2013 Supreme(Bom) 2182

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & REVATI MOHITE DERE, JJ.
Sandip Suresh Ghag
Vs.
The Commissioner of Police, Mumbai & Ors.
Criminal Writ Petition No. 3231 of 2013
Decided On: 23rd October, 2013

Headnote:Constitution of India - Article 22(5) - Maharashtra P.D.A. Act, 1981, Section 3(2) - Order of detention. - Since variance in translation of injury report impinges right of petitioner to make effective representation under Article 22(5) against detention order hence detention order cannot be sustained. - The law relating to variance in translation of documents from English language to any other language with which the petitioner/detenu is conversant, is no longer res integra. Court has perused the injury report, in English and its Marathi translation. As far as the 1st column with regard to the ’nature of injury’ is concerned at Serial No. 4, it is stated as ’Blunt trauma’. According to Court, there is no discrepancy/addition as alleged in the Marathi translation, inasmuch as it is correctly translated as "xxxxx". As far as the column with respect to the size of each injury, i.e. column 2 at Serial No. 3, reference to ’2 cm diameter’ injury is amiss in the Marathi translation thereof. Similarly, in the last column of the English injury report i.e. ’Remarks column’ all the entries therein are not found in the Marathi translation thereof. It is pertinent to note that the aforesaid discrepancies, have been stated by the Detaining Authority to be ’inadvertent mistakes’. According to the Detaining Authority, ’no prejudice’ is caused to the detenu on account of the same. The Detaining Authority has also stated in its reply that the material relied upon by him for issuing the order of detention has been furnished to the detenu. The injury report which forms part of the compilation of the documents accompanying the grounds of detention served on the detenu, were relied upon by the Detaining Authority to form his subjective satisfaction. There is nothing in the affidavit filed by the Detaining Authority to even remotely suggest that the Detaining Authority had selectively relied upon some of the documents included in the compilation of documents furnished to the petitioner, much less, excluded the injury report from consideration while forming his subjective satisfaction. Therefore, the concomitant of this finding is that the document i.e. injury report was a vital document and would have to be considered as ’ground’ within the meaning of the ’grounds of detention’. It is pertinent to note that the Apex Court has expounded the meaning of the expression "grounds", within the expansive meaning of the expression "grounds of detention", in the case of Khudiram Das v. The State of West Bengal and others, (1975) 2 SCC 81. It was held in the said case that the expression ’grounds’ means all the basic facts and "materials which have been taken into account" by the Detaining Authority in making the order of detention and on which the detention order is based. That the variance in the Marathi translation of the original injury report which is in English, with regard to the size of the injuries and the blanks in the remarks column, impinges the right of the petitioner/ detenu to make an effective representation under Article 22 (5) of the Constitution of India. In cases relating to preventive detention, the question of ’prejudice’ does not arise, inasmuch as the law relating to preventive detention is visited with stringent consequences and more particularly when the documents are relied upon by the Detaining Authority for forming its subjective satisfaction.

       The petitioner/detenu is justified in contending that his right to make effective representation has been impinged within the meaning of Article 22 (5) of the Constitution of India, as has been expounded by the Apex Court in a catena of decisions. In view of the affidavit of the Detaining Authority, the ’injury report’, was a relied upon document for forming the subjective satisfaction, which is imperative in detaining the detenu to prevent him from indulging in prejudicial activities in future. As the translation of the injury report was not a complete and faithful translation of the original report in English, the petitioner/detenu’s right to make an effective representation could have been impaired. Thus, the detention order deserves to be quashed and set-aside on the said ground and the petition ought to succeed.