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IN THE HIGH COURT OF BOMBAY
Sahai and R.G. Vaidyanatha, JJ.
Shri Surenderakumar Ganeshilal Rajoria.... Petitioner.
Versus
Shri Satish Sahney, Commissioner of Police,
Gr. Bombay and others.... Respondents.
Criminal Writ Petition No. 1348 of 1995, decided on 16-4-1996.
Advocates appeared :
U.N. Tripathi, for the petitioner-Detenue.
S.R. Borulkar, A.P.P., for respondent Nos. 1 and 2.
H.V. Mehta, for respondent No. 3.
The breach of any of the twin rights of the detenu would vitiate the detention order as being violative of Article 22(5) of the Constitution of India.
In the instant case after perusing the original grounds of detention which are in English and their Hindi translation the Court finds that in the latter it has not been mentioned that the petitioner had a right to make a representation at the earliest opportunity but instead what has been stated therein is that he had a right to be represented through a representative before the Central and State Government to make II grievance against the detention order at the earliest opportunity.
It is trite that the translation furnished to the detenu should be a faithful translation of the original. If that is not so it is not in consonance with requirements of Article 22(5) of the Constitution of India and on that ground alone the detention order would be liable to be quashed. The circumstance that the detenu knew a little English would not exonerate the respondents of their obligation to supply a faithful translation. Once a translation is furnished to the detenu naturally he will presume the same to be faithful and hence even assuming that he knows some English he may not peruse the grounds of detention which are in English and instead be guided by the translated grounds.
On the facts of this case there can be no denying the fact that on account of incorrect translation of the grounds of detention, the petitioner was denied of his fundamental right under Article 22(5) of the Constitution of India of making a representation at the earliest opportunity.
The representation made on 8.12.1995 by the petitioners Counsel can by no standards be described as a representation made at the earliest opportunity. It is not disputed by the Counsel for the respondents that the petitioner was served with the translation of the documents in Hindi, including the grounds of detention, on 2.10.1995.
In the instant case since the translation of the grounds of detention furnished to the petitioner was not a faithful one and he could not make a representation at the earliest opportunity both his twin rights contained in Article 22(5) of the Constitution of India referred to in paragraph 5 herein, have been violated and this has rendered his continued detention unsustainable in law.
By means of this writ petition preferred under Article 226 of the Constitution of India, the petitioner (detenu) impugns the detention order dated 27th September, 1995 passed by respondent No. 1 Commissioner of Police, Greater Bombay (now Mumbai) detaining him under the National Security Act.
2.The prejudicial activities of the detenu warranting the issuance of the detention order are contained in the grounds of detention, a copy of which has been annexed as Annexure B to the petition. Since in our view reference to the prejudicial activities is not necessary for the disposal of this petition we are not recapitulating them.
3.The short point on which this petition should succeed has been pleaded by the petitioner's Counsel in grounds 6(C) and 6(D) of the petition. The ground is that the petitioner belongs to Uttar Pradesh and knew Hindi and consequently a Hindi Translation of the documents, including the grounds of detention, was furnished to him. That translation is not faithful and true inasmuch as whereas in the original grounds of detention which are in English, in paragraph 8 it has been mentioned that the petitioner is being informed that he had a right to make representation against the detention order to the Central and State Governments at the earliest opportunity but in the Hindi translation what has been mentioned is that he is being informed that he had a right to be represented through a representative before the Central and the State Governments and make a grievance against the detention order at the earliest opportunity. It is urged that on account of this infirmity in the Hindi translation of the grounds of detention the petitioner's fundamental right, to make a representation to the Central and State Governments at the earliest opportunity, which flows from Article 22(5) of The Constitution of India, has been violated rendering his continued detention unsustainable in law.
4.Ground No. 6(C) and 6(D) of the petition have been replied to in the return filed by Mr. R.D. Tyagi the present Commissioner of Police, Mumbai (Mr. Satish Sahney, the then Commissioner of Police having been transferred) in paragraphs 12 and 13. It has been averred in paragraph 12 that it is wrong to assert that the Hindi translation was not to the effect that the petitioner had a right to make a representation to the Central Government and the State Government at the earliest opportunity. In the same paragraph it has been averred that the petitioner knew some English and since in the original grounds of detention which were in English, it was specifically mentioned that he could make a representation at the earliest opportunity to the Central and State Governments he can make no grievance on that score. In the same paragraph it has also been mentioned that after all the petitioner through an Advocate of his did make a representation to the Central Government on 8-12-1995 and hence availed of the aforesaid right. In paragraph 13 it has been stated that English was one of the subjects which the petitioner had in his High School and therefore, he could make out from the grounds of detention that he had a right to make a representation to the Central and State Governments at the earliest opportunity. In sum and substance what has been stated is that there has been no infringement of the petitioner's fundamental right to make a representation to the Central and the State Governments at the earliest opportunity.
5.Article 22(5) of the Constitution of India 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
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