in the high court of judicature at bombay appellate side

WP.1747.2012.judgment.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE SIDECRIMINAL WRIT PETITION NO. 1747 OF 2012Yogesh Nandu PujariAge 25 years,residing at New Shivaji Nagar,Indira Nagar, Near Kalwa RailwayStation, Kalwa (East), Thane :­ Petitionerversus1) Commissioner of Police, Thane2) The State of Maharashtra3) The Superintendent,Nashik Road Central Prison,Nashik :­ RespondentsMr. U. N. Tripathi, for the Petitioner.Ms. M. H. Mhatre, APP, for Respondent State.CORAM:­A.M.KHANWILKAR &R.Y.GANOO,JJ.DATED:­ SEPTEMBER 06, 2012ORAL JUDGMENT :­ (Per A.M.Khanwilkar, J.)Heard Counsel for the parties.2) This Petition, under Article 226 of the Constitution ofIndia, takes exception to the preventive detention order passed byJ.V.Salunke,PAPage 1 of 8

WP.1747.2012.judgment.docthe Commissioner of Police, Thane, dated 25 thJanuary, 2012, inexercise of powers under Section 3(2) of the MaharashtraPrevention of Dangerous Activities of Slumlords, Bootleggers,Drug­offenders and Dangerous Persons and Video Pirates Act,1981.3) The Petitioner, after being taken into custody inconnection with the impugned detention order, was served withgrounds of detention dated 25 thJanuary, 2012, along with thecopies of the documents relied upon by the Detaining Authority informing his subjective satisfaction.4) Broadly, two contentions have been raised before us.We would deal with the first contention.According to thePetitioner, the Detaining Authority has relied upon the injurycertificates issued by C. S. M. Hospital, Kalwa, T. M. C., Thane,dated 6 thAugust, 2011, describing the injuries caused to thevictim, in respect of offence, in which, the Petitioner is named asaccused. The argument proceeds that the original documents arein English version. The Petitioner is not conversant with Englishnor has any workable knowledge of English. For that reason, theJ.V.Salunke,PAPage 2 of 8

WP.1747.2012.judgment.docDetaining Authority furnished Marathi translation of the relevantdocuments along with the grounds of detention served on him. Inthe translation done in Marathi, however, there is materialvariance regarding the description of the injuries as well as thesizes of the injuries. Some of the collumns, which have been leftblank in the English version, have been filled with some details inthe Marathi version. In substance, there is marked discrepancyand variance between the two versions of the same documents i. e.in English and Marathi respectively.This, according to thePetitioner, has affected his right to make effective representation.5) This argument has been countered by the Respondents.Learned APP, in the first place, fairly accepts that there is variancebetween the documents in English and the Marathi version. She,however, submits that the said injury certificates are not the reliedupon documents nor can be said to be referred to documents, eventhough the same form part of the compilation of documents servedon the detenu, along with the grounds of detention. According tothe Learned APP, the subjective satisfaction has been formed on thebasis of the factum of incidents and the nature of offence referredJ.V.Salunke,PAPage 3 of 8

WP.1747.2012.judgment.docto in the FIR and the charge­sheet filed in that regard. It is not onthe basis of the injury certificates, which are at Exhibit – 'F'collectively at pages 39 to 42 of the Writ Petition paper book. Onthis basis, it is argued that since the injury certificates in questionare not the relied upon documents, the same cannot be consideredas vital documents and even if there is variance noticed in the saiddocuments, it is of no avail to the Petitioner, as the grievanceregarding the Petitioner having been deprived in making effectiverepresentation at the earliest opportunity, cannot be pressed intoservice.6) For considering these rival stand, we may usefully referto the grounds of detention. In the opening part of the grounds ofdetention, it is unambiguously noted that the copies of thedocuments placed before the Detaining Authority were relied upondocuments to form the subjective satisfaction and the saiddocuments are enclosed along with the grounds of detentionserved on the detenu. To examine the argument further, we maythink it apposite to reproduce the last sentence appearing inParagraph 1 of the grounds of detention. The same reads thus:J.V.Salunke,PAPage 4 of 8

WP.1747.2012.judgment.doc“.......The copies of documents placed before me on which Irelied upon and formed my subjective satisfaction, are enclosed,except the names and identifying particulars ofwitnesses/victims in connection with the grounds as mentionedin para No. 5(a)(i) and (ii) below, which are not furnished toyou in the public interest for which I claim privilege.”(emphasis supplied)7) Relying on the latter part of the above quoted sentencein the grounds of detention, it was argued by the Learned APP thatthe earlier part of the said sentence refers to the circumstances andmaterial relied upon by the Detaining Authority in the context ofParagraph 5(a)(i)(ii) and not Paragraph 4 of the grounds ofdetention. The injury certificates pertain to the circumstances andmaterial found in Paragraph 4 of the grounds of detention. Hence,the same cannot be treated as documents relied upon andtherefore, not vital documents. This argument, in our opinion, iscomplete distorted reading of the sentence reproduced above. Theplain meaning of the sentence, in the words of the DetainingAuthority himself, makes it amply clear that the supplied copies ofthe documents to the detenu, were relied upon to form hissubjective satisfaction.There is nothing in the grounds ofdetention, even to remotely suggest the Detaining Authority hadselectively relied upon some of the documents included in theJ.V.Salunke,PAPage 5 of 8

WP.1747.2012.judgment.doccompilation of documents accompanied by the Index thereof alongwith the grounds of detention, while forming his subjectivesatisfaction, much less excluded consideration of the medicalcertificates in question. In our opinion, therefore, this argument,advanced by the Learned APP, will have to be rejected.8) A priori, it would necessarily follow that the injurycertificates Exhibit – 'F' collectively, which formed part of thecompilation of documents accompanying the grounds of detentionserved on the detenu, were relied upon by the Detaining Authorityto form his subjective satisfaction. The concomitant of this findingis that said documents are vital documents and will have to beconsidered as “ground” within the expansive meaning ofexpression “grounds of detention”. This legal position, in ouropinion, is no more res integra. The Apex Court in the case ofKhudiram Das vs. the State of West Bengal and Ors, (1975) 2 SCC81 had occasion to answer the same. The Apex Court hasexpounded the meaning of expression “grounds”. It is held that itmeans all the basic facts and “materials which have been takeninto account” by the Detaining Authority in making the order ofJ.V.Salunke,PAPage 6 of 8

WP.1747.2012.judgment.docfinding recorded on the first point urged by the Petitioner.Accordingly, we hold that continued detention of the Petitioner isillegal and vitiated. It is hit by the vice of Article 22(5) of theConstitution of India, of denial of right to make effectiverepresentation at the earliest opportunity.11) We, accordingly, pass the following operative order,copy whereof be made available to the Petitioner, forthwith, as thetranscription of this judgment is likely to take some time. Theoperative order reads thus:ORDERThe Respondents are directed to release the PetitionerYogesh Nandu Pujari, forthwith, who has been detained inconnection with the impugned preventive detention order bearingNo. TC/PD/MPDA/03/2012, dated 25 thJanuary, 2012, unlessrequired in connection with some other criminal case.Rule made absolute accordingly.(R.Y.GANOO,J.)(A.M.KHANWILKAR,J.)J.V.Salunke,PAPage 8 of 8