Bombay High Court
Sayyed Hussain Ali Asiq Ali vs Mr. R.H. Mendonca, Commissioner Of ... on 13 January, 2000
Equivalent citations: 2000(5)BOMCR636, 2000BOMCR(CRI)~, (2000)1BOMLR474
Author: Vishnu Sahai
Bench: Vishnu Sahai, P.V. Kakade
ORDER Vishnu Sahai, J.
1. Through this petition preferred under Article 226 of the Constitution of India the petitioner who styles himself as the brother of the detenu Sayed Rafiq Ali Hasmat Ali Sayed has impugned the detention order dated 11th February, 1999 passed by the 1st respondent Mr. R. H. Mendonca, Commissioner of Police, Brihan Mumbai, detaining the detenu 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), (also referred to as "the MPDA Act").
The detention order along with the grounds of detention also dated 11th February 1999 was served on the detenu on 22-2-1999
2. We have heard learned Counsel for the parties. Although in this writ petition a large number of grounds have been pleaded by Mr. U. N. Tripathi, learned Counsel for the petitioner but, since in our view, this petition deserves to be allowed on a solitary ground, viz., 7(A) of the petition. We are neither adverting to the other grounds of challenge contained in the petition nor to the prejudicial activities of the detenu enumerated in the grounds of detention.
3. Ground 7-A. in short is that since the Hindi translation of some of the documents furnished to the detenu is not a faithful translation of the original, which is in English, the detenu's right of making a representation under Article 22(5) of the Constitution of India has been impaired.
Mr. Tripathi invited our attention to para 6 of the grounds of detention wherein the detaining authority has recorded his subjective satisfaction in terms that although the detenu is in custody but there was likelihood of his being released and reverting to similar activites prejudicial to the maintenance of public order and hence it was imperative to preventively detain him under the MPDA Act.
Mr. Tripathi pointed out that the Hindi translation of para 6 of the grounds of detention, which is at pages 21 to 27 of the petition, shows that the detaining authority has recorded his subjective satisfaction in terms that although the detenu was in custody but there was likelihood of his being released and reverting to similar activites prejudicial to law and order and hence it was imperative to preventively detain him.
4. We find merit in Mr. Tripathi's contention that on account of variance between para 6 of the grounds of detention and para 6 of the grounds of detention translated in Hindi; the variance being that in the former it has been alleged that the detenu was likely to revert to similar activities, prejudicial to public order and in the latter it has been alleged that he was likely to revert to similar activities prejudicial to law and order, the detenu could have been mislead in exercising his right of making an effective representation under Article 22(5) of the Constitution of India. It is a trite that breach of public order and law and order are vitally different concepts in the eyes of law.
5. We make no bones in observing that on a perusal of para 6 of the Hindi translation of the grounds of detention the detenu may have even been advised that he need not make any representation because violation of law and order would not warrant his detention under the MPDA Act.
Be that as it may, since in our view, on account of the incorrect Hindi translation the detenu's right of making an effective representation under Article 22(5) of the Constitution of India has been infracted, we have no option but to allow this petition.
6. We accordingly allow this petition; quash the impugned detention order; direct that the detenu Sayed Rafiq Ali Hasmat AH Sayed be released forthwith unless wanted in some other case; and make the rule absolute.
7. Petition allowed.