Vilas Ashok Aawale v. The State of Maharashtra

1. Heard.

2. This petition is filed to challenge the order of Detention bearing No. Desk-7/Home/Pol/MPDA/SR/02/2022 dated 16th December 2022 issued by the Respondent No. 2 – The District Magistrate, Kolhapur, in exercise of the powers conferred by sub-section (2) of section 3 of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 (‘MPDA Act’) for detaining the Petitioner’s son – Pruthviraj Vilas Aawale.

3. Perusal of the detention order indicates that the offence registered against the detenu on 17th September 2022 being C.R. NO. 509 of 2022 registered with Juna Rajwada Police Station as well as the in-camera statements of two witnesses, are relied upon by the detaining authority to pass the order of detention.

4. The petitioner has raised various grounds for challenging the order of detention; however, it is not necessary to consider all the grounds raised by the petitioner, in as much as the Petition ought to succeed only on the ground raised in clause (B) of paragraph 6 of the petition, which reads as under:

5. Learned counsel for the Petitioner submitted that the ground stated by the Detaining Authority for recording satisfaction for issuing the detention Order as per the English version of the detention order and the Marathi version is different. The learned counsel referred to the reasons recorded in paragraph 2 of the detention order and the contents of the Marathi version of the same order. Thus, by comparing the English version as well as the Marathi version of the order, the learned counsel submitted that there is variance in the grounds of detention recorded in the English version of the impugned order and in the Marathi version of the same order.

6. Learned counsel for the petitioner submitted that perusal of the order of detention would show that there is a chart showing various offences registered against the detenu; however, the same is not relied upon by the detaining authority for passing the order of detention. He submitted that the only offence registered against the detenu on 17th September 2022 i.e. C.R. No. 509 of 2022, has been relied upon by the detaining authority. Learned counsel further submitted that there is complete non-application of mind by the detaining authority in passing the detention order.

7. Learned APP has tendered an affidavit dated 14th June 2023 of Mr. Rahul Rekhawar, District Magistrate, Kolhapur, on behalf of the detaining authority (Respondent No. 2), as well as an affidavit of Mr. Anil Kulkarni, Joint Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai on behalf of The State of Maharashtra (Respondent No. 1). The affidavits tendered by the learned APP are taken on record. The learned APP, by relying upon the aforesaid affidavits, has supported the order of detention.

8. Learned APP, by relying upon the affidavit filed on behalf of the Detaining Authority, denied that the relevant documents were not placed before the detaining authority as sought to be contended by the petitioner. The learned APP submitted that the in-camera statements of the two witnesses would show the violent tendencies and criminal activities of the detenu, which are prejudicial to the maintenance of public order. She further submitted that the list of cases referred to in the detention order would show the tendency and inclination of the detenu towards illegal activities. The learned APP further submitted that perusal of the Marathi version of the order, as well as the English version, would show that there is absolutely no variance in both versions. Learned APP has thus supported the order of detention.

9. We have considered the submissions made by both parties. A perusal of the Marathi and English version of the detention order shows that the contents recorded in the English version of the order are absent in the Marathi version. Paragraph 2 of the English version of the order records ground for detention as under: “Thus to achieve criminal objectives, you have habitually committed offences against the public peace viz. committed offences of the type of murder by using a deadly weapon in a public place".

10. Learned counsel for the petitioner is thus right in submitting that there is variance in the Marathi version of the order as well as the English version. The ground recorded in paragraph 2 of the English version is not consistent with the purpose of issuing detention order as recorded in the Marathi version. A perusal of the said paragraph of the English version of the detention order would show that there is a positive assertion that the detenu has committed offences of the type of murder; however, the Marathi version of the detention order does not record any such positive assertion. Thus, the learned counsel for the Petitioner is right in submitting that such variance in both versions of the detention order has deprived the detenu of making an effective representation against his detention.

11. Perusal of the affidavit filed on behalf of the detaining authority does not explain the reason for the variance in contents of the Marathi and English versions of the detention order. A perusal of the Marathi, as well as the English version of the detention order, shows that there is material inconsistency in both versions, which goes to the root of the matter. The English version says the detenu has committed offences of the type of murder, and the only CR relied upon is for the alleged offences punishable under Sections 326, 323, 504, read with 34 of the Indian Penal Code and Sections 4 and 25 of the Arms Act. Therefore, there is complete non-application of mind in passing the detention Order. Thus, variance in the Marathi as well as the English version of the ground of detention recorded in the detention order, as noted aforesaid, left the detenu confused and deprived the detenu of making an effective representation against his detention. Any nonapplication of mind by the detaining authority would amount to a breach of constitutional imperative and would render continued detention impermissible and illegal.

12. In view of the facts of the present case, it is necessary to refer to the decision of this Court in the case of Pradeep Panchal Vs The State of Maharashtra and others[1]. In the case of Pradeep Panchal, the detaining authority had furnished a Hindi version of the detention order, as the detenu was not conversant with the English language. The ground of challenge to the detention order was that there were several discrepancies and variations in the English and Hindi version of the detention order. This Court set aside the order of detention by 1 2014 ALLMR (Cri) 2331 holding in paragraph 15 as under: “As the law relating to prevention detention is visited with serious consequences, the question of 'prejudice', 'inadvertent mistakes' and 'typographical errors' have no place and no judicial protection can be afforded to such glaring mistakes that stare in the face of the detenu. In the light of the aforesaid, we hold that non-furnishing of accurate, true and faithful Hindi translation of the order of detention is a serious and glaring infirmity, which in the facts of the case, had the potential to mislead/confuse the detenu in making an effective representation. We therefore, have no hesitation in holding 0that because of the variance in the Hindi translation provided to the detenu, his right to make an effective representation under Article 22(5) of the Constitution of India was clearly impaired……………..”

13. In similarly situated facts of the case of Vijay Kumar Dharna @ Koka Vs Union of India and others[2], the Hon’ble Supreme Court has held that because of variance in the Gurmukhi version of the detention order and the contents of the detention order, the detenu was unable to make an effective representation against his detention and was thereby denied his right under Article 22(5) of the Constitution. The Hon’ble Supreme Court has held in paragraph 4 as under: “4. In the Gurmukhi version of the detention order it was stated that the detention order had become necessary ‘with a view to preventing him from smuggling goods and from abetting the smuggling of goods’. It is, therefore, clear that according to the Gurmukhi version the detenu was taken in detention under clauses (i) and

(ii) of Section 3(1) of the Act. However, when we turn to the grounds of detention the detaining authority records his satisfaction as under: “I am satisfied it is necessary to detain you under COFEPOSA Act, 1974 with a view to preventing you from concealing, transporting smuggled goods as well as dealing in smuggled goods”. This satisfaction clearly reflects the grounds contained in clauses (iii) and (iv) of Section 3(1) of the Act. The above satisfaction does not speak of smuggling of goods or abetting the smuggling of goods which are the grounds found in the Gurmukhi version of the detention order. There is, therefore, considerable force in the contention urged by the learned counsel for the appellant that on account of this variance the detenu was not able to effectively represent his case before the concerned authorities. In fact according to him the appellant was confused whether he should represent against his detention for smuggling of goods and/or abetting the smuggling of goods or for engaging in transporting and concealing smuggled goods and/or dealing in smuggled goods. Besides the English version of the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Article 22(5) of the Constitution.