Bombay High Court
Gulnawaz @ Shekhu Khan S/O. Ejaj Khan (In ... vs The State Of Maharashtra Thr. ... on 25 September, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik, M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.579 OF 2017
Gulnawaz @ Shekhu Khan s/o.
Ejaj Khan, Aged about 25 years,
r/o. Utthan Nagar, Plot No.107,
Near Gorewada Ring Road,
Police Station, Gittikhadan,
Nagpur (In Jail). .......... PETITIONER
// VERSUS //
1.The State of Maharashtra,
Through its Secretary,
Home Department Mantralaya,
Mumbai-32.
2.The Commissioner of Police,
Nagpur.
3.The Superintendent,
Central Prison, Akola. .......... RESPONDENTS
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____________________________________________________________
Mr.R.M.Daga, Advocate for the Petitioner.
Mr.S.S.Doifode, A.P.P. for the Respondents.
____________________________________________________________
CORAM : SMT. VASANTI A NAIK
AND
M.G.GIRATKAR, JJ.
DATE : 25.9.2017.
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J) :
1. Rule. Rule made returnable forthwith. The Writ Petition is heard finally at the stage of admission with the consent of the learned Counsel for the parties.
2. By this Criminal Writ Petition, the petitioner has challenged the order of the Detaining Authority-Commissioner of Police, Nagpur City, Nagpur, dated 8th May, 2017 detaining the petitioner under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirate Act, 1881. The petitioner has also challenged the order of the State Government dated 15th June, 2017 rejecting the representation of the petitioner and confirming the order of detention u/s.12 of the Act.
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3. The petitioner is allegedly engaged in criminal activities and is prosecuted for the offence punishable under Section 307 of the Penal Code and the allied offences. The said crime was registered against the petitioner in the Police Station, Sitabuldi on 14.11.2016. Another complaint was filed against the petitioner in Ambazari Police Station and a N.C Report was made in the said complaint bearing No.227 of 2017. On the basis of the two cases registered against the petitioner and the two in-camera statements of witnesses, recorded by the Detaining Authority, the order of detention was passed against the petitioner by the Commissioner of Police on 8.5.2017, u/s.3(2) of the Act. The petitioner made a representation against the said order to the State Government; however the same was rejected by the impugned order dated 15th June, 2017. The orders of the Detaining Authority and the State Government are challenged by the petitioner in the instant petition.
Mr.S.P.Dharmadhikari, the learned Senior Counsel for the petitioner submitted that the impugned orders are liable to be set aside as the material available before the Detaining Authority was not such, that would warrant the detention of the petitioner. It is submitted that the offences registered against the petitioner as also ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 4 wp579.17.odt the in-camera statements of witnesses A and B would not show that the petitioner is a 'dangerous' person. It is stated that the Hindi translation of the order of detention and the grounds mentioned therein are not true copies of the original. It is submitted that certain matter which did not find place in the grounds in the original detention order finds place in the Hindi translation that was supplied to the petitioner. It is submitted that certain grounds that found place in the impugned order did not find place in the Hindi translation. It is stated that some particular grounds, referred to in the order of detention point out that the Hindi translation thereof is not the correct translation of the grounds in the impugned order. It is submitted that there was undue delay in passing the impugned order as the statement of witness B was recorded on 10.4.2017 and the impugned order of detention was passed on 8.5.2017. It is submitted that the period between the recording of the in-camera statement of witness B and passing of the impugned order is more than 25 days and the said delay would vitiate the order of the Detaining Authority. The learned Counsel relied on the Judgment reported in 2008 (2) Mh.L.J. (Cri) 219 , Anil @ Antya s/o. Shriram Jadhav vs. State of Maharashtra and Others to substantiate his submission that in a given case the delay would be fatal. It is ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 5 wp579.17.odt submitted that if the translation would not be a correct translation of the grounds, the right of the petitioner to make an effective representation, under Article 22(5) of the Constitution of India would be affected. Reliance is also placed on the Judgment reported in 2011 (5) SCC 244 , Rekha .vs. State of Tamil Nadu, through Secretary to Government and another to submit that if the ordinary law of land is sufficient to deal with the situation, the Detaining Authority cannot take action for detaining the detenue. It is submitted that para 10 of the grounds in the impugned order of detention records that the ordinary laws of preventive action have failed to deter the petitioner from indulging in dangerous criminal activities, but the said statement does not find place in the Hindi translation. It is submitted that, in the circumstances of the case, the impugned order is liable to be quashed and set aside.
Mr.S.S.Doifode, the learned Additional Public Prosecutor appearing for the respondents submitted that the material on record, specially the two crimes that were registered against the petitioner and the two in-camera statements of witnesses recorded by the Detaining Authority, would show that the acts of the petitioner would be a threat to the public order. It is submitted that it would ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 6 wp579.17.odt not be for a Court to go behind the subjective satisfaction recorded by the Detaining Authority while considering the correctness or otherwise of the order of the Detaining Authority. It is submitted that there is hardly any delay since the date of recording of the in-camera statement of witness B is 10.4.2017 and the date of the impugned order is 8.5.2017. It is submitted that there is no delay whatsoever, if the aforesaid two dates are considered. It is submitted that the detention order is based on the two crimes registered against the petitioner and the in-camera statements of witness A and witness B. It is stated that the petitioner has a criminal background and his activities would show that he is a dangerous person as defined under the Act. It is submitted that the petitioner moves along with his associates in the areas that are mentioned in the impugned order in the name of Sheru Gang-Maya Gang and it is apparent from the in- camera statements that the petitioner and his associates were armed with mauser, swords, rods etc when they pelted stones on the complainant's hotel and broke down the front glass of the hotel. It is submitted that there is enough material on record for recording the subjective satisfaction that the acts of the petitioner are a threat to the public order. The learned Additional Public Prosecutor relied on the Judgments reported in 2014 ALL MR (Cri) 53, Santosh s/o.
::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 7 wp579.17.odt Bhagwan Patil .vs. The State of Maharashtra and Others and 2012 ALL MR (Cri) 2433, Dharmendra Kamlakar Tangadi .vs. Commissioner of Police, Thane and Others to submit that minor errors in the translated copies would not vitiate the order of detention. The learned Additional Public Prosecutor relied on the Judgment reported in 2017(3) SCC 133, Shri Anna Durai @ Dilli Ganpati Devendra .vs. A.N.Roy, Commissioner of Police and Others to substantiate his submission that if the detention order is founded on one composite ground then the detention order could be vitiated if such ground is found fault with; however, if the detention order is based on more than one grounds, independent of each other then the detention order will still survive if one of the grounds is found to be non-existent or legally unsustainable. Reliance is also placed on the Judgment reported in 1988 (1) SCC 296, Smt. K. Aruna Kumari vs. Government of Andhra Pradesh and Others, for canvassing that it would not be for the Court examining the validity of the detention order to consider whether the material available with the Detaining Authority was sufficient to detain the detenue.
Though several grounds are raised on behalf of the petitioner for challenging the impugned order of detention, we are ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 8 wp579.17.odt inclined to consider the ground in regard to the failure to supply the correct translation of the grounds of detention. It is not disputed that the order of detention is based on the two crimes registered against the petitioner and the in-camera statements of two witnesses viz. witness A and witness B. It is brought to the notice of this Court by referring to the order of detention, the grounds mentioned therein and the Hindi translation of the said grounds that certain facts in Ground Nos. 9.1, 9.1.1 and 9.2.1 in the Hindi translation are not present in the impugned order. In Hindi translation of ground 9.1 it is stated " you always extort money from the people and threaten and attack them". In ground 9.1.1 of the Hindi translation, it is mentioned " your work is going on well and you are earning a lot. I want Rs.10,000/- immediately." On this the witness stated "I do not have money." on which it is mentioned that "whosoever comes in between, would be cut to pieces". It is further mentioned in Hindi translation of ground 9.1.1 that whosoever reports against me to the police would be killed. Similarly, in Hindi translation of 9.2.1 it is mentioned "In second week of February, 2017 when I (witness) was going from Gokulpeth Bazar to Coffee house chowk at about 8 p.m., I (witness) was told " I would require protection money (hafta) of Rs.2,000/-. It is necessary to note that the aforesaid facts mentioned ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 9 wp579.17.odt in Hindi translation of ground nos.9.1, 9.1.1 and 9.2.1 are not present in the impugned order. It cannot be gauged as to why so many facts are present in the Hindi translation, though they are not mentioned in the grounds in the impugned order.
Apart from the fact that certain acts and utterances that were allegedly made by the witnesses whose in-camera statements were recorded do not find place in the grounds, in the impugned order of the Detaining Authority, it is noteable that certain acts and utterances that find place in ground nos. 9.1.1, 9.2.1 and 9.2.3 as also the findings in para no.10, do not find place in the Hindi translation of the grounds, in the order of the Detaining Authority. By comparing the copies of the in-camera statements of witnesses A and B with the grounds in the impugned order of the Detaining Authority that refer to the said witnesses and to the Hindi translation of the said grounds, it appears that the facts involved in the case have jumbled in the mind of the Detaining Authority. Though witness A has not mentioned in his in-camera statement that, in the second week of the previous month the petitioner had called the witness near the house and assaulted the witness by fist blows and kicks and threatened the witness that "'k s[ k q HkkbZ d s f[kykQ tk s Hkh ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 10 wp579.17.odt ck sy rk g S ok s mldk gky fn; so kj tSl s djrk g S "(Whosoever speaks against Shekhu bhai he would be given the same treatment, as is given to Diyewar). Here we would mention for the sake of convenience that this submission is referrable to the statement made by witness A that 3-4 years earlier the petitioner had committed the murder of Hemant Diyewar, the President of Bhartiya Janta Yuva Morcha, Nagpur by shooting him with fire arms. However, on a reading of the in-camera statement of witness A, we find that witness A has not mentioned in his statement that "'ks[kq HkkbZ ds f[kykQ tks Hkh cksyrk gS oks mldk gky fn;sokj tSls djrk gS ". The impugned order refers to witness A in para 9.1.1, which refers to the statement made by witness "'ks[kq HkkbZ ds f[kykQ tks Hkh cksyrk gS oks mldk gky fn;sokj tSls djrk gS ". Considering certain threats and utterances to be made by the petitioner, as stated by witness A, though witness A had not stated so, would clearly show that the Detaining Authority has not applied its mind to the material on record. Similarly though witness B had not stated in his in-camera statement that the petitioner and his associates were moving in luxury cars at night in Ambazari area and the gang of the petitioners is known by the name of Sheku Gang, we are afraid such statement is not made by witness B at all. Also, in ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 11 wp579.17.odt Ground No.9.2.3 of the order of the Detaining Authority, it is mentioned that witness B had stated that in the second week of previous month the petitioner had called the witness near his house and had stated that "'ks[kq HkkbZ ds f[kykQ tks Hkh cksyrk gS oks mldk gky fn;sokj tSls djrk gS". It is further mentioned in Ground 9.2.3 by referring to the statements made by witness B that on the said threat being given by the petitioner, witness B did not lodge any complaint in the Police Station against the petitioner out of fear. Though none of the witnesses i.e. witness A and witness B had stated that the petitioner had threatened them that "'ks[kq HkkbZ ds f[kykQ tks Hkh cksyrk gS oks mldk gky fn;sokj tSls djrk gS", it is wrongfully mentioned in ground nos. 9.1.1 and 9.2.3 that the witnesses had made the statement that the petitioner had threatened them that they would be also murdered like Diyewar. When the witnesses had not stated so, referring to the said threats in the statements of witnesses A and B in Ground Nos. 9.1.1 and Ground Nos. 9.2.3 would show that the Detaining Authority had not correctly perused and appreciated the material on record. What did not find place in the statements of the witnesses is referred to in the statements of the witnesses in the grounds of detention, in the impugned order of the Detaining Authority. It is ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 12 wp579.17.odt further necessary to note that though witness 'A' had stated that the petitioner and his associates always moved in Luxury cars at night in Ambazari area and the gang was identified in the name of Shekhu Gang, the Detaining Authority has observed in the Ground Nos. 9.2.2 that the said statement was made by witness B. There is non- application of mind in appreciating the material before recording the satisfaction that it was necessary to detain the petitioner as his acts were detrimental to the public order. It is worthwhile to note that though in the impugned order of detention, specially paragraph 10 thereof, it is mentioned that the ordinary Laws of preventive action had failed to deter the petitioner from indulging in dangerous criminal activities, the said important observation/finding does not find place in the Hindi translation of the grounds of detention that were supplied to the petitioner. In our view, the non-application of mind by the Detaining Authority to the material on record and the failure to supply the true and correct translation of the grounds in the order of detention would vitiate the order. It is necessary for the Detaining Authority to supply true and correct translation of the grounds of detention to the detenue. In the instant case, the grounds of detention are wrongly translated. Certain grounds that did not find place in the order of detention were mentioned in the grounds, ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 13 wp579.17.odt in the Hindi translation and certain important grounds on the basis of which the impugned order of detention was passed were totally absent in the Hindi translation. The right of the petitioner to make an effective representation was surely affected in view of the wrongful translation of the grounds of detention. This Court has held in the Judgment reported in 1999(3) Mh.L.J. 261, Soud Ahmed Jubber Khan .vs. O.P.Bali Commissioner of Police and Ors. that when completely different meaning is conveyed to the detenue by the wrongful translation of the grounds of detention, the right of the detenue to make an effective representation against the order of detention, is affected. Similar view is expressed by this Court in the unreported Judgment dated 3rd September, 2013 in Criminal Writ Petition No.52 of 2013. This Court has held in the said unreported Judgment that when the translation of the grounds of detention is not the true and correct translation of the grounds, the right of the detenue to make an effective representation under Article 22(5) of the Constitution of India would be affected. The Judgments reported in 2014 ALL MR (Cri) 53 (supra) and 2012 ALL MR (Cri) 2433 (supra) and relied on by the learned Additional Public Prosecutor cannot be made applicable to the facts of this case. In the aforesaid Judgments, there were some typographical errors in the translated ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 14 wp579.17.odt copies that were supplied to the detenue and this Court had therefore held in the circumstances involved in the said cases that the errors in the translation were not material, so as to raise an issue in that regard. The Judgment reported in 2017 (3) SCC 133 (supra) and relied by the learned Additional Public Prosecutor would also not be applicable to the case in hand. It is held in the said unreported Judgment that where the detention order is based on more than one ground that are independent of each other, the detention order would survive even if one of the grounds is non-existent or legally unsustainable. In the instant case, the detention order is based on the registration of two matters against the petitioner and the in-camera statements of two witnesses viz. A and B. In this case, we find that there is jumbling in the mind of the Detaining Authority about the material that is referable to the allegations in the crime and the in- camera statements of the witnesses. What is alleged in the crime that is registered against the petitioner is considered to have been stated by witnesses A and B, though we find that the witnesses A and B have not made the statements that are referred to, as their statements. Though the witnesses had not stated they did not lodge the complaint against the petitioner as he had threatened them that he would kill them like Diyewar if they utter anything against him, ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 15 wp579.17.odt the Detaining Authority has wrongfully observed so, in the grounds of detention. The order of the Detaining Authority suffers from non- application of mind and the same is liable to be set aside. Also, since we find that the true and correct translation of the grounds of detention, on which the detention order is based were not correctly translated and supplied to the petitioner, his right to make an effective representation under Article 22(5) of the Constitution of India was seriously affected.
Hence, for the reasons aforesaid, the Writ Petition is allowed. The impugned orders are quashed and set aside. Rule is made absolute in the aforesaid terms.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 ::: 16 wp579.17.odt ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:30:47 :::