Mrs. Hamida Salim Khan vs Commissioner Of Police on 22 August, 2013

[Cites 9, Cited by 1]

Bombay High Court

Mrs. Hamida Salim Khan vs Commissioner Of Police on 22 August, 2013

1. This Writ Petition, under Article 226 of the Constitution of India, challenges a detention order dated 12th March 2013 No. D.O.No.04/PCB/DP/Zone-IV/2013 issued by the Respondent No. 1, the Commissioner of Police under the Maharashtra Prevention of 1 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 ("the Act"). The Petitioner is the mother of the Detenu, one Samad Salim Khan.

2. The Petition states that apart from the order of detention itself, the Detenu was also served the copy of the grounds of detention on the basis of which the detaining authority arrived at his subjective satisfaction for issuing the detention order. In addition, the Detenu was also served with a compilation of the documents relied on by the Detaining Authority.

3. The basis of the detention order is that the detenu is a "violent, dangerous criminal" persistently given to terrorising the residents of different localities with dangerous weapons, and accused of offences of assault, robbery, extortion and criminal intermedation. He is also said to be involved in unauthorised constructions and in coercing residents to vacate their homes. The detention order recites the various criminal cases, including chapter proceedings under the Criminal Procedure Code, that have been periodically instituted against the Detenu and that in some of these the Detenu applied for and was granted bail. The Detention Order takes note of at least two in-camera witness statements. On a consideration of the material of him, the Detaining Authority came to the conclusion that the Detenu's activities were, therefore, "prejudicial to the maintenance of public order" in the specified localities in particular and in Greater Mumbai in general.

2 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC This is of some significance to one of the submissions advanced before us, to which we will presently turn.

4. The Petitioner claims not to be conversant with any language other than Hindi. On his representation, therefore, he was furnished with a translation of the Detention Order, the grounds of the Detention and the documents relied on by the Detaining Authority.

5. Before us, Mr. Tripathi, learned counsel for the Petitioner, advanced two principal submissions. The first of these was, in essence, that while the Detention Order speaks of the Detenu's action being prejudicial to "public order", in the Hindi translation the words used are "public peace" (lkoZtuhd 'kkarrk). According to Mr. Tripathi, the terms "public order" and "public peace" are not synonymous or interchangeable in law. They convey very different things. We understood Mr. Tripathi to suggest that "public peace" is a term that has a much narrower canvas and may speak to localised, individual, disparate incidents, while "public order" is of much wider import and connotes a disruption of law and order generally. An altercation or a brawl between two individuals, for example, may constitute a breach of public peace, and yet not disturb "public order". A person who habitually foments trouble in localities, engages in various criminal activities, terrorises people, threatens and intimidates them, could, on the other hand, be said to be disturbing "public order". Mr. Tripathi submits that the distinction, though seemingly nice, is very real, and 3 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC therefore the inaccuracy in the translation has impeded his client's right to make an effective representation.

6. We are unable to agree with Mr. Tripathi. In our view, Mrs. Pai, learned APP, is right when she says that there is, in law, no such distinction, and the law on this matter is now well settled. There is, as Mrs. Pai rightly points out, a very long line of decisions of this Court and of Supreme Court starting with Brijbhushan V/s State of Delhi1and Romesh Thappar V/s. State of Madras2 in which the distinction between public order, public tranquillity and public peace has been all but obliterated. Madhu Limaye V/s. Sub Divisional Magistrate3 held that the expression "in the interest of public order" (though in the context of Constitution), embraces not only those acts which disturbs the security of the State but also certain acts that disturb public tranquillity or a breach of peace. This position remains undisturbed.

7. It is not, in our view, necessary to multiply authorities on this issue. It is sufficient to note that the distinction that Mr. Tripathi seeks to draw is not one accepted in law. In Commissioner of Police and others V/s. C. Anita,4 the Supreme Court held that "public order" is synonymous with public peace or tranquillity: "'it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State'". We are not here concerned with the 1 AIR 1950 SC 129 2 AIR 1950 SC 124 3 1973 SCC 746 4 (2004) 7 SCC 467 4 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC intrepretation of other terms such as "law and order" and "security of the State" (which, the decision in C. Anita holds, form three concentric circles along with "public order"). Mr. Tripathi only invites us to distinguish "public order" from "public peace". Now if the former is said to equate with "public tranquility", then we are quite unable to make any such distinction, for "public tranquility" and "public peace" are the same thing. K. A. Saravana Babu V/s. State of Tamil Nadu5 contains a comprehensive review of the judicial interpretations of the two terms upto that time and also finds that the distinction between the two terms is a distinction without a difference.

A Division Bench of our own High Court in Kamalakar Shankar Patil V/s. B. Akashi6 in terms held that public order is synonymous with public peace, safety and tranquillity. This is an unequivocal statement on the law and militates against an acceptance of Mr. Tripathi's submission. This view was also reiterated, and the Division Bench decision in Kamalakar Shankar Patil followed, in the Hajrat alias Barkya Shoukatali Khan V/s. Mr. R. Mendonca 7 order dated 11th February 2000. That decision held that the expressions "public order"

and "public peace" are akin and "merely because in the Hindi translation furnished to the Detenu in place of public order public peace was mentioned" the Detenu's right to make an effective representation under Article 22(5) of the Constitution of India was not impeded. Mr. Tripathi's first submission is therefore rejected.

5 (2008) 9 SCC 89 6 1994 Criminal Law Journal 1867 7 Criminal Writ Petition No. 1467 of 1999 5 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC

8. The second submission made by Mr. Tripathi is more substantial. Here, Mr. Tripathi submits that the Detention Order refers to several criminal cases filed against the Detenu. It also refers to bail applications made by the Detenu and orders passed thereon. Mr. Tripathi says that the translations into Hindi of these applications and orders are not only imprecise, but in some case actually missing; i.e., there are some documents in the English version that have been totally omitted from the Hindi translations. In respect of C.R.No. 28 of 2012, the Detaining Authority relies on a Bail Application made by the Detenu, a copy of which is at page 377 of the documents relied on by the Detaining Authority. The order dated 23rd January 2012 on that application granting provisional bail of Rs.20,000/-, is, however, not to be found in the compilation of documents relied on but appears only in the grounds of detention. That this is so is admitted in the Detaining Authority's affidavit in paragraph 11. Similarly, in respect of C.R.No. 314 of 2012, there is a reference to a Bail Application and an order thereon in paragraph 5(c)(viii) in the grounds of detention. This document is at page 665 of the English compilation of documents. The original of this document has an endorsement in the left margin written in hand "subject to address proof allowed". This is the order on Bail Application. Admittedly, this order has not been translated. 8 It is not to be found in the Hindi translation of the documents relied on.

Mr. Tripathi submits that these are fatal flaws and they hamper the Detenu's right to make an effective representation under Article 22(5) of the Constitution of India.

8 Detaining Authority's Affidavit-in-reply, paragraph 12 6 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC

9. Mrs. Pai, on the other hand, submits that as long as the substance of the applications and the orders thereon have been made available to the Detenu, it matters not where these are to be found;

and, she further submits, in any event, the Detenu could not have been unaware of the Bail Applications that he himself made and the orders on those applications. We cannot possibly accept this submission. It is hardly possible for the Detenu, while under incarceration, to be able to recollect or collate material that is not made available to him. To take an example, had the English document itself been incomplete, i.e., only part of a document made available and the other part not, would it have been possible to contend that the Detenu's right to make an effective representation was not, in fact, compromised? If not, then there is no reason why, merely because the documents have been made available to the Detenu in translation to a language of his choice, we should accept the contention that as long as the Detenu had "substantial" knowledge of the documents relied on, there is sufficient compliance with the provisions of Article 22(5) of the Constitution of India.

10. If Mrs. Pai's submission is to be accepted, then it would mean even if a statement is made imprecisely or there is reliance on a document only in generalities, the Detenu's right to make an effective representation cannot be said to be impeded. We do not believe this to be a correct statement of the law. An order of preventive detention is a significant, and perhaps draconian, restriction on fundamental rights and liberties guaranteed under our Constitution. It is for this reason 7 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC that Constitution itself mandates that every Detenu against whom an order of preventive detention is made or is sought to be made must have the right to make a representation. The two parts of Article 22(5) of the Constitution are joined at the hip. The second of these, the detenu's right to make a representation at the earliest, is not merely an opportunity; it is a right, and it is one that flows from the first part of Article 22(5), the right to have the grounds of detention communicated to him. For the right to make a representation to be effective, the grounds of detention -- and this includes the documents on which those grounds have been formulated -- must be complete and must be in a language known to the detenu. He is not expected to extrapolate, surmise, conjecture, and hypothesize what the detaining authority might or might not have had in mind, nor is he required to have an eidetic memory of all the very many documents relied on by the authority. That opportunity must be one that is effective, otherwise it is no opportunity at all. The opportunity cannot be illusory. To be effective, the material communicated to the Detenu must be complete in all respects. It matters not whether the Detenu already knew of the contents of the documents or not. Any failure or even a delay in furnishing a complete set of documents amounts to a denial of a right to make an effective representation. 9 If an order of preventive detention is allowed to continue, the Detenu must be supplied with all documents, statements and other material relied upon in the grounds of detention. 10 It is clear from this that Mr. 9 M. Ahamedkutty V/s. Union of India and anr, (1990) 2 SCC 1, paras 19, 20 10 Thahira Harias and others V/s. Government of Karnataka and others, (2009) 11 SCC 438 8 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC Tripathi is justified in contending that it is not enough to reproduce the substance of a document in the body of detention. The actual document, or a true translation thereof, must be shown. If not, it must necessarily follow that the Detenu has been denied the right to make an effective representation, and on that ground, the order of detention must be set aside.

11. The detaining authority, it is now well-settled, must supply all documents as a part of the grounds or in pari passu with the grounds. 11 Without service of a full set of documents on which the detention order is based there cannot, in fact, be said to be any valid service of the grounds of detention.12 In a case similar to the one at hand, where a translated copy of the remand order was not supplied to the detenu who understood only Tamil, the detention order was held to be illegal.13 Even closer is the decision of the Division Bench of this court in Smt Rehana Firoz Khan v Shri M. N. Singh & Ors,14 where, finding an incomplete and inaccurate translation of a bail application and the order granting bail, the latter having been relied on, it was held that the detention order is liable to be quashed. In the present case, too, there is no manner of doubt that the various bail applications and orders thereon have been relied on by the detaining authority. This is materially different from a case where in part of a paragraph the relevant portion is omitted but is to be found in another portion of the same paragraph, as was found in Ganesh Motiram Vichare v M. N. 11 A. C. Razia v Government of Kerala, (2004) 2 SCC 621, para 36 12 S. Gurdip Singh v Union of India & Ors., AIR 1981 SC 362 13 Powanammal v State of Tamil Nadu & Anr., 1991 Cri L J 831 14 2001 All MR (Cri) 217 9 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC Singh,15 a decision cited by Mrs. Pai. Where the detaining authority relies on the English versions of certain documents, or parts of documents, in forming his subjective satisfaction as to the grounds of detention, these documents are vital in their entirety. Their omission in translation amounts to a non-communication of the grounds of detention, and is fatal to the order of detention. 16

12. In response, Mrs. Pai relies on two decisions, one of a Division Bench of this Court in Shri. Rajesh Kushalani and another V/s. Shri. Mahendra Prasad, Joint Secretary, Government of India and others,17 to suggest that even in a case where copies are not legible, this Court had held that this factor would vitiate the order only if the document was a basic fact but not if the document was merely evidence of a basic fact. If the contents of the documents were communicated in another accompanying document, which were legible, there could be no prejudice to the Detenu. This seems to be not a pronouncement of law of universal application, but limited to the facts of that case, where under the COFEPOSA Act certain bills of entry were found to be missing the endorsement of the Customs Authorities. The question there was about the legibility of the original documents even in the English version and the absence of translation. Since some portions of originals were found to be illegible these portions were not found translated. We do not see how this can be of any assistance of Mrs. Pai. She also relies on the decision of Supreme Court in Devaji Vallabhbhai 15 2001 All MR (Cri) 214 16 Brijbihari Shivdarshan Shukla v R. H. Mendonca, 1998 1 Bom.C.R. 144; (1997) 3 MahLJ 760 17 1992 (3) Bom.C.R. 272 10 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC Tandel V/s. The Administration of Goa, Daman and Div and another,18 and in particular paragraph 8 of that decision. There the question was of a translation into Gujarati and the Supreme Court held that although the section of the COFEPOSA Act had not been mentioned in the last but two paragraphs of the grounds of detention, it had nonetheless been stated that the Detenu was engaged in smuggling, etc and this was set out in Gujarati. In that context, the Supreme Court held that the Detenu could not be said to be in any way handicapped in submitting his representation. Once again, we do not see how this can be of any possible assistance to Mrs. Pai whose submission only seems to be that it is sufficient for the purposes of Article 22(5) of the Constitution of India if either of the following two situations obtain:

viz., (a) the Detenu knew or must reasonably be deemed to have known or been aware of certain facts such as orders on his own Bail Applications; or (b) these can be gathered from other documents such as the grounds of Detention even if in the grounds only the essence of the orders passed have been set out. As we have noted, it is not possible to accept these submissions. The law on the subject is unambiguous and leaves no manner of doubt that it is every Detenu's inalienable right under Article 22(5) of the Constitution of India to be supplied a true and complete set of documents and materials relied on by the detaining authority.

13. We are unable to understand why such a routine and trifling matter as providing a complete translation could not have been done by 18 AIR 1982 SC 1029

11 of 12 ::: Downloaded on - 27/11/2013 20:10:52 ::: CRWP1974-13-D.DOC the Authorities. The non-supply of vital materials seems to us to be either sheer carelessness or, worse yet, a want of application of mind on the part of Detaining Authorities. In either event, the result is the same: the impugned order of detention must be quashed and set aside. In the result we pass the following order:

ORDER

14. Rule is made absolute in terms of prayer clause (c), which reads thus:

"(c) That the order of detention being No.04/PCB/DP/ZoneIV/ 2013 dated 12.03.2013 issued under Section 3(1) of M.P.D.A. Act, 1981 by Commissioner of Police, Brihan Mumbai against the detenu, be quashed and set aside and on quashing the said order of detention the detenu be released forthwith."

Parties to act on an authenticated copy of this order.

15.

            (G.S. Patel, J.)                               (A.S. Oka, J.)





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