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Bombay High CourtIndian Cases

Santosh Giridhar Acharekar vs State Of Maharashtra on 7 September 1987

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Bombay High Court
Santosh Giridhar Acharekar vs State Of Maharashtra on 7 September, 1987
Equivalent citations: 1988CRILJ1893
JUDGMENT
C.S. Dharmadhikari, Ag.C.J.

1. In this petition, the order of detention dated the 16th of April 1987 issued under the provisions of the National Security Act is challenged on various grounds. It is contended by Shri Lonkar, learned Counsel for the Petitioner, that a true translation of the medico-legal document was not supplied to detenu which resulted in non-communication of the ground within the contemplation of Article 22(5) of the Constitution of India. It is the case of the detenu that while supplying the translation in Marathi of an injury report of Balu, certain portion was wholly omitted, which means that there was no communication to the detenu of the recitals of the said document which has prejudicially affected his right to make an effective representation. It support of this contention, the detenu has placed strong reliance upon the decision of this Court in Criminal Writ Petition No. 555 of 1987 (Sunil Ganpat Mangule v. Shri D.S. Soman, Commissioner of Police and Ors.) decided on the 13th of August 1987 by Mehta and Daud, JJ. It was then contended by him that the order of detention is also wholly vitiated because of total non-application of mind. Detenu, though was admitted in the Cooper Hospital, in the grounds of detention at more than one place it is stated by the detaining authority that he was admitted in the K.E.M. Hospital. The detenu was released by the High Court on bail because of non-filing of the chargesheet within 90 days. In the grounds of detention it is stated by the detaining authority that in spite of the Police objection he was granted bail by the High Court and this clearly indicates that the order of detention had been issued in a most cavalier and casual manner without proper application of mind. It was then contended by the detenu that the activities alleged in the grounds of detention cover the area of law and order and in no way can it be said that the said activities are prejudicial to the maintenance of public order. There were two rival groups in the locality and scuffles took place between two groups because of previous enmity. The -assault was restricted to the group rivalry and had nothing to do with the public order as such. In support of this contention, strong reliance was placed upon the decision of the Supreme Court in Slate of U.P. v. Hari Shankar Tewari .

2. On the other hand, it is contended by Smt. Desai, the learned Public Prosecutor, that the omission of certain portion in the Marathi translation of the medico-legal document was wholly inconsequential since the alleged printed matter in injury report was not relevant so far as the present case is concerned. Therefore, in no way it could be said that the Petitioner’s right to make an effective representation was anyway affected. It is also contended by her that the law laid down by this Court in Sunil v. Shri D.S. Soman’s case deserves reconsideration since it is too broadly stated Unless it is shown that the portion omitted from the translation was material and could have prejudicially affected the right of the detenu to make effective representation, only on the basis of an inconsequential omission or mistake an order cannot get vitiated In support of this contention, she has placed reliance upon the decision of the Supreme Court in Lallubhai Jogibhai v. Union of India and a later decision of the Supreme Court in Writ Petition (Criminal) No. 691 of 1986 decided on the 13th of April 1987 (A. Alangarasamy v. State of Tamil Nadu, .

It was then contended by her thaf it is not correct to say that the order has been passed in a most cavalier and casual manner and there was no application of mind to the material placed before the detaining authority. The mistakes, if any, are wholly minor and cannot affect the order of detention. It is also contended by her that having regard to the propensity of the activities of the detenu and the fact that firearms were used in the incidents alleged, the detaining authority was wholly justified in coming to the conclusion that these activities had prejudicially affected the maintenance of public order.

3. With the assistance of the learned Counsel appearing for both sides we have gone through the entire material placed before us. The Division Bench of this Court in Sunil Ganpat Mangule’s case has in terms held that the portion which was omitted from translation in that case had prejudicially affected the right of the detenu to make an effective representation. We have gone through the said judgment. The learned Judges in that case found, that apart from this omission there was an infirmity in the translation of the medico- legal papers. It was also held that since the detenu was only a Marathi knowing person he did not understand the English words used which were merely repeated in the translation also. It is in this context, the Division Bench held that the right of the detenu to make an effective representation was prejudicially affected. The Supreme Court in A. Alangarasamy’s case (1987 Cri LJ 1887) held that if the alleged difference between the two versions is not consequential and is not so different as to cause any prejudice to the detenu, then on that ground alone the order of detention may not get vitiated. However, in the present case, it is not necessary to pursue this aspect of the matter any further, since in our view, the detenu is entitled to be released on other ground.

4. So far as the ground relating to non-application of mind is concerned, we find much substance in this contention of the detenu. Apart from the fact that though in the material placed before the detaining authority it was specifically stated that the detenu was admitted to the Cooper Hospita and this was also the case in the proposal made, from where the detaining authority got that he was admitted to the K.E.M. Hospital is difficult to understand. From the material placed on record, it is also clear that the detenu was released on bail by the High Court since the charge-sheet itself was not filed within 90 days. We have ourselves gone through the original record relating to the bail application filed by the detenu before the High Court. From the record we find that there was no occasion for opposing the bail by the Public Prosecutor in view of this admitted position. If this is so, then the recital in the grounds that in spite of the Police objection he was granted bail by the High Court clearly indicates non-application of mind. The detention is practically based on the incident which took place on the 30th of November 1986. It is alleged by the Police that an associate of the detenu, one Munna fired three rounds hitting Pramod in the stomach and the left thigh. Munna was already released on bail and is also not detained. The second incident dated the 5th of January 1987 will have to be read with incident No. 1. Then alone it could be termed as relevant and substantial. In these circumstances, we have no alternative but to hold that the order of detention has been passed without proper application of mind in a casual and cavalier manner and, therefore, it is vitiated. In the view we have taken, it is not necessary to decide the question as to whether the activities of the detenu were prejudicial to the maintenance of public order or only covered the area of law and order.

5. In the result, therefore, the writ petition deserves to be allowed. Hence, rule is made absolute and the detenu is directed to be released forthwith if not required in any other case.