Shri Brijbihari Shivdarshan Shukla Vs. Shri R.H. Mendonca, Commissioner of Police, Thane and Others - Court Judgment

Excerpt:
national security act, 1980: section 3(2), 9(1) and constitution of india, 1950 article 22(5), 226 - grounds of detention alongwith its hindi translation served - translation not conveying true and faithful meaning - detenue not made aware of his constitutional right - authorities do not spell out corresponding duty of consideration of application and communication of decision - lacuna in the ground of detention - detention liable to be set aside. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - 1, the then commissioner of police, thane was satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it was necessary to make an order directing the petitioner to be detained under the national security act and, therefore, the said order was issued directing that the petitioner should be detained under the said act. it is further mentioned in the grounds of detention that the detenu and his associates moved about the said locality armed with deadly weapons such as sword, knife, iron bar, hockey-stick, sword-stick and used the said weapons in the commission of offences like attempt to murder, brutal assault, rioting, house trespass and criminal intimidation by giving threats and that the action taken against him under the ordinary law of the land was found to be inadequate to prevent him from indulging in criminal activities which were prejudicial to the maintenance of public order. it is further stated that he had studied upto 10th standard in hindi medium and was well conversant with hindi language and knew no other language and that the hindi translation of the order and the grounds of detention furnished to the detenu were not the correct and true translation of the original order and the grounds which were issued in english. it is complained that in many places, while translating the order and the grounds in hindi, there were omissions and additions in the translation as a result of which the detenu was deprived of his right of making an effective representation and as such his constitutional right guaranteed under article 22(5) of the constitution of india was violated. 4. in para 11 (c) of the petition the particulars of various mistakes committed in the translation, both of omissions as well as wrong translation, have been given. it would be pertinent to note here that the words like 'i claim privilege' do not at all find place in the hindi translation furnished to the detenu, which is at page 29 of the paper-book of this petition. secondly the words like 'i hereby communicate to you grounds' appearing in the first para of the grounds of detention have been wrongly translated by translating the word 'communicate' in hindi as 'aadesh' and 'hukum',even the sentence, i hereby communicate to you the grounds' has not at all been properly or correctly translated in the hindi translation. as pointed out hereinabove the hindi translation furnished to the detenu blisters with several mistakes both of omission as well as wrong translation. the right of the detenu as enshrined under clause (5) of article 22 of the constitution is too well established to require citing of the judicial authorities on the point. this argument cannot sustain in the very facts of the case as the detaining authority having been satisfied that the detenu was not in a position to understand english clearly he was furnished with the hindi translation. 150. in that case the detenu who was not very well conversant with the english language was furnished with hindi translation of the order and the grounds. tripathi appearing on behalf of the petitioner-detenue that the same word 'satisfaction' was differently translated in the hindi translation sometimes as 'samadhan' which conveys its correct meaning but at other places, especially in the translation of the grounds, it had been wrongly translated by using various expressions like 'jankari',yakin',dharna' in hindi. 8. akashi, reported in (1994)96bomlr893 giving the connotation of the phrase 'public order' and equating it with phrases like 'public peace',public safety and 'tranquility' etc.orders.s. parkar, j.1. this writ petition filed under article 226 of the constitution of india challenges the order of detention dated 25th march 1996 issued by the respondent no. 1, the commissioner of police, thane under the provisions of section 3(2) of the national security act, 1980. the impugned order is annexed as annexure 'a' to the petition. the said order of detention was served on the petitioner-detenu on 30th march 1996. at the time of detention of the petitioner on 30th march 1996 the petitioner was served along with the aforesaid order of detention the grounds of detention dated 25th march 1996 which are annexed as annexure 'b' to this petition. the said order mentions that the respondent no. 1, the then commissioner of police, thane was satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it was necessary to make an order directing the petitioner to be detained under the national security act and, therefore, the said order was issued directing that the petitioner should be detained under the said act.2. in the grounds of detention served on the petitioner it is mentioned that the criminal record of the detenu showed that he did not have ostensible means of livelihood and was having criminal record in ulhasnagar police station and that he had formed a gang of his associates, about nine in number, in whose company he was indulging in violent criminal activities and had become a potential danger to the safety of law abiding and peace loving citizens of the localities of karnala nehru nagar, dhobighat, fakadmandi, birla gate, tilak nagar, ulhasnagar and adjoining areas thereto falling in the jurisdiction of ulhasnagar police station. it is further mentioned in the grounds of detention that the detenu and his associates moved about the said locality armed with deadly weapons such as sword, knife, iron bar, hockey-stick, sword-stick and used the said weapons in the commission of offences like attempt to murder, brutal assault, rioting, house trespass and criminal intimidation by giving threats and that the action taken against him under the ordinary law of the land was found to be inadequate to prevent him from indulging in criminal activities which were prejudicial to the maintenance of public order.the grounds of detention also mention the chapter cases and other cases which had been registered against the detenu.3. the aforesaid detention order has been challenged by the detenu on various grounds which are mentioned in paragraph 11 of the petition. since we are convinced that the order of detention is liable to be quashed and set aside on the ground which is mentioned in clause c of para 11 of the petition viz. that there was non-communication of the grounds ol detention to the petitioner in the language understood by the petitioner and, therefore, there was non-compliance with article 22(5) of the constitution of india, there is no need to consider the other grounds which are raised in the petition. the said ground mentions that the petitioner hailed from the state of uttar pradesh and that his mother tongue was hindi. it is further stated that he had studied upto 10th standard in hindi medium and was well conversant with hindi language and knew no other language and that the hindi translation of the order and the grounds of detention furnished to the detenu were not the correct and true translation of the original order and the grounds which were issued in english. according to the said ground the hindi translation which was furnished to the detenu did not convey the true and faithful meaning and is diametrically opposite to the original text in english. it is complained that in many places, while translating the order and the grounds in hindi, there were omissions and additions in the translation as a result of which the detenu was deprived of his right of making an effective representation and as such his constitutional right guaranteed under article 22(5) of the constitution of india was violated. it is contended that the furnishing of wrong and incomplete translation amounted to non-communication of grounds of detention and thereby violated both the facets of right conferred under article 22(5) of the constitution of india.4. in para 11 (c) of the petition the particulars of various mistakes committed in the translation, both of omissions as well as wrong translation, have been given. it has been mentioned in the said ground that the phrase 'acting in any manner' used in the first paragraph of the detention order dated 25th march 1996 annexed as annexure 'a' to this petition had not been translated at all in the translation which was served on the detenu. in other words, the aforesaid phrase has been omitted in the translation. the other instances of omissions, which pertain to the grounds of detention, are as follows.it has been pointed out that the very first paragraph of the grounds of detention dated 25th march 1996 annexed as annexure 'b' to this petition had not been correctly translated and the translation did not convey the meaning which was sought to be communicated to the detenu in its pristine text which is in english. it would be pertinent to note here that the words like 'i claim privilege' do not at all find place in the hindi translation furnished to the detenu, which is at page 29 of the paper-book of this petition. secondly the words like 'i hereby communicate to you grounds' appearing in the first para of the grounds of detention have been wrongly translated by translating the word 'communicate' in hindi as 'aadesh' and 'hukum', even the sentence, 'i hereby communicate to you the grounds' has not at all been properly or correctly translated in the hindi translation. secondly the words tike 'right to make representation' appearing in para 7 of the grounds of detention have been omitted from the hindi translation which appears at page 35 of the paper-book of this writ petition. similarly the words appearing in para 7 of the grounds of detention, 'you shall be afforded the earliest opportunity' also do not find place in the hindi translation furnished to the detenu. it is also brought to our notice that the words, 'you shall be heard in person' appearing in paragraph 10 of the grounds of detention do not find place in the hindi translation at page 35 of the paperbook of this petition. similarly the words 'make a reference' in para 8 of the grounds of detention are also missing from the hindi translation.5. mr. tripathi has also brought to our notice many words mentioned in the grounds of detention which have been wrongly translated in hindi. for instance the words 'satisfaction' used in paras 5 and 6 of the grounds of detention have been wrongly translated as 'jankari, 'yakin' and 'dhama' in the corresponding hindi translation. it is pertinent to note that the same word was used in the order of detention itself in annexure 'a' and there it was correctly translated as 'samadhan' while translating the said order of detention in hindi which is annexed at page 16 to this petition. secondly the word 'communicate' appearing in the first paragraph of the grounds of detention has been wrongly translated in hindi as 'aadesh' and 'hukum'. the word 'representation' used in paragraph 7 of the grounds of detention has been wrongly translated as 'appeal' in hindi while the phrase 'public interest' used in the first paragraph of the grounds of detention has been wrongly translated in hindi as 'logonke surakshitate ke liye'. similarly the words 'perpetual danger to the society at large' used in paragraph 5 of the grounds of detention have been wrongly translated in hindi which appears at page 34 of the paper book. it is also pointed out that the reference to paragraph number 4(g) made in the first paragraph of grounds of detention had been wrongly translated in hindi as 4(k). mr. tripathi has also pointed out to us many mistakes in the hindi translation of the medical certificates which were served on the detenu along with the grounds of detention.6. from the aforesaid omissions and mistakes, it appears that though some of the instances of omissions or wrong translations may not be material yet certain omissions and wrong translations are vital in the sense that it would amount to non-communication of the grounds of detention in the language known or understood by the detenu as required by law. we may mention, in particular, that the omission to inform the detenu of his right to make a representation is a vital flaw in the translation which may amount to non communication of this right to the detenu, which the authorities were under obligation to inform him as held in several decisions of the apex court.7. the aforesaid contention raised on behalf of the detenu is sought to be met by the detaining authority, the commissioner of police in paragraph 10 of his affidavit-in-reply dated 22nd october 1996 by stating that the detenu had studied upto 10th standard and in his statement recorded after his detention, the detenu had stated that he understood english, hindi and marathi languages. it is further stated by the commissioner of police that the detenu had made representation on 25-4-96 through his advocate and after making the said representation the advocate for the detenu addressed a letter to the commissioner of police and state of maharashtra with a request to furnish to him the true and correct translations of the grounds and the documents. it is further claimed in the said affidavit that the translation furnished to the detenu was correct.8. we do not agree with the aforesaid reply filed by the detaining authority. as pointed out hereinabove the hindi translation furnished to the detenu blisters with several mistakes both of omission as well as wrong translation. the right of the detenu as enshrined under clause (5) of article 22 of the constitution is too well established to require citing of the judicial authorities on the point. the judgments of our apex court galore on the said right. there are two facets of the right under clause (5) of article 22 of the constitution. firstly the authority making the detention order has to communicate to the detenue the grounds on which the order of detention had been made and secondly the authority has to afford him the earliest opportunity of making representation against the said order. it has been held by the supreme court in cases too numerous to refer to all here that the grounds include all the material relied on by the detaining authority which is required to be served contemporaneously with the service of the detention order on the detenu and the said communication must be in the language known and understood bythe detenu. the other facet of the said clause is that the detenu must be given the earliest opportunity to make the representation against the said order.9. dealing with the said right of the detenu enshrined in article 22(5) of the constitution, the division bench of this court in (criminal writ petition no. 825 of 1988 decided on 21st september 1988 by justice r.a. jahagirdar and justice v.p. tipnis), (unreported), had pointed out that the first part of the article 22(5) of the constitution was more in the nature of a duty while the second part of article 22(5) was more in the nature of the right given to a detenu. it cannot be gainsaid that every right is attended with a corresponding duty and to that extent the two facets of article 22(5) are interrelated i.e. conferring right on the detenu in the second part and imposing corresponding duty on the authorities in the first part of article 22(5) of the constitution. as observed in para 8 of the said decision, '...though the furnishing of the grounds of detention is necessary to enable the detenu to make a representation, it does not mean that the furnishing of the grounds of detention is only for the purpose of making a representation under the second part of article 22(5) of the constitution...'. it is clear that the duty cast on the authorities under the first part of article 22(5) is absolute in the sense that irrespective of the fact whether the detenu chooses to make representation or not, or any prejudice is caused to him or not the communication of the grounds to the detenu is a mandatory obligation cast on the detaining authority.10. similarly when the right is conferred in the second part of the article 22(5) of the constitution on the detenu to make a representation, there is a corresponding duty cast on the authorities to make the detenu aware of this right by informing him about the said right. it is for this reason that in every detention order a formal and stereotype clause is inserted, as in para 7 of the grounds of detention in this case, and the detenu is informed that he had a right to make a representation to the various authorities named therein. this is not an empty formality but is held to be an obligation which necessarily follows from the right enshrined in article 22(5) of the constitution.11. while referring to the right of the detenu to make representation and corresponding duty on the authority to inform him of the said right the constitution bench of the supreme court in the case of kamleshkumar ishwardas patel v. union of india & others, : 1996(53)ecc123 observed in paragraph 14 of the judgment as follows :'...the right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.'12. surprisingly the detenu in this case was not made aware of this constitutional right of his as the hindi translation served on the detenu of the grounds of detention did not make a mention of this right. it was argued on behalf of the respondents by the learned a.p.p. mr. patil that although there was no mention of the said right as such in the hindi translation but it was stated in the hindi translation that he could demand justice from the concerned authorities by using the words in hindi translation as 'nyaya' and 'daad'. in other words according to the learned a.p.p. such right could be inferred or gathered from the words used in hindi. we cannot agree with this submission of mr. patil for it is one thing to inform the detenu that he has a right to make a representation and it is altogether different thing to tell him that he could apply for or demand justice from or appeal to the concerned authorities. when the detenu has a right it is always attended with a corresponding duty cast on the authorities to consider his representation without delay and to communicate the decision thereon to the detenu again without any inordinate and unexplained delay. in this case the detenu was not apprised of this vital right guaranteed to him by the constitution of india, as held by the supreme court, though the detaining authority was under obligation to do so. he was only told that he might or he could demand justice or apply for justice to the concerned authorities.13. it cannot be doubted that merely telling the detenu that he might appeal or could make an application to the authorities concerned for justice was not the same thing as informing him that he had right to make a representation which carries with it the corresponding duty on the authorities to consider that representation and communicate to him the decision of the authorities on such representation without inordinate delay. telling the detenu that he could make an application for justice to the authorities does not spell out or imply the corresponding duty on the authorities, firstly to consider his application and secondly to communicate to him the decision thereon.14. mr. patil also tried to contend that since the detenu had studied upto 10th standard, although through hindi medium, he was expected to know english. this argument cannot sustain in the very facts of the case as the detaining authority having been satisfied that the detenu was not in a position to understand english clearly he was furnished with the hindi translation. secondly, once the hindi translation had been furnished to the detenu he was entitled to rely on the hindi translation only and presume that the translation furnished to him was the correct translation.15. mr. tripathi appearing on behalf of the petitioner has cited before us the recent decision of the division bench of this court on this point in the case of surendrakumar g. rajoria v. satish sahney, reported in 1997 bom.c.r. 87 : 1996(4) all m.r. 150. in that case the detenu who was not very well conversant with the english language was furnished with hindi translation of the order and the grounds. dealing with the similar contention as raised in this case the division bench of this court had observed in para 7 thereof as follows :'...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..'it would be relevant to quote observations made in para 17 of the judgment of the earlier division bench of this court in the case of smt. shashikala k. rane v. union of india & ors., reported in : 1987(1)bomcr617 which are to the following effect:para 17. 'if the detaining authority thought it expedient to furnish the translations even though the detenu knew english, then the detenu was entitled to take advantage of the translations and to point out that the translation which he relied upon did not convey a faithful meaning of the original grounds or the declaration under section 9(1) of the act and were such as to make it impossible for the detenu to communicate and on that ground also the order ought to be struck down.'we are in respectful agreement with the observations of this court made in the above cited two judgments.16. mr. tripathi has also cited before us yet another judgment of the constitution bench of the supreme court in the case of harikisan v. state of maharashtra, reported in : air1962sc911 dealing with the right to communication of the grounds of detention in the language with which the detenu is conversant. rejecting the argumentsof the learned attorney general inter alia that since english was the official language of the country and the grounds were otherwise explained to the detenue by the inspector of police in hindi it was not necessary to furnish the hindi translation to the detenu, the constitution bench observed in para 8 as follows :'...but to a person who is not so conversant with the english language, in order to satisfy the requirements of the constitution, the detenue must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.'while making the above observations the constitution bench of the supreme court relied on the earlier decision of the supreme court in the case of state of bombay v. atma ram sridhar : 1951crilj373 dealing with clause (5) of article 22 of the constitution.17. in the aforesaid view which has been taken by the apex court consistently right from the year 1951, the decision of the supreme court cited by mr. patil on behalf of the respondents in the case of lawrence d'souza v. bombay state : 1956crilj935 will be of no assistance which is an authority on the point that the right under article 22(5) of the constitution to furnish particulars to the detenu is subject to the limitation laid down under clause (6) of article 22 of the constitution i.e. the disclosure of particulars of certain facts cannot be made if the disclosure thereof was considered to be against the public interest. in this case no question of public interest arises as regards the communication to the detenu of his right to make representation.18. similarly mr. patil's reliance on the decision of the supreme court in the case of godavari v. state of maharashtra : 1964crilj222 also has no application to the present case as in that case the court was considering the correctness of the translation of the grounds in which the expression used in the english version was variously expressed using synonymous words in the translation. the said authority will not be applicable in this case as here we are considering the question of informing the detenu of his right to make a representation which necessarily carries with it the corresponding obligation on the concerned authorities as observed earlier. secondly in this case it was pointed out by mr. tripathi appearing on behalf of the petitioner-detenue that the same word 'satisfaction' was differently translated in the hindi translation sometimes as 'samadhan' which conveys its correct meaning but at other places, especially in the translation of the grounds, it had been wrongly translated by using various expressions like 'jankari', 'yakin', 'dharna' in hindi. if the said word had been translated by using different synonymous expressions conveying the same meaning in hindi one could understand and in that case mr. patil's reliance on the decision of the supreme court in the case of godavari v. state of maharashtra (supra) would have been justified. here the word, 'satisfaction' is not translated by using synonymous expressions or words in hindi but using different words conveying altogether different or incorrect meanings.19. the other decision of the supreme court in the case of hawabi sayed arif sayed hanif v. l. hmingliana : 1993crilj172 cited by mr. patil concerning typing mistake will also have no application to the facts of this case. similarly the reference to the decision of the supreme court in the case of a. alangarasamy v. state of tamil nadu : 1987crilj1887 will have no application. in the said case the question was about variation between two versions in tamil translation of the words used in english and the supreme court held that the variation between the two versions did not cause prejudice to the detenu. here we are concerned with the non-compliance with the mandatory duty of the detaining authority to inform the detenu of his right to make representation to the concerned authorities. similarly the reliance on the decision of the division bench of the this court in the case of kamlakar shankar patil v. 8. akashi, reported in : (1994)96bomlr893 giving the connotation of the phrase 'public order' and equating it with phrases like 'public peace', 'public safety and 'tranquility' etc. will have no application either.20. as we have observed earlier, apart from the very many mistakes committed in translating the grounds of detention in hindi and the omissions made therein, the vital omission made in the translation is that the hindi version of the grounds did not communicate or inform the detenu of his fundamental constitutional right to make representation which carries with it the corresponding obligation on the authorities. in view of the said lacuna in the grounds of detention, the order of detention and continued detention of the detenue is illegal and is; therefore, liable to be quashed and set aside. since we are inclined to allow this petition on this ground, mr. tripathi appearing on behalf of the petitioner was not heard on the other grounds raised in the petition.21. for the aforesaid reasons we allow this petition and make the rule absolute in terms of prayer clause (b) of the petition. consequently we direct that the petitioner detenu be released forthwith and set at liberty unless required in any other case.22. petition allowed.

Judgment:
ORDER

S.S. Parkar, J.

1. This writ petition filed under Article 226 of the Constitution of India challenges the order of detention dated 25th March 1996 issued by the respondent No. 1, the Commissioner of Police, Thane under the provisions of section 3(2) of the National Security Act, 1980. The impugned order is annexed as Annexure 'A' to the petition. The said order of detention was served on the petitioner-detenu on 30th March 1996. At the time of detention of the petitioner on 30th March 1996 the petitioner was served along with the aforesaid order of detention the grounds of detention dated 25th March 1996 which are annexed as Annexure 'B' to this petition. The said order mentions that the Respondent No. 1, the then Commissioner of Police, Thane was satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it was necessary to make an order directing the petitioner to be detained under the National Security Act and, therefore, the said order was issued directing that the petitioner should be detained under the said Act.

2. In the grounds of detention served on the petitioner it is mentioned that the criminal record of the detenu showed that he did not have ostensible means of livelihood and was having criminal record in Ulhasnagar Police Station and that he had formed a gang of his associates, about nine in number, in whose company he was indulging in violent criminal activities and had become a potential danger to the safety of law abiding and peace loving citizens of the localities of Karnala Nehru Nagar, Dhobighat, Fakadmandi, Birla Gate, Tilak Nagar, Ulhasnagar and adjoining areas thereto falling in the jurisdiction of Ulhasnagar Police Station. It is further mentioned in the grounds of detention that the detenu and his associates moved about the said locality armed with deadly weapons such as sword, knife, iron bar, hockey-stick, sword-stick and used the said weapons in the commission of offences like attempt to murder, brutal assault, rioting, house trespass and criminal intimidation by giving threats and that the action taken against him under the ordinary law of the land was found to be inadequate to prevent him from indulging in criminal activities which were prejudicial to the maintenance of public order.The grounds of detention also mention the chapter cases and other cases which had been registered against the detenu.

3. The aforesaid detention order has been challenged by the detenu on various grounds which are mentioned in paragraph 11 of the petition. Since we are convinced that the order of detention is liable to be quashed and set aside on the ground which is mentioned in Clause C of para 11 of the petition viz. that there was non-communication of the grounds ol detention to the petitioner in the language understood by the petitioner and, therefore, there was non-compliance with Article 22(5) of the Constitution of India, there is no need to consider the other grounds which are raised in the petition. The said ground mentions that the petitioner hailed from the State of Uttar Pradesh and that his mother tongue was Hindi. It is further stated that he had studied upto 10th standard in Hindi medium and was well conversant with Hindi language and knew no other language and that the Hindi translation of the order and the grounds of detention furnished to the detenu were not the correct and true translation of the original order and the grounds which were issued in English. According to the said ground the Hindi translation which was furnished to the detenu did not convey the true and faithful meaning and is diametrically opposite to the original text in English. It is complained that in many places, while translating the order and the grounds in Hindi, there were omissions and additions in the translation as a result of which the detenu was deprived of his right of making an effective representation and as such his constitutional right guaranteed under Article 22(5) of the Constitution of India was violated. It is contended that the furnishing of wrong and incomplete translation amounted to non-communication of grounds of detention and thereby violated both the facets of right conferred under Article 22(5) of the Constitution of India.

4. In para 11 (C) of the petition the particulars of various mistakes committed in the translation, both of omissions as well as wrong translation, have been given. It has been mentioned in the said ground that the phrase 'acting in any manner' used in the first paragraph of the detention order dated 25th March 1996 annexed as Annexure 'A' to this petition had not been translated at all in the translation which was served on the detenu. In other words, the aforesaid phrase has been omitted in the translation. The other instances of omissions, which pertain to the grounds of detention, are as follows.

It has been pointed out that the very first paragraph of the grounds of detention dated 25th March 1996 annexed as Annexure 'B' to this petition had not been correctly translated and the translation did not convey the meaning which was sought to be communicated to the detenu in its pristine text which is in English. It would be pertinent to note here that the words like 'I claim privilege' do not at all find place in the Hindi translation furnished to the detenu, which is at page 29 of the paper-book of this petition. Secondly the words like 'I hereby communicate to you grounds' appearing in the first para of the grounds of detention have been wrongly translated by translating the word 'communicate' in Hindi as 'Aadesh' and 'Hukum', Even the sentence, 'I hereby communicate to you the grounds' has not at all been properly or correctly translated in the Hindi translation. Secondly the words tike 'right to make representation' appearing in para 7 of the grounds of detention have been omitted from the Hindi translation which appears at page 35 of the paper-book of this writ petition. Similarly the words appearing in para 7 of the grounds of detention, 'you shall be afforded the earliest opportunity' also do not find place in the Hindi translation furnished to the detenu. It is also brought to our notice that the words, 'you shall be heard in person' appearing in paragraph 10 of the grounds of detention do not find place in the Hindi translation at page 35 of the paperbook of this petition. Similarly the words 'make a reference' in para 8 of the grounds of detention are also missing from the Hindi translation.

5. Mr. Tripathi has also brought to our notice many words mentioned in the grounds of detention which have been wrongly translated in Hindi. For instance the words 'satisfaction' used in paras 5 and 6 of the grounds of detention have been wrongly translated as 'Jankari, 'Yakin' and 'Dhama' in the corresponding Hindi translation. It is pertinent to note that the same word was used in the order of detention itself in Annexure 'A' and there it was correctly translated as 'Samadhan' while translating the said order of detention in Hindi which is annexed at page 16 to this petition. Secondly the word 'communicate' appearing in the first paragraph of the grounds of detention has been wrongly translated in Hindi as 'Aadesh' and 'Hukum'. The word 'representation' used in paragraph 7 of the grounds of detention has been wrongly translated as 'Appeal' in Hindi while the phrase 'public interest' used in the first paragraph of the grounds of detention has been wrongly translated in Hindi as 'Logonke Surakshitate ke Liye'. Similarly the words 'perpetual danger to the society at large' used in paragraph 5 of the grounds of detention have been wrongly translated in Hindi which appears at page 34 of the paper book. It is also pointed out that the reference to paragraph number 4(g) made in the first paragraph of grounds of detention had been wrongly translated in Hindi as 4(k). Mr. Tripathi has also pointed out to us many mistakes in the Hindi translation of the medical certificates which were served on the detenu along with the grounds of detention.

6. From the aforesaid omissions and mistakes, it appears that though some of the instances of omissions or wrong translations may not be material yet certain omissions and wrong translations are vital in the sense that it would amount to non-communication of the grounds of detention in the language known or understood by the detenu as required by law. We may mention, in particular, that the omission to inform the detenu of his right to make a representation is a vital flaw in the translation which may amount to non communication of this right to the detenu, which the authorities were under obligation to inform him as held in several decisions of the Apex Court.

7. The aforesaid contention raised on behalf of the detenu is sought to be met by the Detaining Authority, the Commissioner of Police in paragraph 10 of his affidavit-in-reply dated 22nd October 1996 by stating that the detenu had studied upto 10th standard and in his statement recorded after his detention, the detenu had stated that he understood English, Hindi and Marathi languages. It is further stated by the Commissioner of Police that the detenu had made representation on 25-4-96 through his Advocate and after making the said representation the Advocate for the detenu addressed a letter to the Commissioner of Police and State of Maharashtra with a request to furnish to him the true and correct translations of the grounds and the documents. It is further claimed in the said affidavit that the translation furnished to the detenu was correct.

8. We do not agree with the aforesaid reply filed by the Detaining Authority. As pointed out hereinabove the Hindi translation furnished to the detenu blisters with several mistakes both of omission as well as wrong translation. The right of the detenu as enshrined under Clause (5) of Article 22 of the Constitution is too well established to require citing of the judicial authorities on the point. The judgments of our Apex Court galore on the said right. There are two facets of the right under Clause (5) of Article 22 of the Constitution. Firstly the authority making the detention order has to communicate to the detenue the grounds on which the order of detention had been made and secondly the authority has to afford him the earliest opportunity of making representation against the said order. It has been held by the Supreme Court in cases too numerous to refer to all here that the grounds include all the material relied on by the detaining authority which is required to be served contemporaneously with the service of the detention order on the detenu and the said communication must be in the language known and understood bythe detenu. The other facet of the said clause is that the detenu must be given the earliest opportunity to make the representation against the said order.

9. Dealing with the said right of the detenu enshrined in Article 22(5) of the Constitution, the Division Bench of this Court in (Criminal Writ Petition No. 825 of 1988 decided on 21st September 1988 by Justice R.A. Jahagirdar and Justice V.P. Tipnis), (unreported), had pointed out that the first part of the Article 22(5) of the Constitution was more in the nature of a duty while the second part of Article 22(5) was more in the nature of the right given to a detenu. It cannot be gainsaid that every right is attended with a corresponding duty and to that extent the two facets of Article 22(5) are interrelated i.e. conferring right on the detenu in the second part and imposing corresponding duty on the authorities in the first part of Article 22(5) of the Constitution. As observed in para 8 of the said decision, '...Though the furnishing of the grounds of detention is necessary to enable the detenu to make a representation, it does not mean that the furnishing of the grounds of detention is only for the purpose of making a representation under the second part of Article 22(5) of the Constitution...'. It is clear that the duty cast on the authorities under the first part of Article 22(5) is absolute in the sense that irrespective of the fact whether the detenu chooses to make representation or not, or any prejudice is caused to him or not the communication of the grounds to the detenu is a mandatory obligation cast on the detaining authority.

10. Similarly when the right is conferred in the second part of the Article 22(5) of the Constitution on the detenu to make a representation, there is a corresponding duty cast on the authorities to make the detenu aware of this right by informing him about the said right. It is for this reason that in every detention order a formal and stereotype clause is inserted, as in para 7 of the grounds of detention in this case, and the detenu is informed that he had a right to make a representation to the various authorities named therein. This is not an empty formality but is held to be an obligation which necessarily follows from the right enshrined in Article 22(5) of the Constitution.

11. While referring to the right of the detenu to make representation and corresponding duty on the authority to inform him of the said right the Constitution Bench of the Supreme Court in the case of Kamleshkumar Ishwardas Patel v. Union of India & others, : 1996(53)ECC123 observed in paragraph 14 of the judgment as follows :

'...The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.'

12. Surprisingly the detenu in this case was not made aware of this constitutional right of his as the Hindi translation served on the detenu of the grounds of detention did not make a mention of this right. It was argued on behalf of the respondents by the learned A.P.P. Mr. Patil that although there was no mention of the said right as such in the Hindi translation but it was stated in the Hindi translation that he could demand justice from the concerned authorities by using the words in Hindi translation as 'Nyaya' and 'Daad'. In other words according to the learned A.P.P. such right could be inferred or gathered from the words used in Hindi. We cannot agree with this submission of Mr. Patil for it is one thing to inform the detenu that he has a right to make a representation and it is altogether different thing to tell him that he could apply for or demand justice from or appeal to the concerned authorities. When the detenu has a right it is always attended with a corresponding duty cast on the authorities to consider his representation without delay and to communicate the decision thereon to the detenu again without any inordinate and unexplained delay. In this case the detenu was not apprised of this vital right guaranteed to him by the Constitution of India, as held by the Supreme Court, though the Detaining Authority was under obligation to do so. He was only told that he might or he could demand justice or apply for justice to the concerned authorities.

13. It cannot be doubted that merely telling the detenu that he might appeal or could make an application to the authorities concerned for justice was not the same thing as informing him that he had right to make a representation which carries with it the corresponding duty on the authorities to consider that representation and communicate to him the decision of the authorities on such representation without inordinate delay. Telling the detenu that he could make an application for justice to the authorities does not spell out or imply the corresponding duty on the authorities, firstly to consider his application and secondly to communicate to him the decision thereon.

14. Mr. Patil also tried to contend that since the detenu had studied upto 10th standard, although through Hindi medium, he was expected to know English. This argument cannot sustain in the very facts of the case as the detaining authority having been satisfied that the detenu was not in a position to understand English clearly he was furnished with the Hindi translation. Secondly, once the Hindi translation had been furnished to the detenu he was entitled to rely on the Hindi translation only and presume that the translation furnished to him was the correct translation.

15. Mr. Tripathi appearing on behalf of the petitioner has cited before us the recent decision of the Division Bench of this Court on this point in the case of Surendrakumar G. Rajoria v. Satish Sahney, reported in 1997 Bom.C.R. 87 : 1996(4) All M.R. 150. In that case the detenu who was not very well conversant with the English language was furnished with Hindi translation of the order and the grounds. Dealing with the similar contention as raised in this case the Division Bench of this Court had observed in para 7 thereof as follows :

'...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..'

It would be relevant to quote observations made in para 17 of the judgment of the earlier Division Bench of this Court in the case of Smt. Shashikala K. Rane v. Union of India & ors., reported in : 1987(1)BomCR617 which are to the following effect:

Para 17. 'If the Detaining Authority thought it expedient to furnish the translations even though the detenu knew English, then the detenu was entitled to take advantage of the translations and to point out that the translation which he relied upon did not convey a faithful meaning of the original grounds or the declaration under section 9(1) of the Act and were such as to make it impossible for the detenu to communicate and on that ground also the order ought to be struck down.'

We are in respectful agreement with the observations of this Court made in the above cited two judgments.

16. Mr. Tripathi has also cited before us yet another judgment of the Constitution Bench of the Supreme Court in the case of Harikisan v. State of Maharashtra, reported in : AIR1962SC911 dealing with the right to communication of the grounds of detention in the language with which the detenu is conversant. Rejecting the argumentsof the learned Attorney General inter alia that since English was the official language of the country and the grounds were otherwise explained to the detenue by the Inspector of Police in Hindi it was not necessary to furnish the Hindi translation to the detenu, the Constitution Bench observed in para 8 as follows :

'...But to a person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenue must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.'

While making the above observations the Constitution Bench of the Supreme Court relied on the earlier decision of the Supreme Court in the case of State of Bombay v. Atma Ram Sridhar : 1951CriLJ373 dealing with Clause (5) of Article 22 of the Constitution.

17. In the aforesaid view which has been taken by the Apex Court consistently right from the year 1951, the decision of the Supreme Court cited by Mr. Patil on behalf of the respondents in the case of Lawrence D'Souza v. Bombay State : 1956CriLJ935 will be of no assistance which is an authority on the point that the right under Article 22(5) of the Constitution to furnish particulars to the detenu is subject to the limitation laid down under Clause (6) of Article 22 of the Constitution i.e. the disclosure of particulars of certain facts cannot be made if the disclosure thereof was considered to be against the public interest. In this case no question of public interest arises as regards the communication to the detenu of his right to make representation.

18. Similarly Mr. Patil's reliance on the decision of the Supreme Court in the case of Godavari v. State of Maharashtra : 1964CriLJ222 also has no application to the present case as in that case the Court was considering the correctness of the translation of the grounds in which the expression used in the English version was variously expressed using synonymous words in the translation. The said authority will not be applicable in this case as here we are considering the question of informing the detenu of his right to make a representation which necessarily carries with it the corresponding obligation on the concerned authorities as observed earlier. Secondly in this case it was pointed out by Mr. Tripathi appearing on behalf of the petitioner-detenue that the same word 'satisfaction' was differently translated in the Hindi translation sometimes as 'Samadhan' which conveys its correct meaning but at other places, especially in the translation of the grounds, it had been wrongly translated by using various expressions like 'Jankari', 'Yakin', 'Dharna' in Hindi. If the said word had been translated by using different synonymous expressions conveying the same meaning in Hindi one could understand and in that case Mr. Patil's reliance on the decision of the Supreme Court in the case of Godavari v. State of Maharashtra (supra) would have been justified. Here the word, 'satisfaction' is not translated by using synonymous expressions or words in Hindi but using different words conveying altogether different or incorrect meanings.

19. The other decision of the Supreme Court in the case of Hawabi Sayed Arif Sayed Hanif v. L. Hmingliana : 1993CriLJ172 cited by Mr. Patil concerning typing mistake will also have no application to the facts of this case. Similarly the reference to the decision of the Supreme Court in the case of A. Alangarasamy v. State of Tamil Nadu : 1987CriLJ1887 will have no application. In the said case the question was about variation between two versions in Tamil translation of the words used in English and the Supreme Court held that the variation between the two versions did not cause prejudice to the detenu. Here we are concerned with the non-compliance with the mandatory duty of the Detaining Authority to inform the detenu of his right to make representation to the concerned authorities. Similarly the reliance on the decision of the Division Bench of the this Court in the case of Kamlakar Shankar Patil v. 8. Akashi, reported in : (1994)96BOMLR893 giving the connotation of the phrase 'Public order' and equating it with phrases like 'Public peace', 'Public safety and 'Tranquility' etc. will have no application either.

20. As we have observed earlier, apart from the very many mistakes committed in translating the grounds of detention in Hindi and the omissions made therein, the vital omission made in the translation is that the Hindi version of the grounds did not communicate or inform the detenu of his fundamental constitutional right to make representation which carries with it the corresponding obligation on the authorities. In view of the said lacuna in the grounds of detention, the order of detention and continued detention of the detenue is illegal and is; therefore, liable to be quashed and set aside. Since we are inclined to allow this petition on this ground, Mr. Tripathi appearing on behalf of the petitioner was not heard on the other grounds raised in the petition.

21. For the aforesaid reasons we allow this petition and make the rule absolute in terms of prayer Clause (B) of the petition. Consequently we direct that the petitioner detenu be released forthwith and set at liberty unless required in any other case.

22. Petition allowed.