Bombay High Court
Yogesh Nandu Pujari vs Commissioner Of Police on 6 September, 2012
Author: A.M.Khanwilkar
Bench: A.M.Khanwilkar, R.Y.Ganoo
WP.1747.2012.judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL WRIT PETITION NO. 1747 OF 2012
Yogesh Nandu Pujari
Age 25 years,
residing at New Shivaji Nagar,
Indira Nagar, Near Kalwa Railway
Station, Kalwa (East), Thane :- Petitioner
versus
1) Commissioner of Police, Thane
2) The State of Maharashtra
3) The Superintendent,
Nashik Road Central Prison,
Nashik :- Respondents
Mr. U. N. Tripathi, for the Petitioner.
Ms. M. H. Mhatre, APP, for Respondent State.
CORAM:- A.M.KHANWILKAR &
R.Y.GANOO,JJ.
DATED:- SEPTEMBER 06, 2012
ORAL JUDGMENT :- (Per A.M.Khanwilkar, J.)
Heard Counsel for the parties.
2) This Petition, under Article 226 of the Constitution of India, takes exception to the preventive detention order passed by Page 1 of 8 J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 ::: WP.1747.2012.judgment.doc the Commissioner of Police, Thane, dated 25 th January, 2012, in exercise of powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons and Video Pirates Act, 1981.
3) The Petitioner, after being taken into custody in connection with the impugned detention order, was served with grounds of detention dated 25th January, 2012, along with the copies of the documents relied upon by the Detaining Authority in forming his subjective satisfaction.
4) Broadly, two contentions have been raised before us.
We would deal with the first contention. According to the Petitioner, the Detaining Authority has relied upon the injury certificates issued by C. S. M. Hospital, Kalwa, T. M. C., Thane, dated 6th August, 2011, describing the injuries caused to the victim, in respect of offence, in which, the Petitioner is named as accused. The argument proceeds that the original documents are in English version. The Petitioner is not conversant with English nor has any workable knowledge of English. For that reason, the Page 2 of 8 J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 ::: WP.1747.2012.judgment.doc Detaining Authority furnished Marathi translation of the relevant documents along with the grounds of detention served on him. In the translation done in Marathi, however, there is material variance regarding the description of the injuries as well as the sizes of the injuries. Some of the collumns, which have been left blank in the English version, have been filled with some details in the Marathi version. In substance, there is marked discrepancy and variance between the two versions of the same documents i. e.
in English and Marathi respectively. This, according to the Petitioner, has affected his right to make effective representation.
5) This argument has been countered by the Respondents.
Learned APP, in the first place, fairly accepts that there is variance between the documents in English and the Marathi version. She, however, submits that the said injury certificates are not the relied upon documents nor can be said to be referred to documents, even though the same form part of the compilation of documents served on the detenu, along with the grounds of detention. According to the Learned APP, the subjective satisfaction has been formed on the basis of the factum of incidents and the nature of offence referred Page 3 of 8 J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 ::: WP.1747.2012.judgment.doc to in the FIR and the charge-sheet filed in that regard. It is not on the basis of the injury certificates, which are at Exhibit - 'F' collectively at pages 39 to 42 of the Writ Petition paper book. On this basis, it is argued that since the injury certificates in question are not the relied upon documents, the same cannot be considered as vital documents and even if there is variance noticed in the said documents, it is of no avail to the Petitioner, as the grievance regarding the Petitioner having been deprived in making effective representation at the earliest opportunity, cannot be pressed into service.
6) For considering these rival stand, we may usefully refer to the grounds of detention. In the opening part of the grounds of detention, it is unambiguously noted that the copies of the documents placed before the Detaining Authority were relied upon documents to form the subjective satisfaction and the said documents are enclosed along with the grounds of detention served on the detenu. To examine the argument further, we may think it apposite to reproduce the last sentence appearing in Paragraph 1 of the grounds of detention. The same reads thus:
Page 4 of 8J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 ::: WP.1747.2012.judgment.doc ".......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."
(emphasis supplied)
7) Relying on the latter part of the above quoted sentence in the grounds of detention, it was argued by the Learned APP that the earlier part of the said sentence refers to the circumstances and material relied upon by the Detaining Authority in the context of Paragraph 5(a)(i)(ii) and not Paragraph 4 of the grounds of detention. The injury certificates pertain to the circumstances and material found in Paragraph 4 of the grounds of detention. Hence, the same cannot be treated as documents relied upon and therefore, not vital documents. This argument, in our opinion, is complete distorted reading of the sentence reproduced above. The plain meaning of the sentence, in the words of the Detaining Authority himself, makes it amply clear that the supplied copies of the documents to the detenu, were relied upon to form his subjective satisfaction. There is nothing in the grounds of detention, even to remotely suggest the Detaining Authority had selectively relied upon some of the documents included in the Page 5 of 8 J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 ::: WP.1747.2012.judgment.doc compilation of documents accompanied by the Index thereof along with the grounds of detention, while forming his subjective satisfaction, much less excluded consideration of the medical certificates in question. In our opinion, therefore, this argument, advanced by the Learned APP, will have to be rejected.
8) A priori, it would necessarily follow that the injury certificates Exhibit - 'F' collectively, which formed part of the compilation of documents accompanying the grounds of detention served on the detenu, were relied upon by the Detaining Authority to form his subjective satisfaction. The concomitant of this finding is that said documents are vital documents and will have to be considered as "ground" within the expansive meaning of expression "grounds of detention". This legal position, in our opinion, is no more res integra. The Apex Court in the case of Khudiram Das vs. the State of West Bengal and Ors, (1975) 2 SCC 81 had occasion to answer the same. The Apex Court has expounded the meaning of expression "grounds". It is held that it means all the basic facts and "materials which have been taken into account" by the Detaining Authority in making the order of Page 6 of 8 J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 ::: WP.1747.2012.judgment.doc detention and on which, therefore, the order of detention is based.
This statement of law is enunciated on the basis of the reported cases and Authorities referred to in Paragraph 6 of the reported decision.
9) In our opinion, therefore, the Petitioner is justified in contending that his right to make effective representation has been abridged within the meaning of Article 22(5) of the Constitution of India, as has been expounded by the Apex Court in catena of decisions. We do not intend to multiply the Authorities cited before us by both the sides, except to mention that in the fact situation of the present case, we have no hesitation in taking the view that the injury certificates, in the words of the Detaining Authority himself, were relied upon documents for forming subjective satisfaction that it is imperative to detain the Petitioner to prevent him from indulging in prejudicial activities in future.
Accordingly, this Petition ought to succeed.
10) As aforesaid, the Petitioner has raised other point articulated in ground 'h' of the Petition. However, we do not intend to dilate on the said ground, in view of the favourable Page 7 of 8 J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 ::: WP.1747.2012.judgment.doc finding recorded on the first point urged by the Petitioner.
Accordingly, we hold that continued detention of the Petitioner is illegal and vitiated. It is hit by the vice of Article 22(5) of the Constitution of India, of denial of right to make effective representation at the earliest opportunity.
11) We, accordingly, pass the following operative order, copy whereof be made available to the Petitioner, forthwith, as the transcription of this judgment is likely to take some time. The operative order reads thus:
ORDER The Respondents are directed to release the Petitioner Yogesh Nandu Pujari, forthwith, who has been detained in connection with the impugned preventive detention order bearing No. TC/PD/MPDA/03/2012, dated 25th January, 2012, unless required in connection with some other criminal case.
Rule made absolute accordingly.
(R.Y.GANOO,J.) (A.M.KHANWILKAR,J.) Page 8 of 8 J.V.Salunke,PA ::: Downloaded on - 09/06/2013 19:04:38 :::