Cases referred :

1. Ibrahim Ahmad Batti v. State of Gujarat, A.I.R. 1982 S.C. 1500.

2. Mohammed Zakir v. Delhi Administration, A.I.R. 1982 S.C. 696.

3. Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi, A.I.R. 1987 S.C. 1192.

4. Powanammal v. State of Tamil Nadu, A.I.R. 1999 S.C. 618.

5. Hadibandhu Das v. District Magistrate, Cuttack, 1969(I) S.C.R. 227: A.I.R. 1969 S.C. 43.

Advocates appeared :

V.R. Manohar, Sr.A. with S.V. Manohar, for petitioner.

Mrs. Bharti Dangre, A.P.P., for respondents.

Per J.N. PATEL, J.:---The petitioner has filed this petition to seek a writ of habeas corpus challenging the detention of her husband Shri Surjeetsingh son of Chandansingh Maan by the respondent No. 1 under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Amendment of 1996) (for short M.P.D.A. Act), in exercise of powers conferred by sub-section (1) of section 3 of the said Act, read with Government Order Home Department (Special) No. DDS. 1301/44/SPL 3(B), dated 28th April, 2001, directing that Shri Surjeetsingh son of Chandansingh Maan be detained under sub-section (2) of section 3 of the M.P.D.A. Act along with an order that he should be detained in Nagpur Central Prison.

2. The Detaining Authority, on being satisfied that the petitioners husband has been engaging, in contravention of Bombay Prohibition Act, 1949, in activities of a bootlegger, such as possessing, manufacturing, storing, transporting, selling, bottling of illicit liquor, country liquor, potable alcohol and foreign liquor resulting in the commission of violent and desperate acts, such as culpable homicide not amounting to murder, causing disappearance of evidence of offence and giving false information regarding an offence committed, on the basis of material placed before it, and being subjectively satisfied that the detenu has been operating in the districts of Nagpur and Wardha and active at village Chichbhawan under Kalmeshwar Police Station in the illicit activities of bottling liquor without licence and in contravention of the Copy Right Act, which has resulted in massive explosion resulting in the death of three persons engaged by the detenu for the above mentioned illicit activities, and he is also active at hotel Motel Highway (Dhaba), situated on National Highway No. 6 at village Palora under Karanja Police Station in Wardha District, which is a dry district and where he has been concerned with offences, such as possessing, storing, carrying, selling, manufacturing, bottling of illicit liquor, country liquor, potable alcohol and foreign liquor in contravention of Bombay Prohibition Act, 1949, and these activities as a bootlegger have adversely affected the maintenance of public order and even tempo of life and, therefore, the Detaining Authority was subjectively satisfied that the detenu was acting in a manner extremely prejudicial to the maintenance of public order, and in view of his tendencies and/or inclinations reflected in the incidents specified in the grounds of detention, the Detaining Authority was further satisfied that the detenu is likely to indulge in activities extremely prejudicial to the maintenance of public order in future also and that it is necessary to detain him under the M.P.D.A. Act, to prevent him from acting in such a prejudicial manner in future and being so satisfied, issued an order of detention, which is under challenge. Pursuant to passing of the detention order, the petitioners husband came to be detained on 27-7-2001.

3. The detention order got approval of the State Government on 4-8-2001. On 7-8-2001, the matter was referred to the Advisory Board, which gave its opinion on 9-9-2001, and on 17-9-2001, the State Government confirmed the order of detention.

4. Mr. Manohar, the learned Senior Counsel, appearing for the petitioner submitted that the impugned order of detention suffers from various irregularities and lacunae and is susceptible to challenge on various grounds raised by him in the petition. According to Mr. Manohar, the Ground No. (I) raised by the petitioner would suffice to vitiate the detention order. Mr. Manohar submitted that the petitioners husband is a Punjabi and belongs to Sikh religion. His mother tongue is Punjabi and has taken education upto Xth Standard in Hindi medium and that he cannot read and/or understand Marathi. It is submitted that almost all the documents accompanying the Grounds of detention are in Marathi language and as such it is impossible for the detenu to read or understand the said documents, which has deprived him of his right to make an effective representation against the detention order guaranteed to him under Article 22(5) of the Constitution of India, read with section 8 of the M.P.D.A. Act. According to Mr. Manohar non-supply of translations of the Marathi documents in Hindi accompanying the grounds of detention has, thus, rendered the order of preventive detention illegal null and void and as such the same deserves to be revoked.

5. It is pointed out that in the affidavit-in-reply, the Detaining Authority has taken a stand that the detenu is well conversant with Marathi language. However, a translated copy of the detention order in Hindi accompanied with a copy of grounds of detention in Hindi was served on the detenu on 30-7-2001 and an acknowledgment has been obtained from him. In its affidavit-in-reply, the Detaining Authority has taken a stand that though the mother-tongue of the detenu is Punjabi, he knows Hindi language, but since the detenu resides since last thirty years at Nagpur, he is well conversant with Marathi language. This, according to Mr. Manohar, will not mean that the detenu knows Marathi language or that he can read, write and understand the said language. Only being conversant with Marathi language itself does not mean that the detenus right to get the documents translated in his mother-tongue or in the language known to him, i.e. Hindi, can be taken away. The attention of the Court was also drawn to the fact that the Detaining Authority, while swearing the affidavit-in-reply before this Court, categorically stated that the contents of paras 1 to 16 are based on information received from the official record and believed to be true by him. Mr. Manohar submits that nothing is placed on record to show from what information received from the official record, it is disclosed that the detenu is well conversant with the Marathi language and, therefore, this explanation cannot be accepted and the impugned order of detention will have to be quashed and set aside, as the Detaining Authority has failed to communicate to the detenu the material on the basis of which the Detaining Authority arrived at a subjective satisfaction that the detenu is a bootlegger and his activities are prejudicial to public order. For want of furnishing material placed before it, i.e. the documents duly translated in the language known to the detenu, i.e. Hindu, the detenu is deprived of his right to make an effective representation against his detention, which is guaranteed to him under Article 22(5) of the Constitution of India.

6. Mr. Manohar has placed reliance on various decisions rendered by the Supreme Court in support of his contention, such as in the cases of (Ibrahim Ahmad Batti v. State of Gujarat and others)1, A.I.R. 1982 S.C. 1500. (Mohammed Zakir v. Delhi Administration and others)2, A.I.R. 1982 S.C. 696 and (Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi and others)3, A.I.R. 1987 S.C. 1192.

7. Mrs. Dangre, learned Additional Public Prosecutor, submits that the detenu, being a resident of Maharashtra for last thirty years, is well conversant with Marathi language and, therefore, it was not necessary on the part of the Detaining Authority to have furnished him translated copies of the material in the form of documents, on the basis of which the Detaining Authority arrived at a subjective satisfaction that the activities of the detenu as a bootlegger were prejudicial to public order. It is submitted that at the time when the detention order along with grounds of detention with relevant documents was furnished to him, the detenu never expressed it to the Detaining Authority that he was not conversant with the Marathi language and, therefore, his right to make an effective representation does not get impaired. The learned Additional Public Prosecutor is unable to satisfy this Court as to the source of knowledge of the Detaining Authority of the fact that the detenu is well conversant with Marathi language.

8. Sub-section (1) of section 8 of the M.P.D.A. Act provides;

When a person is detained in pursuance of the detention order, the authority making the order shall, as soon as may be, but not later than 5 days from the date of detention, communicate him the grounds on which the order is based and shall afford him an earliest opportunity of making representation to the State against the order of detention.

This is in consonance with the requirements of Article 22(5) of the Constitution of India, which guarantees protection against detention and lays down:

When any person is detained in pursuance of the order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall, afford him the earliest opportunity of making a representation against the order.

The communication of the grounds which is required by the earlier part of the clause, is for the purposes of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause. The communication in this context, therefore, means imparting the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is based and which are in the nature of the charge against him of the prejudicial acts that the authorities attribute to him. Sub-section (1) of section 8 of the M.P.D.A. Act provides the time span of 5 days within which time the authority making the order should communicate to the detenu the grounds on which the order has been made so as to afford him an earliest opportunity of making the representation against the order to the State Government. What flows from these provisions is firstly, that the detenu is entitled along with the grounds of detention the basic facts and material particulars which are the foundation of the order of detention which are required to be communicated to the detenu. It would, therefore, include any information or material on which the order is based or which may have influenced the Detaining Authority in making the order of detention and secondly, such grounds and the basic facts and material on which the Detaining Authority has arrived at a subjective satisfaction must be supplied to the detenu in his own language to make a representation. In the present case, there is compliance of the first requirement i.e. the Detaining Authority has furnished to the detenu the grounds of detention along with the material particulars and facts in the form of set of documents, but has failed to furnish to him material particulars and facts in his own language to enable him to make an effective representation. The documents in the form of material particulars furnished to the detenu are in Marathi language whereas the detenu does not know Marathi though the Detaining Authority has tried to justify furnishing of such documents in Marathi language on the basis that since detenu is resident of Maharashtra, he is conversant with Marathi language, this does not satisfy the test that the documents have to be furnished in the language known to the detenu. We say so as there is nothing on the record to show that the detenu has knowledge of Marathi language. On the other hand, the Detaining Authority itself has furnished to the detenu a Hindi translation of the impugned order and grounds of detention. If the Detaining Authority was having the necessary information that the detenu has sufficient knowledge of Marathi or was conversant with Marathi language, we fail to understand why the translated copies of the order and grounds of detention were furnished to him in Hindi. It is detenus case that he is a Punjabi and knows Hindi language, but not Marathi, and, therefore, non-furnishing of documents relevant to material particulars and facts in the language known to the detenu, has deprived him of his right to make effective representation against his detention and, therefore, the impugned order of detention is to be held illegal and would stand vitiated.

9. In recent case of (Powanammal v. State of Tamil Nadu and another)4, A.I.R. 1999 Supreme Court 618, three Judges Bench of the Supreme Court considered the issue of non-supply of material particulars and facts to the detenu in his own language and held that it causes prejudice to the detenu and her continued detention will have to be held to be illegal. The Supreme Court, Per Majority, observed as under :

7. The contention of Mr. Mani is founded on Clause (5) of Article 22 of the Constitution of India which reads thus :

"22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall, afford him the earliest opportunity of making a representation against the order.

It imposes twin obligations on the authority making the order of detention in respect of a person. They are: (1) to communicate to such person the grounds on which the order of detention has been made and (2) to afford him the earliest opportunity of making a representation against the order.

8. The law relating to preventive detention has been crystallized and the principles are well neigh settled. The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. See (Hadibandhu Das v. District Magistrate, Cuttack)5, 1969(I) S.C.R. 227: A.I.R. 1969 S.C. 43.

9. However, this Court has maintained a distinction between a document which has been relied upon by the Detaining Authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas non-supply of a copy of document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenus complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document, would equally apply to furnishing translated copy of the document in the language known to and understood by the detenu, should the document be in different language.

10. Mrs. Dangre, learned Additional Public Prosecutor, is unable to place before us any authority on the point, which would show that the respondent-Detaining Authority can cure this defect on their part and rectify the error by furnishing translated copies of material particulars and facts contained in the documents furnished to detenu in Marathi language. The learned Additional Public Prosecutor did make a submission that if the detenu is prevented from making an effective representation merely because translated copies of the documents have not been furnished to him in the language known to him, and if directed by this Court, the same can be furnished by the Detaining Authority within seventy-two hours. However, such a request on the part of the learned Additional Public Prosecutor cannot be accepted, as the Detaining Authority ought to have complied with the requirement at the time when the detention order and the grounds of detention were furnished and as prescribed under section 8 of the said Act, copies of the documents, on which the Detaining Authority has relied upon to arrive at a subjective satisfaction, ought to have been furnished within five days from the date of detention.

11. In the circumstances, we find that non-furnishing of copies of documents in the language known to the detenu by the Detaining Authority renders his continued detention illegal, as it affects his right to make an effective representation against such detention. Therefore, the impugned order of detention is quashed and set aside. The detenu be released forthwith, if not required in any other case.

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