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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 ..... 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 it is neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat these discrepancies are not on any material point between the original document in English and its translation 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate in English the injuries are described in order to enable the detenu to understand the nature of the injuries and, therefore, their abbreviated forms are not used. It is, however, fairly conceded by the learned counsel on behalf 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e/she was brought to this hospital by P.C. No. 5905/DD and was suffering from the following injuries. CLW R. Penetal Sculp. 1 m. 1/2 MD. No. Clinically ............ The above injuries were sustained by him/her as per his/her statement accidentally during the performance of his/her legitimate duties and are/were not due to his/her own negligence as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Marathi translation there is an endorsement 'Heard advocate. Read application.' This portion is also not found in the application and the order thereon in English. However, in our opinion, these negligible discrepancies cannot go to the root of the matter depriving the petitioner of making an effective representation against his detention. Even the endorsement in vernacular about the earlier order of bail is in fact mentioned by the petitioner himself in his application. It is, therefore, clear that the time of preferring 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Relying on the aforesaid observations of the Supreme Court, Mr. Tripathy argued that if the documents are referred to in the grounds of detention, it becomes bounden duty of the detaining authority to supply the said documents to the detenu as a part of the grounds or pari passu the grounds of detention and, therefore, it is incumbent upon the detaining authority not only to supply the documents referred to in the grounds of detention, but also to supply the true version of the same, as in this case the petitioner is not in a position to understand 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Ladakhi who understood Ladakhi language only and he could hardly write, read or converse in Tibetan language. His wife was a Tibetan and was conversant with Tibetan as well as English languages. The grounds of detention and the copies of the documents supplied to the detenu were not in English, but in Tibetan language. It was contended on behalf of the detenu that since the documents were supplied to him in Tibetan language he had been denied fair and adequate opportunity of representing his case against the detention order. 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 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 amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that the court is not going into the aspect of the relevancy or otherwise of the out portions. Incomplete document was supplied to the detenu instead of complete document which was relied upon by the detaining authority. Whether the cut portion is relevant or not is a matter between the detaining authority and the detenu who is to make a representation against his detention. The observation of this Court is that by furnishing to the detenu incomplete document relied upon by the detaining authority it has caused material prejudice to the right of the detenu to make an effective 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 transl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(iv). We are of the opinion that the impugned order cannot be challenged merely by the rejection of the inference drawn from confession. The same argument was presented in a little difference shade namely the fact of retraction should have been considered by the detaining authority and the Court does not know that had that been taken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 decided on 31st of August, 1990. The contention raised on behalf of the detenu was that the translation of the receipt in English furnished to the detenu is partly illegible. After going through the original document and its translation the Division Bench held that the detenu was sufficiently informed and communicated the name of the jeweller and, therefore, no prejudice was caused to the detenu. The Division Bench, therefore, upheld the order of detention by applying the ratio laid down by the Supreme Court in the case of A. Alangarasamy (1987 Cri LJ 1887) (Supra). The learned counsel on behalf of the respondents 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, therefore, held in that case that the requirement of the law is that the detenu has to be informed about the grounds of detention in the language which he understands and since the detaining authority failed to supply the translations of the documents in Ladakhi language to the detenu there was non-compliance of the provisions of the Act. There is no dispute that the detaining authority has to supply the grounds of detention and the material relied upon in the grounds of detention in the language known to the detenu and if there is failure on the part of the detaining authority to supply the translations of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conversant. 5) If the detaining authority fails to comply with the above requirements, then the detention order becomes invalid as the same is passed without following the procedural safeguards laid down under the provisions of Art. 22(5) of the Constitution of India. 6) While supplying the translated copies of the documents to the detenu in the language known to him if the translation is wholly incomplete or inaccurate, the same is likely to cause prejudice to the detenu to make an effective representation against his detention and, therefore, this also amounts to violation of the provisions of Art. 22(5) of the Constitution of India. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner to make an effective representation against his detention is snatched away on account of these defects in the documents. Assuming for a while that the translations of the certificates in the case before us are defective and these defects are such that they can affect the petitioner of his right to make an effective representation against his detention, still in our opinion, the impugned order of detention is sustainable on the material other than the defective material. In the grounds of detention five specific incidents are relied upon by the detaining authority. The first incident runs thus : (I) On 24-8-1989 at about 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- with one surety in the like amount or cash bail of ₹ 5,000/- in each of the two cases. In C.R. No. 453/89 on application made on your behalf the bail was reduced to ₹ 3,000/- and you have availed yourself bail facility on 25-5-90. In L.A.C. No. 173/89 you have availed yourself bail facility on 25-5-90. 21. In the above incident the medical certificate in respect of Amrutlal Ladha Maru is dated 9th April, 1990. We have already pointed out above that the discrepancies between the original medical certificate in English and its Marathi translation are innocuous, but even if we accept this certificate as defective one, still if the incident 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement you led the independent witnesses and the police to the resident of one Smt. Sunita Kasare at Goregaon, Bombay, from where one country made revolver and 10 live cartridges were recovered and seized under a panchanama. The D.C.B. C.I.D. registered a case vide L.A.C. No. 2/90 for offence under S. 3 read with 25 of the Arms Act and you were shown arrested in the present case. You have been granted bail in the sum of ₹ 3000/- with one surety in the like amount or cash bail of ₹ 2000/-. You have availed yourself the bail facility in this case. 25. This ground is assailed on the ground that there is a discrepancy between the application in English for the reduction of the bail amount relied upon by the detaining authority and its Marathi translation supplied to the petitioner. We have already pointed out above that the said discrepancy is innocuous. Not only this, but even excluding the portion of the ground pertaining to the said application, there is independent material which was sufficient for the subjective satisfaction of the detaining authority to issue the impugned order of detention. It is stated in the said ground that on 1st of January, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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