Bombay High Court
Shekhar Shantaram Pawaskar vs V.K. Saraf And Others on 14 June, 1989
Equivalent citations: 1990CRILJ138
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT Ashok Agarwal, J.
1. This petition seeks to impugn the detention order dated the 2nd of January, 1989 passed by the Commissioner of Police, Greater Bombay, under Section 3 of the National Security Act, 1980. This order of detention has been challenged by Shri Thakare, the learned Counsel appearing on behalf of the petitioner, on various grounds. However, it is sufficient to mention only one of the grounds since the same goes to the root of the matter entitling the release of the petitioner from detention. According to Shri Thakare, the petitioners had not been furnished with the grounds of detention and the full and accurate material in support thereof. This had materially affected his right to make an effective representation. He pointed out that amongst the documents furnished to the detenu was a Medical Certificate dated the 26th of October, 1988 in respect of the injuries sustained by one Sidram M. Guram. The original of this certificate is in English. The petitioner was also furnished with a translation of the said certificate in Marathi. If one peruses both these ducuments, it is apparent that the Marathi translation is a wholly inaccurate and incomplete translation of the Medical Certificate, the original of which is in English. The injury described in the English Medical Certificate is "CLW 6 cm x 1/2 cm over scalp, left side skin deep." The same injury in the Marathi translation is described as an injury 6" x 1/2" on the left side knee." Further, the following portion which is found in the English Certificate is totally absent in the Marathi translation :
"The above injuries were sustained by him/her as per his/her statement accidentally, during the performance of his/her legitimate duties and are/were not due to his/her own negligence as disobedience of orders. He is recommended leave for, period of .......
His injuries were such as to prevent him from attending to his normal duties."
In view of the aforesaid description it will have to be held that the detenu was confused as to which was the true Medical Certificate, whether the English or the Marathi translation thereof. This had obviously affected adversely his right to make an effective representation, a right which is guaranteed under Article 22(5) of the Constitution of India. In view of the infringement of this fundamental right of the petitioner, it will have to be held that the continued detention of the petitioner is not legal and stands vitiated.
2. Shri Kachare, the learned Public Prosecutor, however, submitted that the aforesaid Medical Certificate related to only one of the grounds of detention. Even if the said ground of detention is found to be invalid, yet the order of detention can be justified on other grounds and be maintained in view of the provisions of Section 5A of the COFEPOSA Act.
3. In our view, there is no merit in the aforesaid contention. When, there is an infringement of a constitutional mandate contained in Article 22(5) of the Constitution of India, the provisions of Section 5A cannot be resorted to. It has been held by this Court in the case of Chandra Shekar Ojha v. A. K. Karnik, 1982 Cri LJ 1642, that if the documents which form the basis of the order of detention are not served on the detenu along with the grounds of detention, in the eye of law there will be no service of grounds of detention and that circumstance would vitiate his detention and make it void ab initio. Non-supply of relevant documents will render the detention itself void ab initio. Therefore, once it is held that the supply of wholly blank or illegibie documents amounts to non-supply of copies of the relevant documents which are relied upon for passing the detention order, then there is no other alternative but to hold that the detention of the detenu is void ab initio. If the detention is void ab initio, then the question of sustaining such a void order under Section 5A cannot arise. Section 5A will come into operation after the communication of grounds and following the constitutional safeguards. Section 5A with have no application if the grounds themselves are not communicated. Otherwise the constitutional safeguard guaranteed under Article 22(5) will have no meaning. From the various decisions of the Supreme Court, it is clear that non-supply of the grounds of detention or relevant documents must have an effect of invalidating the detention itself. In that Case the detention cannot be said to be according to the procedure prescribed by law. If the detention itself is not according to the processor prescribed by law, then the question of supporting the void order of detention by taking recourse to Section 5A will not arise.
4. In view of the aforesaid, it will have to he held that the entire detention order stands vitiated and the provisions of Section 5A cannot cure the same.
5. In the result, the petition succeeds. The impugned order of detention dated the 2nd of January, 1959 is quashed. The petitioner is directed to be set at liberty forthwith unless required in any other case. Rule is made absolute.
6. Rule made absolute.