Ganpat Pandurang Panchal (Father of the Detenue) Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
maharashtra prevention of dangerous activities of slumlords, bootleggers, drug offenders and dangerous persons act, 1981 - section 3(1) - constitution of india, 1950 - article 22(5) - detention orders - supply of grounds of detention to the detenu - marathi translation refers to injury on head when original refers to injury to popliteal region - detenu confused or misled on account of the infirmity in translation - right of detenu to make effective representation impaired - detention of the detenu vitiated.;;bearing in mind that premkumar jaiswal is the victim referring to in ground 5(a)(1) of the grounds of detention and in respect, of his injuries cr 112/2001 was registered it cannot be disputed that the injury report of premkumar jaiswal was a vital document. since it was a vital document and its translation was furnished to the detenu in marathi, it was incumbent that the said translation should have been true and faithful. it is pertineni to mention that it is not so because popliteal region is the region at the knee joint and obviously its translation as 'head' in marathi is palpably wrong.;on account of the aforesaid infirmity in translation, the detenu could have been confused or misled in exercising his fundamental right of making an effective representation, guaranteed to him by article 22(5) of the constitution of india. his said right was therefore impaired.;article 22(5) of the constitution of india, casts an obligation on the detaining authority to furnish to the detenu, as soon as possible, the grounds of detention. this obligation is obviously because if the same is not done, the detenu would not be able to effectively exercise his fundamental right guaranteed to him by the said provision of making an effective representation. it is implicit that the detenu can only exercise his aforesaid right, if the factual material on which the grounds are founded, is supplied to him in a language known to him and the translation of the said material is true and faithful of the original, which is not the case here, as is manifest from the marathi translation of the injury report of premkumar jaiswal.;the aforesaid infirmity in translation would vitiate the detention of the detenu. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - this obligation is obviously because if the same is not done, the detenu would not be able to effectively exercise his fundamental right guaranteed to him by the said provision of making an effective representation.vishnu sahai, j.1. through this writ petition preferred under article 226 of the constitution of india, the petitioner, who describes himself as the father of the detenu ramesh ganpat panchal, has impugned the order dated 8th june, 2001, passed by the 2nd respondent mr. m.n. singh, commissioner of police brihan mumbai, detaining the detenu under sub-section (1) of section (3) of the maharashtra prevention of dangerous activities of slumlords, bootleggers, drug offenders and dangerous persons act, 1981 (no. lv. of 1981) (hereinafter referred to as the m.p.d.a. act).the detention order along with the grounds of detention, which are also dated 8th june, 2001 was served on the detenu on 11th june, 2001 and their true copies have been annexed to this petition.2. a perusal of the grounds of detention would show that the impugned order is founded on cr, namely, cr no. 112/2001, under section 34 and 326 of the indian penal code read with 4 and 25 of the arms act, registered on the basis of a complaint, dated 14.3.2001, lodged by premkumar jaiswal at malad police station and in camera statements of two witnesses, namely, 'a' and 'b', which were recorded on 25.4.2001.since in our view, a reference to the prejudicial activities of the detenu contained in the grounds of detention is not necessary for adjudication of ground 12 (vii) pleaded in the petition, on which ground alone, in our judgment, this petition deserves to succeed, we are not adverting to them.3. in ground 12(vii) number of grounds including the ground that since marathi translation of documents supplied to the detenu is not a true and faithful translation of the original, detenu's fundamental right of making an effective representation, guaranteed under article 22(5) of the constitution of india, was impaired, are contained.two instances have been specifically set forth, namely, (a) that whereas the original injury report of the victim, premkumar jaiswal, which is in english shows that the first injury sustained by him was an incised wound over (1) popliteal region 20cm. x 5cm., but in the marathi translation, the said injury has been shown to have been suffered by the victim on the head; (b) whereas in the original in-camera statement of witness 'b', recorded in english, the averment is that the detenu's associate ramesh salvi, after resting a choppar on the chest of the witness, and abusing him, asked him to hand over rs. 2000/-, in the marathi translation, in place of rs. 2000/ -, the amount mentioned is rs. 1000/-.the contention of mr. chopra, learned counsel for the petitioner is that on account of the aforesaid discrepancies in translation, the detenu could have been confused or misled in exercising his fundamental right, guaranteed to him by article 22(5) of the constitution of india, of making an effective and purposeful representation.4. ground no. 12 (vii) has been replied to in paragraph 16 of the return of the detaining authority. reply therein, in respect of the aforesaid discrepancies in translation is as under:the copy of the medical certificate translated in marathi, which was furnished to the detenu contains a true, correct and faithful translation. the medical certificate has not been referred to and relied upon by him in the grounds of detention and there is not even a passing reference to the said medical certificate in the grounds of detention and, consequently, the detenu's right to make an effective and purposeful representation under article 22(5) of the constitution of india was not impaired. so far as the other infirmity, namely, whereas in, in camera statement of witness 'b' in english, the amount is mentioned is rs. 2000/- but in marathi translation it is mentioned as rs. 1000/-, is concerned, the same is not disputed but the averment is that on account of a typographical error, instead of rs. 2000/-, rs. 1000/- was typed.5. we have perused the averments contained in ground 12 (vii) of the petition, those contained in paragraph 16 of the return of the detaining authority wherein the said ground has been replied to and heard the learned counsel for the parties. we find merit in grounds 12 (vii).the supreme court in the oft quoted case of shalini soni v. union of india : 1980crilj1487 , has in paragraph 7 held that:'grounds' in article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences.in view of the said ratio, bearing in mind that premkumar jaiswal is the victim referring to in ground 5(a)(1) of the grounds of detention and in respect of his injuries cr 112/2001 referred to above, was registered it cannot be disputed that the injury report of premkumar jaiswal was a vital document. since it was a vital document and its translation was furnished to the detenu in marathi, it was incumbent that the said translation should have been true and faithful. it is pertinent to mention that it is not so because popliteal region is the region at the knee joint and obviously its translation as 'head' in marathi is palpably wrong.6. in our judgment, on account of the aforesaid infirmity in translation, the detenu could have been confused or misled in exercising his fundamental right of making an effective representation, guaranteed to him by article 22(5) of the constitution of india. we feel that his said right was impaired.7. it is pertinent to mention that article 22(5) of the constitution of india, casts an obligation on the detaining authority to furnish to the detenu, as soon as possible, the grounds of detention. this obligation is obviously because if the same is not done, the detenu would not be able to effectively exercise his fundamental right guaranteed to him by the said provision of making an effective representation. it is implicit that the detenu can only exercise his aforesaid right, if the factual material on which the grounds are founded, is supplied to him in a language known to him and the translation of the said material is true and faithful of the original, which is not the case here, as is manifest from the marathi translation of the injury report of premkumar jaiswal.8. it is pertinent to mention that in the case of shalini soni (supra) chinnappa reddy, j. has, in paragraph 3 observed thus:since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by article 2(5) read with article 19, the courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. a breach of the procedural imperative must lead to the release of the detenu.9. in our view, in view of the ratio laid down in shalini soni's case (supra), which we have extracted above, the aforesaid infirmity in translation would vitiate the detention of the detenu.10. we now come to the second infirmity in translation, namely, that in the original grounds of detention in>in camera statement of witness 'b' it is mentioned that amount of rs. 2000/- was demanded but in marathi translation, it was stated that rs. 1000/- was demanded and, therefore, the decant could have been confused or misled in exercising his fundamental right of making an effective representation. we have been that the stand point of the detaining authority is that the aforesaid infirmity crept in on account of a typographical error. we are inclined to accept this explanation of the detaining authority. we have gone through, both the original statement of witness 'b' and its marathi translation and make no bones in observing that apart from the said infirmity, we do not notice any other infirmity in the marathi translation. in our view since the translation in all other respects is true and faithful on account of the aforesaid infirmity, the detenu could not have been confused or misled in exercising his right of making an effective representation guaranteed to him by article 22(5) of the constitution of india.11. it should be borne in mind that so long as the translation is substantially correct and conveys the meaning, a minor discrepancy, of the type referred to above, would not vitiate the detention.12. the aforesaid discussion would show that the only infirmity in translation is the first infirmity, referred to above. in our view the said infirmity alone is sufficient to vitiate the detention of the detenu because on account of it the detenu's fundamental right of making an effective representation was impaired.13. in the result:- we allow this writ petition; quash and set aside the impugned detention order; direct that the detenu dilip ganpat panchal be released forthwith unless wanted in some other case; and make the rule absolute.