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Usha Manohar Waradkar Vs. Commissioner of Police, Greater Bombay and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 513 of 1982
Judge
Reported in1983(1)BomCR225
ActsNational Security Act, 1980 - Sections 3(2); Constitution of India - Articles 22(5) and 226; Indian Penal Code
AppellantUsha Manohar Waradkar
RespondentCommissioner of Police, Greater Bombay and ors.
Appellant AdvocateDhun N. Canteenwala and ;Satish Parekh, Advs.
Respondent AdvocateN.D. Hombalkar, P.P.
DispositionPetition allowed
Excerpt:
.....to detenu in marathi indicated erroneously that detaining authority had taken into consideration medical certificate which was really not considered - there was nothing to show any prejudicial activity on part of detenu during intervening period of 14 and ½ months - held, order of detention vitiated and detenu entitled to be released. - - this itself clearly shows that the medical certificate of suresh chowdhary pertaining to the ground no. ..although there was a lapse of a year but the incident of july 24, 1981 was just on the even of the ld festival and the ground alleged is that the petitioner was trying to instigate the muslims to communal violence on promise of better arms, with a view to open confrontation between the two communities. 9. it is now well-settled that even a..........translations of the grounds of detention and documents supplied to him. it is contended that the medical certificate of suresh chowdhary, referred to and relied upon in ground no. ii, was furnished to the petitioner in marathi, and no copy of the original english medical certificate was given to the petitioner. it is further contended by shri canteenwala that the medical certificate in english of one fernandes dominic was supplied to the detenu, but no marathi version of this medical certificate was given to the detenu. these lapses indicated non-application of mind on the part of the respondent no. 1 making the detention order. fernandes dominic was not one of the persons alleged to have been assaulted and injured in the incident of 9-2-1982 which formed the basis of the second ground.....
Judgment:

V.V. Joshi, J.

1. The petitioner who is the wife of the detenu Manohar Dulaji Waradkar has challenged the detention of her husband under order dated 17 April, 1982 issued by the respondent No. 1 under section 3(2) of the National Security Act, 1980. The detention order along with another order regarding the place of detention, and the grounds of detention, all of the date 17th April, 1982, was served on the detenu on the same date.

2. The impugned order of detention, which has been issued by the respondent No. 1 with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order, is based on three grounds. (i) The first ground relates to an incident dated 19-11-1980 when the detenu along with his associates armed with swords went to Chawl No. 4, Janata Housing Society, Patel Chowk, Ghatkopar for making enquiries about Shri Pandurang Narayan Digraskar and at that time one Smt. Suhasini Shankar Patkar, aunt of the said Pandurang residing in room No. 3 of the said Chawl, asked the detenu as to what was the matter. The detenu got annoyed and gave a blow of sword on her right hand, and, thereafter, the detenu along with his associates ran away. On the basis of this incident an offence under section 324-114 I.P.C. was registered under C.R. No. 688 of 1980 at Ghatkopar Police Station. The detenu was arrested and the case is reported to be sub-judice (ii) Second ground of detention is based on an incident of date 9-2-1982 when the detenu and a large number of his associates are alleged to have assaulted Rajaram Baburao Ghosalkar, Maruti Jadhav, Datta Krishna Pawar, Dharma Tikaram Gamare, Hari Yadav Wagh and Suresh Chowdhary with swords. The above mentioned injured persons were treated in Rajawadi Hospital where Suresh Choudhary, Maruti Jadhav and Hari Yadav Wagh admitted for treatment and the others were treated and allowed to go. This incident led to registration of C.R. No. 57 of 1982 at Ghatkopar Police Station under sections 143, 144, 147, 148, 149, 326 and 307 I.P.C. (iii) The third ground is based on another incident of the night of 9-2-1982 when the detenu and his associates armed with swords and sickles attacked 'Apsara Deshi Bar' situated at Dhavada Chawl, Pant Nagar, Ghatkopar (East) and started damaging the furniture, show case, glasses and bottles in the bar. Considerable property was damaged and one Mohamed Ali alias Namkhabai was injured and sent to Rajawadi Hospital. This incident led to the registration of C.R. No. 78 of 1982 of Tilak Nagar Police Station under sections 143, 144, 147, 148, 149, 224 and 427 I.P.C. The case is under investigation.

3. Shri Canteenwala for the petitioner has challenged the impugned order of detention on various grounds. It is urged that the detenu can read and understand a little of the English language, but he mainly relied upon the Marathi translations of the grounds of detention and documents supplied to him. It is contended that the medical certificate of Suresh Chowdhary, referred to and relied upon in ground No. II, was furnished to the petitioner in Marathi, and no copy of the original English Medical Certificate was given to the petitioner. It is further contended by Shri Canteenwala that the Medical Certificate in English of one Fernandes Dominic was supplied to the detenu, but no Marathi version of this Medical Certificate was given to the detenu. These lapses indicated non-application of mind on the part of the respondent No. 1 making the detention order. Fernandes Dominic was not one of the persons alleged to have been assaulted and injured in the incident of 9-2-1982 which formed the basis of the second ground of detention. Shri Canteenwala contended, therefore, that in considering ground No. II the respondent No. 1 had considered the Medical Certificate of Fernandes Dominic, which was an irrelevant material in respect of this ground and he had not considered the Medical Certificate of Suresh Chowdhary which should really have been considered and of which only a copy in Marathi had been furnished to the detenu without the copy of the original English certificate. This indicated that irrelevant material had been taken into consideration and relevant and important material which should have been taken into consideration was not considered by the respondent No. 1 while making the detention order. It was also contended by Shri Canteenwala that the English grounds of detention properly stated in concluding portions thereof that due to these incidents peace-loving citizens of the localities of Tilak Nagar and other adjoining localities in the jurisdiction of Ghatkopar Police Station and the areas adjoining thereto were experiencing sense of insecurity and were living under the constant shadow of fear, which activities of the detenu were prejudicial to the maintenance of public order in the said localities and areas. The Marathi translation of the grounds of detention furnished to the detenu used the words 'law and order' 1/4dk;nk o lqO;oLFkk1/2- This also indicated non-application of mind on the part of the Detaining Authority and had vitiated the detention order. Shri Canteenwala also contended that ground No. I in the grounds of detention was a stale ground with its live link snapped on the date of the detention order, since this ground related to in incident which has taken place on 19-11-1980, nearly 17 months before the making of the detention order on 17-4-1982, and there was a gap of nearly 14 1/2 months between this first incident dated 19-11-1980 relating to ground No. 1 and the next one of date 9-2-1982, relating to the ground No. II. During this period of 14 1/2 months there was no prejudicial activity of the detenu. Therefore, the ground No. I stood stale and completely delinked from ground No. II. The consideration of ground No. I by the Detaining Authority while making the detention order has, therefore, vitiated the detention order.

4. To allay all fears about the activities of the detenu in future, Shri Canteenwala for the detenu voluntarily placed before us a written undertaking signed by the detenu wherein the detenu has stated that he ordinarily resides with his wife and other family members at Building No. 73, Room No. 2166, Pant Nagar, Ghatkopar (East), Bombay 400 075, where he has a restaurant business and he looks after his family members from the earnings thereof. Without admitting the truth of the allegations contained in the grounds of detention in the detention order, the detenu has undertaken to keep the peace for a period of two years, and that he shall not in the said period indulge in any activities prejudicial to the maintenance of public peace and shall continue his said restaurant business in the future and small inform the police of his residential address wherever he stays and also as and when the changes his residential address.

5. It would seem to us that Shree Canteenwala is right in most of his submissions. In para 8(C)(i) the petitioner has contended that the copy of the original Medical Certificate in English relating to the treatment of Suresh Chowdhary which was relied upon in ground No. 11 was given to the detenu in Marathi and was not given in English. In reply to this contention, para 10 of the affidavit filed by respondent No. 1 does not say anything in this respect. It is conceded before us that the Marathi copy of the Medical Certificate of Suresh Chowdhary was furnished to the detenu and the copy of the original English Medical Certificate was not furnished to him, though in paragraphs 4 and 22 of the affidavit of respondent No. 1 there is a general mention that all the records on the basis of which the order of detention was passed and all the documents in English along with the translation in Marathi were supplied to the detenu. As regards the contention that the Medical Certificate of one Fernandes Dominic was supplied to the detenu in English without the Marathi translation thereof, the allegation is contained in para 8(C)(ii) of the petition and the reply to this contention is contained in paras 10 and 11 of the affidavit of the respondent No. 1 where it is mentioned that though the certificate of an injured person by name Fernandes Dominic is supplied to the detenu, his name is not at all mentioned in the grounds of detention and, therefore, the Medical Certificate in English becomes redundant in view of the fact that the correct certificate of the injured person was supplied to the detenu in Marathi. Now the admitted position that the Medical Certificate of Suresh Chowdhary was supplied to the detenu only in Marathi and not in English, at once brings this case within the ratio of our recent decision in Moosa Valliat v. The Assistant Secretary, Government of Maharashtra, Home Department, Bombay, Criminal Writ Petition No. 235 of 1982, decided on 7-9-1982, as also the ratio of another Criminal Application No. 236 of 1982, Syed v. State of Maharashtra, decided by another Division Bench of this Court (Rege and Jamdar, JJ.) on 6-8-1982. This circumstance would go to vitiate the detention order.

6. What is more important, we find, is the circumstance that the list of documents placed before the considered by the Detaining Authority in English, which was furnished to the detenu as appended to the grounds of detention, does not contain the English Medical Certificate of Suresh Chowdhary. On the contrary it refers at Item No. 33 to the Medical Certificate of Fernandes Dominic. This itself clearly shows that the Medical Certificate of Suresh Chowdhary pertaining to the ground No. II, a copy of which in Marathi was furnished to the detenu, was not considered at all by the respondent No. 1 while making the detention order which, however, was passed by him after erroneously taking into consideration the English Medical Certificate of Fernandes Dominic which was placed before him. This at once shows that irrelevant material has been considered by the Detaining Authority for arriving at his subjective satisfaction before making the order. What is more serious, relevant and important material i.e. the certificate of the injured person Suresh Chowdhary, was not considered by him at all. This not merely is indicative of non-application of mind on the part of the respondent No. 1 in making the detention order but also vitiates the right of detenu of making an affective representation under Article 22(5) of the Constitution, since the material furnished to the detenu, particularly in Marathi, indicated erroneously that the Detaining Authority had taken into consideration the Medical Certificate of Suresh Chowdhary which had really not been considered.

7. Further non-application of mind on the part of the Detaining Authority is evidenced by the fact that recitals in the English grounds of detention, a copy of which was furnished to the detenu showed that he was being detained with a view to preventing him from acting in any manner prejudicial to the maintenance of 'public order', and yet the words used in the Marathi translation of the grounds of detention supplied to the detenu mentioned that the activities of the detenu were considered prejudicial to 'law and order' (i.e., and not to 'public order'). This is indicative of a cavalier and casual approach in making the detention order. This again was violative of the right of the detenu under Article 22(5) of the Constitution, since he did not get a correct picture of the grounds on which the respondent No. 1 had reached his subjective satisfaction before making the detention order.

8. We are also inclined to agree with the contention of Shri Canteenwala that ground No. 1 was a hopelessly stale ground on the date of the detention order with its live link snapped, and was, therefore, irrelevant as ground of detention. As rightly contended by Shri Canteenwala there is a time lag of 14 1/2 months between this incident of 19-11-1980 which gave rise to ground No. I and the next prejudicial activity of the detenu on 9-2-1982 giving rise to ground No. II. There is nothing to show any prejudicial activity on the part of the detenu during the intervening period of 14 1/2 months. The detention order was actually passed nearly 17 months after the first incident of 19-11-1980. The alleged associates of the detenu referred to be his associates in grounds Nos. II and III. The victim of the assault in ground No. I are also different from those in grounds Nos. II and III. The ground No. I would not then fit in with the other grounds to constitute 'a series of acts' on the part of the detenu so as to make one continuous chain of prejudicial activity of the type indicated in para 23 of the reported judgment in Wasiuddin Ahmed v. District Magistrate, Aligarh, : 1981CriLJ1825 . It is true that in Fitrat Raza Khan v. State of U.P, : 1982CriLJ338 it was found that the order of detention was based on two incidents and the second incident was after a lapse of about a year but then that case turned on its peculiar facts and circumstances because as observed in para 4 of the reported judgment '......but both the incidents show the propensities of the petitioner to instigate the members of the Muslim community to communal violence........Although there was a lapse of a year but the incident of July 24, 1981 was just on the even of the ld festival and the ground alleged is that the petitioner was trying to instigate the Muslims to communal violence on promise of better arms, with a view to open confrontation between the two communities. It cannot be said that the prejudicial conduct or antecedent history of the petitioner was not proximate in point of time and had no rational connection with the conclusion that his detention was necessary for maintenance of public order'. In the present case incident of 19-11-1980 under ground No. I stands completely disassociated from the incidents under grounds Nos. II and III because of the lapse of time after the incident under ground No. I, with no prejudicial activity of the detenu during the intervening period. Ground No. I was thus a stale and irrelevant ground on the date of order of detention.

9. It is now well-settled that even a single irrelevant ground vitiates the detention order, because one cannot know in what manner the irrelevant ground affected the mind of the Detaining Authority in reaching its subjective satisfaction.

10. On these considerations we find the impugned detention order is vitiated and this writ petition will have to be allowed. In view of the undertaking given in writing before us by the detenu we hope there will be no further trouble from this detenu after he is released. The said written undertaking given by the detenu shall be placed on record of this case.

11. The writ petition is allowed. Rule is made absolute and the detenu is directed to be set at liberty forthwith unless required in any other case.


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