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TMI Blog1991 (7) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in view of the discrepancies between the documents in English relied upon by the detaining authority and their translations in Marathi supplied to the petitioner-detenu, he has been prejudicially affected in his right to make an effective representation against his detention and, therefore, the impugned order of detention has become illegal and invalid on this ground alone. On the other hand Mr. Page, the learned counsel, appearing on behalf of respondents Nos. 1 and 2 supported by Mr. Patwardhan, the learned counsel, appearing on behalf of the Union of India have strenuously contended that there is no substance whatsoever in the above contention raised by the petitioner. According to them, the errors or discrepancies in the original certificates which are in English and their translated copies in Marathi supplied to the petitioner are of a very minor nature and, therefore, they have in no way affected the right of the petitioner to make an effective representation against his detention. The detention order is, therefore, perfectly valid. 3. In order to understand the rival contentions raised by both the sides on the factual aspects of the documents in their right perspective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Marathi. Moreover, the bracketed portion in the said medical certificate in English though omitted in its Marathi translation, it has no relevance whatsoever with the grounds, of detention and as such the said portion in innocuous and, therefore, the omission of the same has in no way effected the right of the petitioner to make an effective representation against his detention. According to them, these discrepancies between the certificate in English and its translation in Marathi are in fact no discrepancies as it is clear that whatever stated in the certificate in English in abreviation form is translated in Marathi in elaborated form just to convey the meaning of the said certificate. For example, in the said certificate in English Injury No. 2 'MA (Lt.) ring finger' is translated as 'minor abrasion on left ring finger'. After going through the medical certificate in English and its translation in Marathi prima facie we find no discrepancy between these documents which could affect the right of the petitioner to make an effective representation against his detention. We will once again refer to these discrepancies in the subsequent portion of this judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents that in the description of Injuries Nos. 1 and 2 there is a typographical error whereby instead of word 'MD' words 'M.s.' and 'MP' are used respectively. However, the said typographical error is corrected in the translated version by describing the said injuries as 'muscle deep injuries'. After hearing both the sides we are of the opinion that these discrepancies are of very minor nature which in no way could affect prejudicially the right of the petitioner to make an effective representation against his detention. The other discrepancy pointed out by Mr. Tripathy is in respect of the description of Injury No. 1 in the aforesaid certificate. In its Marathi version the dimension of the injury is described as 4 Cm./1.50 Cm. muscle deep. However, in the certificate in English while describing the dimension '4 CM.' is not mentioned and dimension '1.5 Cm.' described in vernacular is mentioned as M. 15. There are also discrepancies between Injury Nos. 1, 4 and 6 in the certificate dated 17th January, 1990, and its vernacular version. However, to what extent these discrepancies could effect the right of the petitioner to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disobedience of orders. He/She is recommended leave for a period of ........... His/Her injuries were such as to prevent him/her from attending to his/her normal duties. O.P.D. No. ................ Indoor No. ................ Casualty No. 10169. Sd/-. Medical Officer." In the said medical certificate in English the date mentioned is '11/9.' while in the translated copy the date mentioned is '18/1/90'. Further, though in the translated copy there is a specific mention that 'there is no fracture of bone' the said reference is not found in the certificate in English. It was further pointed out on behalf of the petitioner that while describing the injuries in English the unit of measurement is not mentioned while in Marathi translation the unit of measurement for measuring the would is 'foot' and 'inch'. Then the next discrepancy pointed out is the absence of the bracketed portion in the translated copy which is also similar to the other three certificates and we do not think it necessary to repeat the same discussion over again. 6. Then the next lacuna pointed out by the learned counsel on behalf of the petitioner is betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his earlier application for bail the petitioner knew very well what were the charges against him and, therefore, the said discrepancies pointed out by the learned counsel are innocuous and the same have in no way prejudicially affected the petitioner to make an effective representation against his detention. 7. Now we shall discuss the case law cited by the learned counsel on both the sides. They have cited a number of judgments of this court as well as the Supreme Court. Mr. Tripathy firstly placed reliance on the ruling of the Supreme Court in Kirit Kumar Chamanlal Kundaliya v. Union of India, . Para 12 of the said judgment runs thus : "The matter does not rest here but two additional points which have been taken in the writ petition before us are sufficient to void the order of detention passed against the detenu. In the first place, it was submitted that the endorsement on the file produced before us by the Government shows that the documents concerned were examined not by the detaining authority but by the Secretary and there is nothing to show that the note or endorsement of the Secretary was placed and approved by the detaining authority. In these circumstances, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstand English. Not only this, but even if there is any discrepancy in the translated copies supplied to him of the documents relied upon by the detaining authority then virtually it amounts to non-supply of the documents and, therefore, on the basis of the ratio laid down by the Supreme Court in the above decision, the impugned order of detention has become void. 9. Mr. Tripathy then cited the judgment of the Supreme Court in Khudiram Das v. State of West Bengal, . In this case the Supreme Court observed that when it is incumbent upon the detaining authority to supply all the materials which have been taken into account by it in passing the order of detention, it is also incumbent upon the detaining authority to supply the detenu the true and correct translations of the documents relied upon by it. Relying upon the aforesaid observations it is contended on behalf of the petitioner that since it is incumbent upon the authority to supply all the materials which have been taken in account by the detaining authority in passing the impugned order of detention, there it is also incumbent upon the detaining authority to supply the petitioner true and correct translations of the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of preventive detention the test is not one of prejudice, but one of strict compliance with the provisions of the Act and when there is failure to comply with those requirements, it becomes difficult to sustain the order of detention. Relying on these observations it was argued on behalf of the petitioner that it is incumbent upon the authority to supply the grounds of detention and the documents relied upon by it in the language known to the petitioner and in this case there is a discrepancy between the original documents and the translated copies supplied to the detenu. According to him, this discrepancy amounts to the failure on the part of the detaining authority to the strict compliance with the provisions of Art. 225 of the Constitution of India. In view of the above, according to him, the impugned order of detention has become illegal, void and inoperative as the same is in violation of the provisions of (Art. 22(5)) of the Constitution of India. 12. Mr. Tripathy then placed reliance on the ratio laid down by the Supreme Court in Ibrahim Ahmed Batti v. State of Gujarat, . In this case the translated copies of the statements and other documents relied upon by the detaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation and, therefore, the order of detention was set aside. Mr. Tripathy then relied on the decision of this Court in the case of Shekhar Shantaram Pawaskar v. V. K. Saraf, 1990 Cri LJ 138. In this case Marathi translation of the medical certificate supplied to the detenu was found wholly inaccurate and incomplete, the original certificate which was in English. In this case this Court has not applied the test as to whether the documents have materially caused prejudice to the detenu or likely to affect the right of his effective representation against his detention, but held that the translated copy of the document relied upon in the grounds of detention was wholly incomplete and inaccurate and, therefore, the same amounted to non-supply of the documents relied upon by the detaining authority resulting in violation of the provisions of Art. 22(5) of the Constitution of India. 14. As against the above authorities relied upon by the learned counsel on behalf of the petitioner, Mr. Page and Mr. Patwardhan, on behalf of the respondents cited certain authorities of the Supreme Court as well as this Court in support of their contentions that the impugned order of detention is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viction could have been entertained by the detaining authority on the grounds mentioned in S. 3(1) of the said Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position then in view of S. 5A of the Act there was sufficient material to sustain this ground of detention." 15. The Supreme Court in the above case observed that there was sufficient other material in the grounds of detention after excluding the disputed defective material. Relying on these observations of the Supreme Court, the learned counsel on behalf of the respondents contended that after excluding the documents challenged by the petitioner, if there is sufficient other material to sustain the grounds of detention, then in that case the order of detention remained unaffected and is, therefore, perfectly valid. It is, therefore, clear that where the detention is based on several grounds and on several pieces of evidence and after excluding the disputed and defective material if there is sufficient other material that would be good enough to come to a prima f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents also relied upon another unreported decision of the Division Bench of this Court (Coram : S. P. Kurdukar and Dr. E. D. D. S. Da. Silva JJ.) in Criminal Writ Petn. No. 546 of 1990, decided on 22nd August, 1990. In all these decisions this court followed the principles laid down by the Supreme Court in the case of Prakash Chandra Mehta v. Commissioner and Secretary. Government of Kerala (1986 Cri LJ 786), and the unreported judgment of the Supreme Court in Writ Petition (Criminal) No. 682 of 1986, Sheopujan Prasad v. Union of India and upheld the order of detention in those case. 17. In reply to the submissions made on behalf of the respondents Mr. Tripathy submitted that in the matter of preventive detention the test is not one of prejudice, but one of strict compliance with the provisions of the Act and when there is failure on the part of the detaining authority to comply with the requirements of the Act, then the impugned order of detention is liable to be struck down. He further pointed out that the decision of the Supreme Court in Prakash Chandra Mehta's case (1986 Cri LJ 786) is in peculiar circumstances of that case and, therefore, the same cannot be applied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents in the language known to the detenu, the detention order is bound to be vitiated as the same is passed in violation of the provisions of Art. 22(5) of the Constitution of India. In that case the Addl. Solicitor General on behalf of the Union of India contended that though the petitioner was not knowing Tibetan language, his wife was conversant with English and Tibetan languages and, therefore, no prejudice was caused to the petitioner for making an effective representation against his detention. It was in his context that the Supreme Court observed that in the matter of preventive detention, the test is not one of prejudice, but one of strict compliance with the provisions of the Act. In our opinion, therefore, that case is clearly distinguishable from the facts and circumstances of the present case. In the case before us it is not the grievance of the petitioner that he was not supplied with the copies of the documents or the grounds of detention in the language known to him, but it is the case of the petitioner that there are certain discrepancies between the contents of the documents and their translated copies in Marathi which were relied upon by the detaining authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. 7) Under S. 5A of the said Act when a person has been detained in pursuance of an order of detention under sub-sec. (1) of S. 3 of the said Act on two or more grounds. Such an order of detention shall be deemed to have been passed separately on each of such grounds. That means if an order of detention is passed on more than one ground and one of those grounds becomes defective, still the order of detention remains valid as the said detention order is deemed to have been passed on the remaining ground or grounds excluding the defective ground. 8) If there are discrepancies between the original documents relied upon by the detaining authority and the copies of the documents or translations supplied to the detenu in order to enable him to make an effective representation and if there discrepancies are of a very minor nature not connected with any of the grounds of detention, then the same have to be ignored. 9) If the said discrepancies are with reference to the grounds of detention and are such so as to affect the subjective satisfaction of the detaining authority, then the order of detention is liable to be struck down as the same are in violation of the provisions of Art. 22(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-30 p.m. Amrutlal Laddha Maru, the proprietor of a wine shop known as 'Pankaj Wines' situated at the junction of 16th Road, and C.D. Marg, Khar (W), Bombay-400052, put cash of ₹ 14,600/- in 5 Khakhi colour envelopes which envelopes were placed in a white plastic bag and kept on the seat next to the driver's seat of the Maruti Car No. MAJ-6007. As Amrutlal Laddha Maru was about to start the car, your associates, Zakirali Akbarali Shaikh and Abdul Rahim Razak Shaikh accosted him. Your associate Zakirali Akbarali Shaikh who was armed with a chopper pulled Amrutlal Laddha Maru out of the car. Amrutlal Laddha Maru caught hold of the chopper and sustained injuries to his left hand little finger. At the same time, your other associate Abdul Rahim Razak Shaikh pointed a pistol at Amrutlal Laddha Maru when he left the chopper saying 'mere ko chhodo gadi mein paise hai' and started running shouting 'bachao bachao'. Your said two associates also threatened Lalsingh Gangaram Thapa, the watchman of Amrutlal Maru. Your associate, Abdul Rahim Razak Shaikh removed the white plastic bag, containing ₹ 14,600/- belonging to Amrutlal Maru from the car and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncident as alleged in the grounds of detention is taken as a whole, there is material to infer that the petitioner was involved in dacoity and secondly one of his associates used a revolver in furtherance of their common intention to rob the complainant, Amrutlal Laddha. Further, in the personal search of the detenu when he was arrested on 23rd December, 1989, a country made revolver with six live cartridges and 14 other loose cartridges were found on his person and subsequently the chopper was also recovered at his instance. Therefore, this material relied upon by the detaining authority itself is sufficient to come to a subjective satisfaction for the issuance of the impugned detention order. 22. The fourth ground mentioned in the grounds of detention is as under : "(IV) On 22-12-1989 at a about 11 a.m. while your wife, Sudha Nandu Desai was walking along 'Macchi Market' at Bazar Road, Bandra (W), Bombay, you arrived there in a rickshaw and threateningly said to her : "Bhenchod Tujhya Aaichi gand, policeana sang me tula marle, tula kay karayache te kar". So saying you dealt a knife blow on the head of Sudha and she sustained bleeding injuries. You then s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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