Bombay High Court
Ramchandra Alias Ramyadada Gopinath ... vs R.H. Mendonca And Ors. on 12 January, 2000
Equivalent citations: 2000CRILJ2114
Author: Vishnu Sahai
Bench: Vishnu Sahai, P.V. Kakade
JUDGMENT Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of The Constitution of India, the petitioner-detenu impugns the detention order dated 17-5-1999 passed by the First Respondent Mr. R.H. Mendonca, Commissioner of Police, Brihan Mumbai, detaining him 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. LV of 1981) (Amendment 1996).
2. The detention order along with the grounds of detention also dated 17-5-1999, was served on the petitioner-detenu on 17-5-1999 itself. True copies of the detention order and the grounds of detention are annexed as Annexures A and B respectively to the petition.
3. We have heard learned counsel for the parties. Although in the writ petition, the learned counsel for the petitioner has pleaded four grounds for assailing the impugned detention order numbered as Grounds Nos. 7(A) to 7(D), but since in our view, this petition deserves to be allowed on ground No. 7(A), we are neither adverting to the other grounds on which the impugned detention order is challenged nor to the prejudicial activities of the petitioner contained in the grounds of detention.
4. Ground No. 7(A) in short is that in the Marathi translation of the grounds of detention supplied to the petitioner-detenu, the petitioner-detenu has not been apprised that he had a right to make a representation to the State Government. It has been averred in the said ground that as a consequence of this, the petitioner-detenu lost his opportunity of making a representation to the State Government at the earliest opportunity.
To fortify his submission, learned counsel for the petitioner-detenu placed before us para 14 of the decision of the Supreme Court (Kamlesh Kumar Ishwardas Patel v. Union of India).
Para 14 reads thus :-
The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
(Emphasis supplied)
5. Mr. D.S. Mhaispurkar, learned counsel for the respondents urged that in the Marathi translation of the grounds of detention, in sum and substance it has been conveyed to the petitioner-detenu, that he could make a representation to the State Government, at the earliest opportunity. In his contention, the English translation of what has been conveyed to the petitioner-detenu in Marathi is as under :-
You are hereby informed that you will be given first opportunity to make representation (to give your separate say) against the order of detention to the State Government. If you wish to present such a representation, you may forward the same through the Jail authorities addressed to the Secretary, Government of Maharashtra.
6. We do not find any merit in Mr. Mhaispurkar's submission. The ratio of the Apex Court laid down in (supra) is unambiguous to the effect that the authority making an order of detention should inform the detenu that he has a right of making a representation to such authorities which are enjoined in law to consider it. In our view, in the Marathi translation furnished to the detenu, it has not been mentioned that he had a right to make a representation. We make no bones in observing that there is a world of difference between the expression 'a right to make a representation' and 'the first opportunity to make a representation'.
7. Since in our view, in the Marathi translation of the grounds of detention, it was not conveyed to the petitioner-detenu that he had a right to make a representation, the detenu was deprived of his fundamental right of making a representation at the earliest opportunity; a right guaranteed to him by Article 22(5) of the Constitution of India.
8. In the result, this petition is allowed; the impugned detention order is quashed and set aside; the petitioner-detenu is directed to be released forthwith unless wanted in some other case, and the rule is made absolute.