ANIL DATTU PAWAR Vs. HIMANSU ROY

JUDGEMENT

(1.) Heard Perused the records The petitioner/detenu seeks to challenge the order of detention dated 21-10-2004 issued under the Maharashtra Prevention of Dangerous Activities of Slumlords, bootleggers, Drug Offenders and Dangerous Persons Act, 1981, hereinafter referred to as "the MPDA Act", passed by the respondent No 1.

(2.) The records reveal that on 13-2-2002 a complaint came to be lodged against the detenu and his associate by one Ashok Gunjal alleging assault with a knife resulting in injury to the complainant and C. R No. I-28/2002 under sections 307, 504 and 506 r/w section 34 of the Indian Penal Code r/ w. section 135 of the Bombay Police Act came to be registered at the Panchavati police Station. However, the detenu was acquitted in the said case. On 29-1- 2002 a complaint came to be registered by one Shripad Dattatray Joshi alleging assault by the detenu and his associate by name Vishal Vishnu Bhoir by throwing a brick resulting in injury to the complainant and consequently c. R. No. I-337/2002 under sections 337 and 323 r/w section 34 of the Indian penal Code came to be registered at the Panchavati police station The trial in relation to the said complaint is pending before the Court. On 26-8-2003 a c omplaint came to be lodged by one Suresh Hiralal Gupta alleging assault with fist blows by the detenu and his associates causing dislocation of tooth and also having intimidated the complainant by abuses and therefore C. R. No. 1-319/2003 under sections 325, 323, 504 and 506 r/w section 34 of the indian Penal Code came to be registered at the Panchavati police station. The in that regard is pending in the Court. Preventive action under section 110 of the Code of Criminal Procedure was also taken against the detenu being Case No. 9/2004. On 27-2-2004 a complaint came to be lodged by one vittabai Vasant Jadhav alleging the detenu and his associates having assaulted the complainant with sticks, stumps and wooden handles and also having committed mischief by breaking the window glasses of the complainant's house and consequently C. R. No. 1-81/2004 under sections 143, 147, 148, 323, 427, 504 and 506 of the Indian Penal Code r/w section 135 of the bombay Police Act came to be registered at the Panchavati police station. The trial in that regard is pending in the Court. On 26-6-2004 a complaint came to be lodged by one Shivaji Gangadhar Gavali against the detenu for having assaulted the complainant with sword causing injury on his face and consequently c. R. No. 1-230/2004 under sections 324, 504 and 506 of the Indian penal Code r/w section 135 of the Bombay Police Act came to be registered at the Panchavati police station. The investigation in that had been in progress. On 16-8-2004 the police station at Panchavati received an anonymous telephone call informing that the detenu was abusing and threatening people in the locality with a sword and particularly the shop ke Sahib Singh Dugal v Union of India, A I R 1966 S C 340 the MS Khan v C C Bose, A I R 1972 SC 167 Smt Hemlata Kantilal Shah v State of Maharashtra, 1982 (2) Bom C R 218 1981 (4) scc 647 an away from the spot and the same was recorded in the said Police station station diary entry Nos. 68/2004 and 72/2004. On 18-8-2004 an anonymous complaint was received by the Panchavati police station complaining about the various activities of criminal nature like extortion of money, threats with knife, intimidation and assault by the detenu in the locality. On 13-9-2004 three in-camera statements of different persons - one being of building contractor, another being of a labour contractor and the third being the eye-witness to the various activities of the criminal nature of the detenu came to be recorded. The respondent No. 1 thereafter on 21-10-2004 passed the impugned order of detention and the same was executed on the very day and the detenu was taken into preventive custody. The detenu through his lawyer made a representation on 8-11-2004. The meeting of the Advisory board was scheduled on 19-11-2004. The petitioner approached this Court with the present petition on 22-11-2004.

(3.) The first ground of challenge to the impugned order relates to failure on the part of the respondents to inform the detenu in Marathi language his right to make representation in terms of the provisions of Article 22 (5) of the constitution of India and, therefore, the impugned order being bad in law. While elaborating the said ground of challenge, the learned Advocate appearing for the petitioner submitted that the petitioner is a Maharashtrian person, born and brought up at Panchavati in Nasik District and his mother tongue is Marathi and he has been education upto VIIth standard in Marathi medium and is not well versed with English language. Though the Marathi translation of the grounds of detention and the other documents furnished to the petitioner, the Marathi version of the relevant portion in relation to the right of the detenu to make representation is not correct and in fact the marathi version does not inform the detenu about his right to make representation and therefore the petitioner had lost the earliest opportunity to make an effective representation which resulted in deprivation of exercise of the fundamental right enshrined in Article 22 (5) of the Constitution and therefore applying the law laid down by the Apex Court in (Kamleshkumar Ishwardas patel v. Union of India and Ors. ) , reported in 1995 (3) Bom. C. R. 69 (S. C. ) (C. B) : j. T. 1995 (3) S. C. 639, the order of detention is liable to be quashed. Further, the entitlement to get his right being informed to him being a fundamental right in terms of the provisions of law comprised under Article 22 (5) of the constitution of India, it was mandatory for the detaining authority to inform about the said right to the detenu in Marathi, the language known to the petitioner, and failure thereof has resulted in denying the petitioner to avail the earliest opportunity to make representation. Attention is also drawn to the decision of the Apex Court in the matter of (K. Mohanan v. State of Kerala) , reported in 2000 (10) S. C. C. 222. The learned Advocate for the petitioner has also relied upon the decision of the Division Bench of this Court in the matter of (Ramchandra alias Ramyadada Gopinath Pawar v. R. H. Mendonca and others) , reported in 2000 Cri. L. J. 2114 and an unreported decision in the matter of (Smt. Leena lawrence Lewis v. Shri M. N. Singh and others) , in Criminal writ Petition No. 1011 of 2002 delivered on 20-2-2003 reported in 2003 bom. C. R. (Cri. ) 1307. The learned A. P. P. , on the other hand, has submitted that the essence of Article 22 (5) of the Constitution is that the detenu must get the earliest opportunity to make an effective representation against his detention and therefore he must be apprised of the availability of the said right to him and if availed, the authorities should consider such representation in accordance with the provisions of law, without any delay. Drawing attention to the contents of the translation of the grounds in Marathi in relation to such intimation to the detenu, it was contended on behalf of the respondents that the petitioner was duly apprised of his entitlement to make such a representation and in fact he made such representation and no prejudice was caused in any manner to the petitioner on account of the translation in Marathi of the grounds even assuming that it was not a verbatim translation of the grounds in English. Reliance is sought to be placed in the decisions in the matter of (Wasi Uddin Ahmed v. The District Magistrate, Aligarh, U. P. and others) , reported in 1981 Cri. L. J. 1825 and (Amar alias Amarsingh gulabsingh Rathod v. State of Maharashtra and Anr. ) , reported in 2003 bom. C. R. (Cri. ) (N. B. ) 1573 : 2003 All. M. R. (Cri. ) 1671 in support of the contention in that regard.