi. It is not necessary for us to dilate on this stand of the Respondent having negatived the arguments of the Petitioner for the reasons recorded earlier. We, however, place on record the argument of Counsel for the Petitioner that the observation made in Paragraph 10 of this Judgment is in the teeth of the decision of the Apex Court in Powanammal's case (supra). The Apex Court has taken the view that it is no business of the Court to ascertain whether any prejudice has been caused to the detenu or not. It is, however, not necessary for us to deal with this argument in the backdrop of the fact situation of the present case. We are, therefore, not expressing any opinion with regard to the correctness or otherwise of this contention.
32) Taking over all view of the matter, therefore, the Petition is devoid of merits. Hence, the same is dismissed. Rule is discharged.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.) Page 33 of 33 ::: Downloaded on - 09/06/2013 18:41:55 :::