Full Judgment Text
2013:BHC-AS:26561-DB
1 cri.wp.3231.13.doc
SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3231 OF 2013
Sandip Suresh Ghag,
Age 26 years, residing at
Suresh Patel Chawl, Saibaba Nagar,
Satya Nagar, Borivali (West), ...Petitioner/
Mumbai – 400 092 Detenu
(At present in Nashik Road Central Prison
at Nashik)
Versus
1. The Commissioner of Police,
Mumbai;
2. The State of Maharashtra;
3. The Superintendent,
Nashik Road Central Prison,
Nashik. ...Respondents
......
Mr. U. N. Tripathi for Petitioner/Detenu
Mr. J. P. Yagnik, A.P.P. for Respondents
......
CORAM:- A. S. OKA AND
REVATI MOHITE DERE, JJ.
DATED:- OCTOBER 23, 2013
JUDGMENT (Per Revati Mohite Dere, J. ) :
1.
This petition takes exception to the order of detention bearing
th
No.11/PCB/DP/Zone-XI/2013 dated 19 July, 2013 passed under Section
SQ Pathan
1/10
::: Downloaded on - 01/04/2024 16:48:17 :::
2 cri.wp.3231.13.doc
3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act,
1981 by the Commissioner of Police, Mumbai as against the petitioner/
detenu.
2. The petitioner has raised several grounds for seeking quashing
and setting aside of the order of detention. However, in our opinion, it is
not necessary to advert to all the grounds, except ground 3(h) of the
petition.
3. In ground 3(h), in short, it is stated that the Detaining Authority
has communicated the grounds of detention and all other relied on
documents in a compilation, the original of which is in English along with
the Marathi translation. It is stated that the detenu being a Maharashtrian, is
able to read, write and understand Marathi language only. According to the
petitioner, an injury report of Shri Anant Balu Kapre, which is a medico-
legal document at page 125 of the compilation has been supplied to the
petitioner/detenu in English along with the Marathi translation thereof.
According to the petitioner/detenu, the Marathi translation of the injury
report, is not true and correct. It is stated that in the second column under
SQ Pathan
2/10
::: Downloaded on - 01/04/2024 16:48:17 :::
3 cri.wp.3231.13.doc
the caption “nature of injury”, item No.4 is not the true translation and there
is some addition found in the Marathi translation, which is not there in the
original English document. Similarly, in column 2 of the injury report,
item No.4, the size of the injury which is shown as 2 cm diameter, is not
found to be correctly translated. Thirdly, the last column of the report i.e.
the `remark column’, has not been translated at all in the Marathi translated
report. Therefore, according to the petitioner, non-furnishing of true and
faithful translation of the injury report, a relied on and vital document, has
impaired his right to make an effective representation under Article 22(5) of
the Constitution of India.
4. In response to the aforesaid ground at 3(h), the Detaining
Authority has filed its reply and countered the same. It is stated in the reply
that the detenu had been furnished with the true, correct and faithful
translation of the documents in order to enable him to make effective and
purposeful representation. It is stated that the medico-legal document at
page 125, in the compilation of documents, pertains to a C.R., being C.R.
No. 62 of 2013 of the Borivali Police Station. It is stated that the detenu
has been partly furnished with the Marathi translation of the said document
SQ Pathan
3/10
::: Downloaded on - 01/04/2024 16:48:17 :::
4 cri.wp.3231.13.doc
and that in the last column i.e. “remarks column”, the medical details of the
treatment given to the complainant have not been furnished to the detenu.
However, the material details as to the type of injury/details of injury, on
which part of the body the said injury is caused and whether the injury is
simple, grievous or dangerous to life, have been furnished to the detenu so
as to enable him to make an effective representation. It is stated that the
necessary details of the medico-legal certificate have been furnished to the
detenu and hence, mere non-furnishing of the remarks will not affect the
detenu’s right to make an effective and purposeful representation. It is
further stated that the second column of the medico-legal certificate, which
pertains to the nature of injury has been correctly translated and furnished
to the detenu. It is also stated that the size of the injury in item No.3 which
pertains to abrasion and contusion, the size of injury 1.5 x 0.1 cm has been
translated and furnished to the detenu. However, inadvertently, the 2 cm
diameter injury has not been translated and given to the detenu. It is stated
that non-furnishing of the size of the injury will not, in any way, affect the
detenu’s right to make an effective representation, as the other material
facts have been furnished to the detenu to enable him to make an effective
representation.
SQ Pathan
4/10
::: Downloaded on - 01/04/2024 16:48:17 :::
5 cri.wp.3231.13.doc
5. We have heard Shri U. N. Tripathi for the petitioner/detenu and
Shri J. P. Yagnik, learned A.P.P. for the respondent i.e. the Detaining
Authority.
6. The principal ground which is urged before us by the learned
Counsel for the petitioner, is that non-furnishing of the true and correct
translation of a vital document, which is the `injury report' in the present
case, has impaired the petitioner's right to make an effective representation
as mandated under Article 22(5) of the Constitution of India. Shri U. N.
Tripathi in support of his contention, relied on a Judgment of this Court
delivered in Mohammed Rafique Abdul Majid v. R. H. Mendonca &
1
Ors. , wherein, on similar grounds, the order of detention was quashed.
According to the learned A.P.P., the said discrepancies in the Marathi
translation of the injury report, which is in English, are not fatal nor do they
cause any prejudice to the petitioner/detenu in making an effective
representation.
1 1999 All MR (Cri.) 1633
SQ Pathan
5/10
::: Downloaded on - 01/04/2024 16:48:17 :::
6 cri.wp.3231.13.doc
7. The law relating to variance in translation of documents from
English language to any other language with which the petitioner/detenu is
conversant, is no longer res integra. We have perused the injury report, in
st
English and its Marathi translation. As far as the 1 column with regard to
the `nature of injury' is concerned at Serial No.4, it is stated as `Blunt
trauma'. According to us, there is no discrepancy/addition as alleged in the
Marathi translation, inasmuch as it is correctly translated as `
ckFkV t[ke
As far as the column with respect to the size of each
dkGh fuGh iMysyh '.
injury, i.e. column 2 at Serial No.3, reference to `2 cm diameter' injury is
amiss in the Marathi translation thereof. Similarly, in the last column of the
English injury report i.e. `Remarks column' all the entries therein are not
found in the Marathi translation thereof. It is pertinent to note that the
aforesaid discrepancies, have been stated by the Detaining Authority to be
`inadvertent mistakes'. According to the Detaining Authority, `no prejudice'
is caused to the detenu on account of the same. The Detaining Authority
has also stated in its reply that the material relied upon by him for issuing
the order of detention has been furnished to the detenu. We may therefore
note, that the injury report which forms part of the compilation of the
documents accompanying the grounds of detention served on the detenu,
SQ Pathan
6/10
::: Downloaded on - 01/04/2024 16:48:17 :::
7 cri.wp.3231.13.doc
were relied upon by the Detaining Authority to form his subjective
satisfaction. There is nothing in the affidavit filed by the Detaining
Authority to even remotely suggest that the Detaining Authority had
selectively relied upon some of the documents included in the compilation
of documents furnished to the petitioner, much less, excluded the injury
report from consideration while forming his subjective satisfaction.
Therefore, the concomitant of this finding is that the document i.e. injury
report was a vital document and would have to be considered as `ground'
within the meaning of the `grounds of detention'. It is pertinent to note that
the Apex Court has expounded the meaning of the expression “grounds”,
within the expansive meaning of the expression “grounds of detention”, in
2
the case of Khudiram Das vs. The State of West Bengal & Ors. . It was
held in the said case that the expression `grounds' means all the basic facts
and “materials which have been taken into account” by the Detaining
Authority in making the order of detention and on which the detention
order is based. We are therefore of the opinion, that the variance in the
Marathi translation of the original injury report which is in English, with
regard to the size of the injuries and the blanks in the remarks column,
2 (1975) 2 SCC 81
SQ Pathan
7/10
::: Downloaded on - 01/04/2024 16:48:17 :::
8 cri.wp.3231.13.doc
impinges the right of the petitioner/detenu to make an effective
representation under Article 22(5) of the Constitution of India. In cases
relating to preventive detention, the question of `prejudice' does not arise,
inasmuch as the law relating to preventive detention is visited with stringent
consequences and more particularly when the documents are relied upon by
the Detaining Authority for forming its subjective satisfaction.
8. In Mohammed Rafique Abdul Majid (supra) relied upon by
the learned Counsel for the petitioner, this Court was dealing with a similar
case, where the injury report was not a true and faithful translation of the
original injury report in English. This Court in para 4 observed thus :
“4. …...... Mr. Deshmukh learned counsel for the
respondents urged that this would make no difference
because the detenu knew Hindi and invited our attention to
the Hindi translation of the injury report contained in the
original file, a copy of which was given to the detenu.
From its perusal it appears that the said translation is legible
but it is not true and faithful. In the original Injury report
which is in English one of the injuries mentioned is
superficial CLW (L) frontal region above hair line, about 1
cm. x 2 cm. x 5 cm. deep. In the Hindi translation of the
said Injury report as contained in the original file the
following things are missing:
(a) Superficial; (b) C.L.W. and (c) 1 cm. x 2 cm. x 5
c.m. deep.
Since admittedly the copy of the Injury report supplied to
SQ Pathan
8/10
::: Downloaded on - 01/04/2024 16:48:17 :::
9 cri.wp.3231.13.doc
the detenu in Hindi, was a copy of the Hindi translation of
the injury contained in the original file the detenu, who only
knew Hindi, could have been mislead and his right to make
an effective representation under Article 22 (5) of the
Constitution of India, could have been impaired.”
9. Therefore, according to us, the petitioner/detenu is justified in
contending that his right to make effective representation has been
impinged within the meaning of Article 22(5) of the Constitution of India,
as has been expounded by the Apex Court in a catena of decisions. In view
of the affidavit of the Detaining Authority, we have no hesitation in taking
the view, that the `injury report', was a relied upon document for forming
the subjective satisfaction, which is imperative in detaining the detenu to
prevent him from indulging in prejudicial activities in future. As the
translation of the injury report was not a complete and faithful translation of
the original report in English, the petitioner/detenu's right to make an
effective representation could have been impaired. Thus, the detention
order deserves to be quashed and set-aside on the said ground and the
petition ought to succeed. Accordingly, we pass the following order :
ORDER
Rule is made absolute in terms of prayer clause (b), which
reads thus:
SQ Pathan
9/10
::: Downloaded on - 01/04/2024 16:48:17 :::
10 cri.wp.3231.13.doc
“(b) That the order of detention being
No.11/PCB/DP/Zone-XI/2013 dated 19.07.2013 issued under
Section 3(1) of M.P.D.A. Act, 1981 by the Commissioner of
Police, Mumbai against the detenu,be quashed and set aside
and on quashing the order of detention the detenu be released
forthwith.”
(REVATI MOHITE DERE, J.) (A. S. OKA, J.)
SQ Pathan
10/10
::: Downloaded on - 01/04/2024 16:48:17 :::
1 cri.wp.3231.13.doc
SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3231 OF 2013
Sandip Suresh Ghag,
Age 26 years, residing at
Suresh Patel Chawl, Saibaba Nagar,
Satya Nagar, Borivali (West), ...Petitioner/
Mumbai – 400 092 Detenu
(At present in Nashik Road Central Prison
at Nashik)
Versus
1. The Commissioner of Police,
Mumbai;
2. The State of Maharashtra;
3. The Superintendent,
Nashik Road Central Prison,
Nashik. ...Respondents
......
Mr. U. N. Tripathi for Petitioner/Detenu
Mr. J. P. Yagnik, A.P.P. for Respondents
......
CORAM:- A. S. OKA AND
REVATI MOHITE DERE, JJ.
DATED:- OCTOBER 23, 2013
JUDGMENT (Per Revati Mohite Dere, J. ) :
1.
This petition takes exception to the order of detention bearing
th
No.11/PCB/DP/Zone-XI/2013 dated 19 July, 2013 passed under Section
SQ Pathan
1/10
::: Downloaded on - 01/04/2024 16:48:17 :::
2 cri.wp.3231.13.doc
3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act,
1981 by the Commissioner of Police, Mumbai as against the petitioner/
detenu.
2. The petitioner has raised several grounds for seeking quashing
and setting aside of the order of detention. However, in our opinion, it is
not necessary to advert to all the grounds, except ground 3(h) of the
petition.
3. In ground 3(h), in short, it is stated that the Detaining Authority
has communicated the grounds of detention and all other relied on
documents in a compilation, the original of which is in English along with
the Marathi translation. It is stated that the detenu being a Maharashtrian, is
able to read, write and understand Marathi language only. According to the
petitioner, an injury report of Shri Anant Balu Kapre, which is a medico-
legal document at page 125 of the compilation has been supplied to the
petitioner/detenu in English along with the Marathi translation thereof.
According to the petitioner/detenu, the Marathi translation of the injury
report, is not true and correct. It is stated that in the second column under
SQ Pathan
2/10
::: Downloaded on - 01/04/2024 16:48:17 :::
3 cri.wp.3231.13.doc
the caption “nature of injury”, item No.4 is not the true translation and there
is some addition found in the Marathi translation, which is not there in the
original English document. Similarly, in column 2 of the injury report,
item No.4, the size of the injury which is shown as 2 cm diameter, is not
found to be correctly translated. Thirdly, the last column of the report i.e.
the `remark column’, has not been translated at all in the Marathi translated
report. Therefore, according to the petitioner, non-furnishing of true and
faithful translation of the injury report, a relied on and vital document, has
impaired his right to make an effective representation under Article 22(5) of
the Constitution of India.
4. In response to the aforesaid ground at 3(h), the Detaining
Authority has filed its reply and countered the same. It is stated in the reply
that the detenu had been furnished with the true, correct and faithful
translation of the documents in order to enable him to make effective and
purposeful representation. It is stated that the medico-legal document at
page 125, in the compilation of documents, pertains to a C.R., being C.R.
No. 62 of 2013 of the Borivali Police Station. It is stated that the detenu
has been partly furnished with the Marathi translation of the said document
SQ Pathan
3/10
::: Downloaded on - 01/04/2024 16:48:17 :::
4 cri.wp.3231.13.doc
and that in the last column i.e. “remarks column”, the medical details of the
treatment given to the complainant have not been furnished to the detenu.
However, the material details as to the type of injury/details of injury, on
which part of the body the said injury is caused and whether the injury is
simple, grievous or dangerous to life, have been furnished to the detenu so
as to enable him to make an effective representation. It is stated that the
necessary details of the medico-legal certificate have been furnished to the
detenu and hence, mere non-furnishing of the remarks will not affect the
detenu’s right to make an effective and purposeful representation. It is
further stated that the second column of the medico-legal certificate, which
pertains to the nature of injury has been correctly translated and furnished
to the detenu. It is also stated that the size of the injury in item No.3 which
pertains to abrasion and contusion, the size of injury 1.5 x 0.1 cm has been
translated and furnished to the detenu. However, inadvertently, the 2 cm
diameter injury has not been translated and given to the detenu. It is stated
that non-furnishing of the size of the injury will not, in any way, affect the
detenu’s right to make an effective representation, as the other material
facts have been furnished to the detenu to enable him to make an effective
representation.
SQ Pathan
4/10
::: Downloaded on - 01/04/2024 16:48:17 :::
5 cri.wp.3231.13.doc
5. We have heard Shri U. N. Tripathi for the petitioner/detenu and
Shri J. P. Yagnik, learned A.P.P. for the respondent i.e. the Detaining
Authority.
6. The principal ground which is urged before us by the learned
Counsel for the petitioner, is that non-furnishing of the true and correct
translation of a vital document, which is the `injury report' in the present
case, has impaired the petitioner's right to make an effective representation
as mandated under Article 22(5) of the Constitution of India. Shri U. N.
Tripathi in support of his contention, relied on a Judgment of this Court
delivered in Mohammed Rafique Abdul Majid v. R. H. Mendonca &
1
Ors. , wherein, on similar grounds, the order of detention was quashed.
According to the learned A.P.P., the said discrepancies in the Marathi
translation of the injury report, which is in English, are not fatal nor do they
cause any prejudice to the petitioner/detenu in making an effective
representation.
1 1999 All MR (Cri.) 1633
SQ Pathan
5/10
::: Downloaded on - 01/04/2024 16:48:17 :::
6 cri.wp.3231.13.doc
7. The law relating to variance in translation of documents from
English language to any other language with which the petitioner/detenu is
conversant, is no longer res integra. We have perused the injury report, in
st
English and its Marathi translation. As far as the 1 column with regard to
the `nature of injury' is concerned at Serial No.4, it is stated as `Blunt
trauma'. According to us, there is no discrepancy/addition as alleged in the
Marathi translation, inasmuch as it is correctly translated as `
ckFkV t[ke
As far as the column with respect to the size of each
dkGh fuGh iMysyh '.
injury, i.e. column 2 at Serial No.3, reference to `2 cm diameter' injury is
amiss in the Marathi translation thereof. Similarly, in the last column of the
English injury report i.e. `Remarks column' all the entries therein are not
found in the Marathi translation thereof. It is pertinent to note that the
aforesaid discrepancies, have been stated by the Detaining Authority to be
`inadvertent mistakes'. According to the Detaining Authority, `no prejudice'
is caused to the detenu on account of the same. The Detaining Authority
has also stated in its reply that the material relied upon by him for issuing
the order of detention has been furnished to the detenu. We may therefore
note, that the injury report which forms part of the compilation of the
documents accompanying the grounds of detention served on the detenu,
SQ Pathan
6/10
::: Downloaded on - 01/04/2024 16:48:17 :::
7 cri.wp.3231.13.doc
were relied upon by the Detaining Authority to form his subjective
satisfaction. There is nothing in the affidavit filed by the Detaining
Authority to even remotely suggest that the Detaining Authority had
selectively relied upon some of the documents included in the compilation
of documents furnished to the petitioner, much less, excluded the injury
report from consideration while forming his subjective satisfaction.
Therefore, the concomitant of this finding is that the document i.e. injury
report was a vital document and would have to be considered as `ground'
within the meaning of the `grounds of detention'. It is pertinent to note that
the Apex Court has expounded the meaning of the expression “grounds”,
within the expansive meaning of the expression “grounds of detention”, in
2
the case of Khudiram Das vs. The State of West Bengal & Ors. . It was
held in the said case that the expression `grounds' means all the basic facts
and “materials which have been taken into account” by the Detaining
Authority in making the order of detention and on which the detention
order is based. We are therefore of the opinion, that the variance in the
Marathi translation of the original injury report which is in English, with
regard to the size of the injuries and the blanks in the remarks column,
2 (1975) 2 SCC 81
SQ Pathan
7/10
::: Downloaded on - 01/04/2024 16:48:17 :::
8 cri.wp.3231.13.doc
impinges the right of the petitioner/detenu to make an effective
representation under Article 22(5) of the Constitution of India. In cases
relating to preventive detention, the question of `prejudice' does not arise,
inasmuch as the law relating to preventive detention is visited with stringent
consequences and more particularly when the documents are relied upon by
the Detaining Authority for forming its subjective satisfaction.
8. In Mohammed Rafique Abdul Majid (supra) relied upon by
the learned Counsel for the petitioner, this Court was dealing with a similar
case, where the injury report was not a true and faithful translation of the
original injury report in English. This Court in para 4 observed thus :
“4. …...... Mr. Deshmukh learned counsel for the
respondents urged that this would make no difference
because the detenu knew Hindi and invited our attention to
the Hindi translation of the injury report contained in the
original file, a copy of which was given to the detenu.
From its perusal it appears that the said translation is legible
but it is not true and faithful. In the original Injury report
which is in English one of the injuries mentioned is
superficial CLW (L) frontal region above hair line, about 1
cm. x 2 cm. x 5 cm. deep. In the Hindi translation of the
said Injury report as contained in the original file the
following things are missing:
(a) Superficial; (b) C.L.W. and (c) 1 cm. x 2 cm. x 5
c.m. deep.
Since admittedly the copy of the Injury report supplied to
SQ Pathan
8/10
::: Downloaded on - 01/04/2024 16:48:17 :::
9 cri.wp.3231.13.doc
the detenu in Hindi, was a copy of the Hindi translation of
the injury contained in the original file the detenu, who only
knew Hindi, could have been mislead and his right to make
an effective representation under Article 22 (5) of the
Constitution of India, could have been impaired.”
9. Therefore, according to us, the petitioner/detenu is justified in
contending that his right to make effective representation has been
impinged within the meaning of Article 22(5) of the Constitution of India,
as has been expounded by the Apex Court in a catena of decisions. In view
of the affidavit of the Detaining Authority, we have no hesitation in taking
the view, that the `injury report', was a relied upon document for forming
the subjective satisfaction, which is imperative in detaining the detenu to
prevent him from indulging in prejudicial activities in future. As the
translation of the injury report was not a complete and faithful translation of
the original report in English, the petitioner/detenu's right to make an
effective representation could have been impaired. Thus, the detention
order deserves to be quashed and set-aside on the said ground and the
petition ought to succeed. Accordingly, we pass the following order :
ORDER
Rule is made absolute in terms of prayer clause (b), which
reads thus:
SQ Pathan
9/10
::: Downloaded on - 01/04/2024 16:48:17 :::
10 cri.wp.3231.13.doc
“(b) That the order of detention being
No.11/PCB/DP/Zone-XI/2013 dated 19.07.2013 issued under
Section 3(1) of M.P.D.A. Act, 1981 by the Commissioner of
Police, Mumbai against the detenu,be quashed and set aside
and on quashing the order of detention the detenu be released
forthwith.”
(REVATI MOHITE DERE, J.) (A. S. OKA, J.)
SQ Pathan
10/10
::: Downloaded on - 01/04/2024 16:48:17 :::