Bombay High Court
Imran @ Raju Munna Qureshi vs Shri A.N. Roy, Commissioner Of Police, ... on 23 November, 2000
Equivalent citations: 2001BOMCR(CRI)~, (2001)1BOMLR441, 2001CRILJ1062
Author: A. M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A. M. Khanwilkar, J.
1. The petitioner has taken exception to the order passed by Shri A. N. Roy. Commissioner of Police, Navi Mumbai dated 196th May, 2000 in exercise of powers under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
2. Although several grounds were raised in the writ petition, we have confined the discussion only to ground (A) raised in the writ petition which reads thus :
"(A) The petitioner says and submits that the detenue is a Maharashtrian and understands, Marathi language only. The detenu has studied upto Std. V in Marathi medium. The petitioner says and submits that the Detaining Authority, has furnished the order of detention, grounds of detention and other documents of the compilation in English language along with their. Marathi translation. The petitioner says and submits that Marathi translation of the grounds of detention furnished to the detenu is not a true and correct translation or English grounds of detention, inasmuch as in para No. 9 of the grounds of detention the very valuable and constitutional right of the detenue has not been apprised in the translated verse, which amounts to non-appraisal of the right of the detenu to make representation to the State Government. The petitioner submit that furnishing wrong and incomplete translation amounts to non-communication of grounds of detention thus violating the first fact of Art. 22(5) of the Constitution of India,. The petitioner says and submits that as a result of furnishing wrong translation, and on apprising the right of detenu to make representation, the detenu could not make any effective representation, thereby lost the earliest opportunity to make representation, thus both the facts of Art. 22(5) of the Constitution is violated. The continued detention is illegal and bad in law. The order of detention is illegal and unconsistutional, ought to be quashed and set aside."
3. The sum and substance of the said ground is that there is variance with regard to the crucial aspect that the petitioner has a right to make representation to the State Government in the version between the English language and the Marathi version, which is the translation of the English documents, furnished to the petitioner. The argument is two fold. In the first place it is contended that because of the said variance the petitioner's right to make effective representation under Article 22(5) has been impaired. The second limb of argument is that the Marathi version furnished to the petitioner does not indicate that the petitioner has a right to make representation to the State Government, which flows from Section 8 of the Act. It is, therefore, contended that since the petitioner has not been apprised of his right to make representation to the State Government, the same directly impinges upon the fundamental right guaranteed to the petitioner within the purport of Articles 21 and 22(5) of the Constitution of India.
4. So far as the first shade of argument is concerned, we have already considered this matter extensively in our judgment dated 22nd November. 2000 in Writ Petition No. 1253 of 2000. In the said judgment, we have already taken a view that because of the variance on such vital aspect, the detenu is misled and therefore his right to make effective representation under Article 22(5) of the Constitution of India is impaired thereby rendering the detention order as well as continued detention bad and illegal. Accordingly, we would prefer to place reliance on the said decision while accepting the challenge of the petitioner in that behalf.
5. Even on the second count as contended by the petitioner, that the detention order is vitiated since the petitioner has not been apprised of the fact that he has a right to make representation to the State Govern-
merit, in our view, is valid and appropriate, for in that case the detention would not be in accordance with the procedure established by law. There can be no quarrel on the proposition that the right to make representation to the State Government flows from Section 8(1) of the said Act. The same reads thus :
"8(1). When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government".
6. In our view, it is possible to contend that non-communication of the said right to the detenu, of making representation to the State Government, would impair his right under Article 22(5). We are really not called upon to address ourselves to this aspect of the matter and we propose not to express any opinion on this issue. Nonetheless, since it cannot be disputed that the detenu has a indefeasible right to make representation to the State Government, by virtue of Section 8 of the Act, it therefore follows that it is obligatory on the Detaining Authority to apprise the detenu of existence of such right. Non-communication of the said right to the detenu would surely be frowned upon, for the detenu would be deprived of his personal liberty not in accordance with the procedure established by law, which undoubtedly would attract Article 21 of the Constitution of India. To buttress this proposition reliance can be placed on the decision of the Apex Court, in the case of A. K. Gopalan v. State of Madras,. The Apex Court has held that Article 21 is applicable even to the preventive detention if there is infraction of any procedure established by law. Section 8 of the Act, in our view, undoubtedly prescribes procedure or that it indicates "procedure established by law' in the matter of detention under the said Act. It would be useful to reproduce the observations of Das J., as he then was, which read thus:
"The language of Article 21 is quite general and is wide enough to give its limited protection to personal liberty against all forms of detention. It protects a person against preventive detention by the executive without the sanction of a law made by the Legislature. It prevents the Legislature from taking away a person's personal liberty except in accordance with procedure established by law, although such law is to be by itself."
We, therefore, have no hesitation in observing that non-appraisal of the said right to make representation to the State Government, as in the present case, by the Detaining Authority, to the detenu, would clearly impinge upon the petitioner's fundamental right guaranteed under Article 21 and as such the detention order cannot stand the test of judicial scrutiny. Counsel for the petitioner, in support of the contention that fundamental right of the detenu is infracted on account of noncommunication of the fact to the detenu by the Detaining Authority that the detenu has a right to make representation to the State Government, has placed reliance on the decision of this Court in the case of Ramchandra alias Ramyadada Gopinath Pawar v. R. H. Mendonca and others,. Even for this reason, the present writ petition should succeed.
7. Accordingly, the impugned detention order dated 19th May, 2000 passed against the detenu Imran @ Raju Munna Qureshi by Shri A. N. Roy, Commissioner of Police, Navi Mumbai under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers. Drug Offenders and Dangerous Persons Act, 1981 is quashed and set aside. The Writ Petition is allowed.
8. The respondents are directed to release the detenu Imran @ Raju Munna Qurashi forthwith if not required in any other case.
9. Rule is made absolute in the aforesaid terms.