[1] IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.2369 OF 2004 Anil Dattu Pawar, Age: 21 years, r/o Sudarshan Colony, Navanath Nagar, Panchavati, Nashik (At present detained in Nasik Road Central Prison, Nasik). .... Petitioner - Versus - 1. Shri Himansu Roy, Commissioner of Police, Nashik. 2. The Addl. Chief Secretary to the Government of Maharashtra, Home Depart- ment (Spl.), Mantralaya, Mumbai. 3. The State of Maharashtra (through the Secretary to the Government of Maharashtra, Home Depart- ment (Spl.), Mantralaya, Mumbai. [2] 4. The Superintendent, Nasik Road Central Prison, Nashik. .... Respondents Shri U.N. Tripathi for the Petitioner. Shri D.S. Mhaispurkar, Addl. Public Prosecutor, for the Respondents. CORAM: CORAM: CORAM: R.M.S. KHANDEPARKAR & P.V. KAKADE, JJ. DATED: DATED: DATED: MARCH 11, 2005 JUDGMENT (Per R.M.S.Khandeparkar, J.): JUDGMENT (Per R.M.S.Khandeparkar, J.): JUDGMENT (Per R.M.S.Khandeparkar, J.): 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 [3] 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 complaint 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.I-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 trial 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 [4] glasses of the complainant’s house and consequently C.R. No.I-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.I-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 keepers were being threatened for extortion of money and the police having rushed to the spot, the detenu ran 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 [5] 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 [6] 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 Kamleshkumar Ishwardas Patel Kamleshkumar Ishwardas Patel v. Union of India & Ors., v. Union of India & Ors., v. Union of India & Ors., reported in JT 1995 (3) SC 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 K. Mohanan v. State K. Mohanan v. State of Kerala, of Kerala, of Kerala, reported in (2000) 10 SCC 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. Ramchandra alias Ramyadada Gopinath Pawar v. Ramchandra alias Ramyadada Gopinath Pawar v. R.H. Mendonca and others, R.H. Mendonca and others, R.H. Mendonca and others, reported in 2000 Cri.L.J. 2114 and an unreported decision in the matter of Smt. Smt. Smt. [7] Leena Lawrence Lewis v. Shri M.N. Singh and others Leena Lawrence Lewis v. Shri M.N. Singh and others Leena Lawrence Lewis v. Shri M.N. Singh and others in Criminal Writ Petition No.1011 of 2002 delivered on 20-2-2003. 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, Wasi Uddin Ahmed v. The District Magistrate, Aligarh, Wasi Uddin Ahmed v. The District Magistrate, Aligarh, U.P. and others, U.P. and others, U.P. and others, reported in 1981 Cri.L.J. 1825 and Amar alias Amarsingh Gulabsingh Rathod v. State of Amar alias Amarsingh Gulabsingh Rathod v. State of Amar alias Amarsingh Gulabsingh Rathod v. State of Maharashtra & Anr., Maharashtra & Anr., Maharashtra & Anr., reported in 2003 All M.R. (Cri.) 1671 in support of the contention in that regard. [8] 4. It is not in dispute that under para 7 of the grounds in English, it was informed to the detenu that he had a right to make representation to the detaining authority against the detention should he desire to make such a representation and he should address the same to the Commissioner of Police, Nasik at the given address therein. It is also not in dispute that under para 8 of the grounds in English, the detenu was informed that he had a right to make representation to the State Government against the detention and he should address the same to the Secretary of the Government of Maharashtra (Preventive Detention) at the address given therein. He was further informed under para 10 of the grounds that if so desired he could make representation to the Advisory Board against the detention and the same should be addressed to the Chairman of the Advisory Board and sent to the address mentioned therein. He was also informed that if so desired, he would be heard in person by the Advisory Board. The Marathi translation of the grounds for paras 7, 8 and 10 respectively also contained intimation to the detenu about his entitlement to make representation to the authority mentioned therein and at the address given thereunder. Undoubtedly, the literal translation of the English word "right" would be "adhikar" in Marathi. Undoubtedly, such a word is not incorporated as far as para No.8 is concerned i.e. in relation to the representation to the [9] State Government. Nevertheless, the translation clearly speaks of availability of opportunity to make the representation to the State Government against the detention and discloses the designation and the address of the authority to whom such representation was required to be sent. The grievance which is sought to be made by the petitioner pertains to the absence of the literal translation of the word "right" in para 8 of the grounds which related to the intimation regarding the entitlement of the detenu to make a representation. 5. The Apex Court in Kamleshkumar Patel’s Kamleshkumar Patel’s Kamleshkumar Patel’s case (supra), while dealing with the right of the detenu under Article 22(5) of the Constitution of India, after taking note of the various earlier decisions and the relevant provisions of law, has held that a person detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 by way of order of preventive detention has a right to make representation to the officer empowered to deal with such representation and such officer is obliged to consider the said representation as expeditiously as possible and failure on his part to do so would result in denial of the right conferred on the person detained to make representation against the order of detention. The Apex Court has also [10] held that such a right to make representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and failure to do so would result in denial of the right of the person detained to make a representation. Undoubtedly, the rule is that though ignorance of law is no excuse and every one is presumed to know the law, once the liberty of a person is sought to be curtailed by way of preventive detention, certainly the constitutional right guaranteed to the person so detained, shall be made available to him effectively. In order that the fundamental right of the person so detained can be effectively exercised by him, it would be necessary to apprise him of the availability of such right to him. Undoubtedly, the provisions of law comprised under Article 22(5) nowhere prescribes any mode or method of communication of such right to the person detained. However, bearing in mind that it is the fundamental right of every person he cannot be denied of his liberty without justifiable cause and by way of procedure known to and established by law, and therefore the intimation of such right to the detenu cannot assume an empty formality. Certainly, therefore, it is an obligation of the detaining authority to [11] apprise the detenu of his right to make representation. At the same time, what method to be adopted for conveying the said right would depend upon the facts of each case and there cannot be any strait-jacket formula to be adopted for the same. In fact, this has been elaborately explained by the Apex Court in its latest judgment in the matter of Prabha Shankar Dubey v. State Prabha Shankar Dubey v. State Prabha Shankar Dubey v. State of Madhya Pradesh of Madhya Pradesh of Madhya Pradesh, reported in 2003 AIR SCW 6592. 6. In Prabha Shankar Dubey’s Prabha Shankar Dubey’s Prabha Shankar Dubey’s case (supra), the Apex Court was dealing with a matter in relation to the requirements of compliance of the provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. It was the grievance on behalf of Prabha Shankar Dubey that merely asking the accused as to whether he would like to be searched by a Gazetted Officer or a Magistrate was not sufficient compliance of the requirements embodied in Section 50 of the NDPS Act and by merely asking the accused what is to be done, would amount to seeking their opinion and not making them aware of their right. Relying on the decision of the Constitutional Bench of the Apex Court in State of State of State of Punjab v. Baldev Singh, Punjab v. Baldev Singh, Punjab v. Baldev Singh, reported in 1999 AIR SCW 2494, it was sought to be argued that the sanctity that is attached to the compliance of the requirements has to be culled out from the references made to the principles under the preventive detention laws. Dealing with the [12] contentions sought to be raised and considering that no specific form is prescribed for conveying the information required to be given under Section 50 of the NDPS Act, it was held that: "What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of S.50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula." It was further held that:- "It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the [13] specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given the primacy." 7. As rightly pointed out by the learned A.P.P., the Apex Court while dealing with the provisions of Article 22(5) of the Constitution in Wasi Uddin Ahmed’s Wasi Uddin Ahmed’s Wasi Uddin Ahmed’s case (supra) held that:- "It is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board." Further, dealing with the expression "and shall afford" in Article 22(5) of the Constitution, it was observed that the said expression has a positive content in the matter of personal liberty and therefore it was held that:- [14] "The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must "apprise" a detenu of his constitutional right under Art. 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under Art. 22(5) would be, in many cases, of little avail if the detenu is not ‘informed’ of this right. The failure to comply with this requirement, however, does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has been in active politics and was, therefore, fully cognisant of his right to make a representation under Art. [15] 22(5) of the Constitution and under Section S.8 of the Act. In fact, the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board." 8. Plain reading of the decision of the Apex Court in Wasi Uddin Ahmed’s case, therefore, would disclose that what is important to safeguard the rights of the detenu under Article 22(5) of the Constitution in relation to the representation which he is entitled to make against the order of detention is to apprise him of his entitlement to make such a representation. The said Article itself nowhere provides as to how to apprise the detenu of such entitlement. Undoubtedly, it is not an empty formality but a matter relating to the question of personal liberty. Being so, due care and caution should be taken by the detaining authority in apprising the detenu of his entitlement to make a representation against the detention order. Bearing this in mind, merely because in the Marathi translation the word "adhikar" (in Marathi) is missing, that itself cannot lead to the conclusion about the failure to comply with the obligation of the detaining authority to apprise the detenu of his entitlement to make representation. In substance, what has been conveyed that has to be seen. [16] If in substance the grounds disclose conveyance of the entitlement of the detenu to him, then it would amount to sufficient compliance of the mandate of Article 22(5) of the Constitution. For that purpose, it may not require literal translation of the English version. In fact, it will depend upon the facts of each case. Besides, in a case where the detenu avails the right of entitlement without much delay, certainly it cannot be said that there has been failure to comply with its obligation on the part detaining authority in apprising the detenu of his right to make the representation. In Wasi Uddin Ahmed’s case, in fact, there was total failure on the part of the detaining authority to mention in the grounds of detention that the detenu had a right to make representation against the order of detention, as also the right of being heard before the Advisory Board, yet the Apex Court held that failure in that regard did not render the order of detention or the continued detention to be illegal as the detenu had availed of such a right of representation by making representation to the concerned authority. In the case in hand, apart from the absence of the word "adhikar" (in Marathi), there is sufficient compliance regarding intimation in English as well as in Marathi to the detenu about his entitlement to make representation to the authorities, including the detaining authority and the State Government and that he would be heard, if so [17] desired, by the Advisory Board. Undoubtedly, in the English version the word "right" has been specifically used. It is also undisputed fact that the detenu has studied upto VIIth standard in Marathi. Undoubtedly, on that count it is sought to be contended that the detenu is not well-versed with English language but at the same time he has stated that he knows Marathi. Considering that there is substantial compliance about the intimation of his entitlement to make representation, also in the Marathi translation, coupled with the fact that the petitioner had in fact made representation on 8-11-2004 through his Advocate, clearly reveal that there was no prejudice caused to the petitioner. That apart, mere delay on the part of the petitioner himself in making the representation cannot enure to his benefit to make grievance about absence of the word "adhikar" in the Marathi translation in relation to intimation of his entitlement to make representation. 9. The Division Bench of this Court, to which one of us (Khandeparkar, J.) was a party, in the matter of Amar Amar Amar alias Amarsingh Gulabsingh Rathod alias Amarsingh Gulabsingh Rathod alias Amarsingh Gulabsingh Rathod (supra), while dealing with similar issue, had held that considering the fact that effective representation to the detaining authority was submitted by the petitioner, mere failure on the part of the detaining authority to furnish the translation would not render the order of detention [18] illegal. 10. The decision in Ramchandra alias Ramyadada Gopinath Ramchandra alias Ramyadada Gopinath Ramchandra alias Ramyadada Gopinath Pawar’s Pawar’s Pawar’s case (supra) was in the peculiar facts of the case where in the Marathi translation, instead of apprising the detenu about his entitlement to make representation, merely informed him that he was given opportunity to make representation, if he so desired. Obviously, that could not amount to appraisal of the right to the detenu about his entitlement to make representation. That is not the case in hand. The Marathi translation clearly specified that he could make representation to the State Government. Besides, the Division Bench dealing with the matter in Ramyadada’s case had no benefit of the decision of the Apex Court in Prabha Shankar Dubey’s case nor the decision in Wasi Uddin Ahmed’s case was brought to its notice. Being so, the said decision in Ramyadada’s case is of no help to the petitioner in the case in hand. 11. The decision in K. Mohanan’s K. Mohanan’s K. Mohanan’s case (supra) was also in the peculiar facts of the case. Therein the mandatory requirements of Section 50 of the NDPS Act were not complied with. The facts, as narrated in para 3 of the decision, disclose that the Sub-Inspector of Police had intercepted K. Mohanan at 4:15 p.m. on 24-9-1990 and had conducted a search on his person and [19] had recovered a packet from the folder of his loincloth and it had contained four small packets of