Bombay High Court
Shri Surenderakumar Ganeshilal ... vs Shri Satish Sahney, Commissioner Of ... on 16 April, 1996
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. Heard Mr. U.N. Tripathi for the petitioner, Mr. S.R. Borulkar for respondent Nos. 1 and 2 and Mr. H.V. Mehta for respondent No. 3.
By means of this writ petition preferred under Article 226 of the Constitution of India, the petitioner (detenu) impugns the detention order dated 27th September, 1995 passed by respondent No. 1 Commissioner of Police, Greater Bombay (now Mumbai) detaining him under the National Security Act.
2. The prejudicial activities of the detenu warranting the issuance of the detention order are contained in the grounds of detention, a copy of which has been annexed as Annexure B to the petition. Since in our view reference to the prejudicial activities is not necessary for the disposal of this petition we are not recapitulating them.
3. The short point on which this petition should succeed has been pleaded by the petitioner's Counsel in grounds 6(C) and 6(D) of the petition. The ground is that the petitioner belongs to Uttar Pradesh and knew Hindi and consequently a Hindi Translation of the documents, including the grounds of detention, was furnished to him. That translation is not faithful and true inasmuch as whereas in the original grounds of detention which are in English, in paragraph 8 it has been mentioned that the petitioner is being informed that he had a right to make representation against the detention order to the Central and State Governments at the earliest opportunity but in the Hindi translation what has been mentioned is that he is being informed that he had a right to be represented through a representative before the Central and the State Governments and make a grievance against the detention order at the earliest opportunity. It is urged that on account of this infirmity in the Hindi translation of the grounds of detention the petitioner's fundamental right, to make a representation to the Central and State Governments at the earliest opportunity, which flows from Article 22(5) of The Constitution of India, has been violated rendering his continued detention unsustainable in law.
4. Ground No. 6(C) and 6(D) of the petition have been replied to in the return filed by Mr. R.D. Tyagi the present Commissioner of Police, Mumbai (Mr. Satish Sahney, the then Commissioner of Police having been transferred) in paragraphs 12 and 13. It has been averred in paragraph 12 that it is wrong to assert that the Hindi translation was not to the effect that the petitioner had a right to make a representation to the Central Government and the State Government at the earliest opportunity. In the same paragraph it has been averred that the petitioner knew some English and since in the original grounds of detention which were in English, it was specifically mentioned that he could make a representation at the earliest opportunity to the Central and State Governments he can make no grievance on that score. In the same paragraph it has also been mentioned that after all the petitioner through an Advocate of his did make a representation to the Central Government on 8-12-1995 and hence availed of the aforesaid right. In paragraph 13 it has been stated that English was one of the subjects which the petitioner had in his High School and therefore, he could make out from the grounds of detention that he had a right to make a representation to the Central and State Governments at the earliest opportunity. In sum and substance what has been stated is that there has been no infringement of the petitioner's fundamental right to make a representation to the Central and the State Governments at the earliest opportunity.
5. Article 22(5) of the Constitution of India reads thus :
"22(5)When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
A perusal of the aforesaid provision would show that the detenu has two distinct rights :
a) the right to be communicated, as soon as may be, the grounds of detention, by the authority making the detention order ;
and
b) the right of making the representation at the earliest opportunity against the detention order.
The breach of any of the aforesaid twin-rights of the detenu would vitiate the detention order as being violative of Article 22(5) of the Constitution of India.
6. In the instant case after perusing the original grounds of detention which are in English and their Hindi translation we find that in the latter it has not been mentioned that the petitioner had a right to make a representation at the earliest opportunity but instead what has been stated therein is that he had a right to be representated through a representative before the Central and State Government to make a grievance against the detention order at the earliest opportunity.
7. It is a trite that the translation furnished to the detenu should be a faithful translation of the original. If that is not so it is not in consonance with requirements of Article 22(5) of the Constitution of India and on that ground alone the detention order would be liable to be quashed. The circumstance that the detenu knew a little English would not exonerate the respondents of their obligation to supply a faithful translation. Once a translation is furnished to the detenu naturally he will presume the same to be faithful and hence even assuming that he knows some English he may not persue the grounds of detention which are in English and instead be guided by the translated grounds. In this connection it would be appropriate to refer to the observations made in paragraph 17 of a Division Bench decision of our Court Smt. Shashikala K. Rane v. Union of India & others, wherein Their Lordship have observed that :
"If the Detaining Authority thought it expedient to furnish the translations even though the detenu knew English, then the detenu was entitled to take advantage of the translations and to point out that the translation which he relied upon did not convey a faithful meaning of the original grounds or the declaration under section 9(1) of the Act and were such as to make it impossible for the detenu to communicate and on that ground also the order ought to be struck down."
8. On the facts of this case there can be no denying the fact that on account of incorrect translation of the grounds of detention, the petitioner was denied of his fundamental right under Article 22(5) of the Constitution of India of making a representation at the earliest opportunity.
9. We are not impressed by the averment in the return of Mr. R.D. Tyagi to the effect that the petitioner's Counsel did make a representation to the Central Government on 8-12-1995. As said earlier, the right to make a representation given to the detenu by Article 22(5) of the Constitution of India is at the earliest opportunity. The representation made on 8-12-1995 by the petitioner's Counsel can by no standards be described as a representation made at the earliest opportunity. It is not disputed by the learned Counsel for the respondents that the petitioner was served with the translation of the documents in Hindi, including the grounds of detention, on 2-10-1995.
In the instant case since the translation of the grounds of detention furnished to the petitioner was not a faithful one and he could not make a representation at the earliest opportunity both his twin right contained in Article 22(5) of the Constitution of India, referred to in paragraph 5 herein, have been violated and this has rendered his continued detention unsustainable in law.
10. In the result, this petition succeeds. The impugned detention order dated 27-9-1995 passed by respondent No. 1 is quashed and it is directed that the petitioner be set at liberty forthwith unless wanted in some other case. Rule is made absolute.