PRADEEP PANCHAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition, takes exception to the order of detention bearing No. PSA-1211/CR-21(4)/SPL-3(A) dated 7th February, 2012 (shown as PSA-1210/CR-21(4)/SPL-3(A) dated 7th February, 2012), passed under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act'), by the Principal Secretary, (Appeals & Security), Government of Maharashtra, Home Department, Mumbai, as against the detenu. We have heard Mr. Vikram Chaudhari, learned Senior Counsel appearing for the petitioner, Mr. Yagnik, learned APP for the State and Ms. A.S. Pai, APP for the Sponsoring Authority. We have perused the records pertaining to the said case.

(2.) The Learned Senior Counsel appearing for 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 referred to in the petition, except to refer to ground 5(A) and 5(D) of the Writ Petition, which are overlapping. In Ground 5(A), in short, it is stated that as the detenu was not conversant with the English language and had no working knowledge thereof, the detaining authority had furnished the detenu with the Hindi translation of the impugned order of detention and the grounds of detention. It is stated that the order of detention and the grounds of detention communicated to the detenue could not be said to be valid communication, as contemplated under Article 22(5) of the Constitution of India, thereby depriving the detenu of his right to make an effective representation. It is stated that the said communication was mis-leading and had left the detenu confused. In ground 5(D), it is stated that there are several discrepancies and variations in the English and Hindi version of the impugned order of detention, which were material and fatal. It is stated; (i) that the English version bears a different detention order number PSA-1211/CR-21 (4)/SPL-3(A) when compared with its purported Hindi version bearing number PSA-1210/CR-21(4)/SPL-3(A); (ii) that in the Hindi translation of the impugned order of detention, the detaining authority has claimed, ".....Shri Brahmpal Panchal (Umra 53 Saal) jyoyahan rehta hai usai achi tarahse mein wakib hoon......." It is stated that the meaning of the aforesaid sentence, in English would mean that the detaining authority knew the detenu very well, which was not forthcoming in the English order of detention; (iii) that the order of detention in English showed that the detaining authority was "satisfied" about the necessity of passing the order, which is not reflected in the Hindi version; (iv) that the Hindi translation of the order of detention shows that the 'purpose' of detention was in variance and different from the original order of detention in English and lastly (v) the Hindi translation of the detention order shows that the purpose of detention was beyond the powers conferred upon the detaining authority under Section 3(1) of the COFEPOSA Act.

(3.) In response to the aforesaid grounds 5 (A) and 5 (D), the Detaining Authority has in its reply stated, that all the documents were served upon the detenu in a language known and understood by him. It was stated that as the detenu was conversant in Hindi, all the English documents were translated into Hindi and served upon him. According to the Detaining Authority, the discrepancies and variations in the Hindi translation of the impugned order of detention, did not necessarily prejudice the detenu or impair his right to make an effective representation under Article 22(5) of the Constitution of India. It was stated that the discrepancy in the detention order in English bearing No. PSA-1211/CR-21 (4)/SPL-3(A) dated 7th February, 2012 and the Hindi version of the same bearing No. PSA-1210/CR-21(4)/SPL-3(A), is a typographical error and the same will not prejudice the detenu in making an effective representation. It was stated that the 5 discrepancies alleged in ground 5(D) of the petition, with regard to the Hindi translation being inaccurate was incorrect and immaterial, as the Detaining Authority had relied on the English version of the detention order which clearly states that the Detaining Authority was "satisfied with respect to the person known as Shri Brahmpal Panchal (Age 53 years) residing at House No. 515, New Vijay Nagar, Shivpuri, Ghaziabad.". It was therefore stated that a plain reading of the detention order, shows satisfaction of the Detaining Authority and therefore there was no prejudice caused to the detenu in making an effective representation. It was further stated that the discrepancies alleged were not material or in variance so as to cause prejudice to the detenu.