Non-application of Mind is a vital factor- Bombay High Court.
Detention of an individual without proper reasoning is illegal. The grounds of detention had been proved and decided according to establish itself justifiable for an individual. One such case which deals with it is the case of Pravin Ganpat Kakad v. The Commissioner of Police &amp; Anr. [WRIT PETITION NO.336 OF 2021]. The facts of the case initiate when the petitioner challenges respondent No. 1 i.e. Commissioner of Police, Nashik City’s order of detention dated 21.08.2020, which was released under section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous People, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Vital Commodities Act. The applicant was served with the order of detention, the grounds of detention, and the relied-upon material. Learned counsel for the petitioner further submits that a perusal of the detention order demonstrated that there was non-application of mind because it was stated by respondent No.1 that prejudicial activities of the petitioner concerned six named areas and adjoining localities of Nashik city whereas there was no material to support such an assertion. On this basis, it was claimed that the detention order deserved to be set aside. In this regard, learned counsel for the petitioner relied upon Vijaya Ganesh Gajre Vs. Commissioner of Police, Pune &amp; Ors., Criminal Writ Petition No.5052 of 2015. On the other hand, Mr. J. P. Yagnik, learned APP appearing on behalf of the respondents submitted that there was no substance in the contentions raised on behalf of the petitioner. Firstly, it was stated that the ground pertaining to alleged improper verification about the truthfulness of in-camera statements was not sustainable because there was no set format under which such verification was required to be recorded. It was submitted that in the present case the material on record sufficiently demonstrated that the in-camera statements had been verified by the concerned officer and that therefore it could not be said that such statements were not reliable or that respondent No.1 could not have considered such statements while issuing the detention order. The court in this case had held “As regards the second ground of challenge pertaining to the wrong translation of certain documents supplied along with the order of detention, it is necessary to peruse the documents that were allegedly wrongly translated. We found on a perusal of the documents that there appear to be errors in the translation of few words in a medical certificate and part of reply to a bail application concerning the petitioner. The basis for claiming that such wrong translation ought to be held to be fatal to a detention order, is that it interferes with the right of the detenue to make an effective representation. In the present case, we are unable to appreciate how error in translation of the aforesaid two documents adversely affected the right of the petitioner to make an effective representation. In the six aforesaid judgments on which the learned counsel has placed reliance in support of the aforesaid ground, it was found on facts that supply of wrong translations had indeed adversely affected the right of dentenues in those cases in making effective representations. In this regard, learned APP is justifed in relying upon judgment of this Court in the case of Bhaskar A. Shetty (supra), wherein it has been categorically laid down that the Court must reach a conclusion that incorrect translation of a document or any infrmity in such translation has prejudicially afected or frustrated the right of the detenue to make an efective representation. Therefore, it will not sufce for the petitioner to show error in translation of a few words in a couple of documents, but he will have to demonstrate how such erroneous translation adversely afected his right to make a purposeful and efective representation. We are of the opinion that in the facts of the present case, the petitioner has failed to do so.” “As regards the third ground pertaining to alleged non-application of mind on the part of the respondent No.1 i.e. detaining authority while issuing the detention order, we have perused the grounds of detention as also the entire record of the case. In the grounds of detention, respondent No.1 has not only given the past history but the said authority has also recorded the number of FIRs registered against the petitioner, in respect of which the petitioner is facing trial.” “The respondent No.1 has noted chapter proceedings initiated against the petitioner, as also recent offenses in the form of FIRs registered against the petitioner for serious offenses under the Indian Penal Code as well as the Arms Act. Respondent No.1 has then referred to the two in-camera statements indicating the activities of the petitioner and the manner in which his activities have prejudicially affected public order.”
916) WP 336 21.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.336 OF 2021 Pravin Ganpat Kakad Age 23 years Residing at Flat No.8 Krushna Apartment Shivaji Nagar Dindori Road Mhasrul Nashik 1. The Commissioner of Police Nashik City Nashik. 2. The State of Maharashtra WP 336 21.doc Slumlords Bootleggers Drug ofenders Dangerous Persons Video Pirates Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act 1981 whereby petitioner has been detained. The order of detention and the grounds of detention along with relied upon material were served upon the Although number of grounds have been raised on behalf of the petitioner in the present writ petition the learned counsel appearing for the petitioner has pressed groundsh) and in order to challenge the aforesaid detention order. Groundpertains to improper recording of subjective satisfaction about truthfulness of in camera statements Groundsandpertain to wrong translation of relied upon documents and groundpertains to alleged non application of mind by the respondent No.1 detaining authority while issuing the detention order Ms. Jayshree Tripathi learned counsel appearing for the petitioner specifcally submitted that a perusal of the record would show that the truthfulness of the in camera statements was not properly verifed and recorded that there was no subjective satisfaction of the ofcers in that regard. It was submitted that this indicated that the in camera statements could not be accepted as authentic and they could not have been utilized for the purpose of issuing the detention order. In support of the said ground learned counsel for the petitioner WP 336 21.doc has relied upon Lakhan Rohidas Jagtap Vs. Commissioner of Police Pune & Ors. 2009 ALL MR 5261 Smt Vijay Raju Gupta Vs. R. H. Mendonce & Ors. 2001 All MR Cri) 48 Zabin Salim Shaikh Vs. Shri. A. N. Roy 2006 ALL MR 3324 and Ashish S o Robert Felix Vs Commissioner of Police Nagpur City Criminal Writ Petition No.3914 It was submitted by the learned counsel for the petitioner in the context of groundsandraised in the writ petition that wrong translation of vital documents relied upon by the respondent No.1 detaining authority had vitiated the detention order. It was submitted that such wrong translation adversely afected the right of the petitioner under Article 22(5 of the Constitution of India for making an efective representation. Learned counsel for the petitioner further submits that a perusal of the detention order demonstrated that there was non application of mind because it was stated by the respondent No.1 that prejudicial activities of the petitioner concerned six named areas and adjoining localities of Nashik city whereas there was no material to support such an assertion. On this basis it was claimed that the detention order deserved to be set aside. In this regard learned counsel for the petitioner relied upon Vijaya Ganesh Gajre Vs Commissioner of Police Pune & Ors. Criminal Writ Petition No.50515 WP 336 21.doc On the other hand Mr. J. P. Yagnik learned APP appearing on behalf of the respondents submitted that there was no substance in the contentions raised on behalf of the petitioner. Firstly it was stated that the ground pertaining to alleged improper verifcation about truthfulness of in camera statements was not sustainable because there was no set format under which such verifcation was required to be recorded. It was submitted that in the present case the material on record sufciently demonstrated that the in camera statements had been verifed by the concerned ofcer and that therefore it could not be said that such statements were not reliable or that the respondent No.1 could not have considered such statements while issuing the detention order. In this regard learned APP relied upon judgment of this dated 03 04.03.2016 passed in Criminal Writ Petition No.45115 Santosh Kashinath Kamble Vs. State of Maharashtra & Ors Learned APP further submits that ground pertaining to improper or wrong translation of documents was also not sustainable for the reasons that the petitioner was required to demonstrate the prejudice that he had sufered due to such alleged wrong translation. It was further submitted that when the representation was admittedly made through advocate such a ground was not available to the petitioner. In this regard learned APP relied upon judgment of this Court in the case of Bhaskar A. Shetty Vs. M. N. Singh Commissioner of Police & Ors 2001(5) Bom.C.R. 718 WP 336 21.doc Learned APP further submits that the ground regarding non application of mind was without any substance because entire material that was relied upon by the respondent No.1 detaining authority was communicated along with the grounds of detention to the petitioner and therefore it could not be said that the detention order was liable to be set aside Learned APP submitted that the material on record sufciently demonstrated that the activities of the petitioner were prejudicial to public order and therefore the detention order We have heard learned counsel for the rival parties and we have perused the writ petition as well as the replies and also the record pertaining to the case. In matters concerning detention of persons by exercise of power under statutes like the MPDA Act the Courts have consistently scrutinized the material on record in detail so as to ensure that all safeguards are properly followed by the concerned authorities in order to ensure that the valuable rights available to detenues under Article 22 of the Constitution of India are not violated. The authorities are expected to scrupulously follow such requirements so as to ensure that detention of a person in exercise of such extraordinary power without recourse to ordinary law is strictly in accordance with law In the present case in so far as the frst ground of challenge is concerned learned counsel for the petitioner has submitted that the verifcation regarding truthfulness of in WP 336 21.doc camera statements was not in accordance with law and therefore the in camera statements could not have been relied upon. In reply to the said ground respondent No.1 has specifcally stated that he was subjectively satisfed regarding the truthfulness of in camera statements and that the said statements were verifed by the Deputy Commissioner of Police Zone 1) Nashik City. The endorsement made by the said ofcer has been quoted in the reply and this is as per the record of the case. Learned counsel for the petitioner has relied upon four judgments mentioned above to claim that such verifcation in the present case was not in accordance with law In these judgments it was found on facts that the verifcation was not satisfactory and therefore in camera statements could not have been made the basis for issuance of the detention order. In this regard a division bench of this Court in the case of Santosh Kashinath Kamble has held that there is no particular format in which verifcation of an in camera statement has to be recorded. It is laid down that there should be verifcation on such in camera statements and no particular format is expected and no particular words and expressions are supposed to be employed while recording verifcation of such in camera statements. The endorsement of the Deputy Commissioner of PoliceNashik City fled by respondent No.1 shows that the places mentioned in the in camera statements were visited by the verifying ofcer and truthfulness of the incidents mentioned in the statements was verifed from the people present during such incidents. We are WP 336 21.doc of the opinion that such an endorsement clearly satisfes the requirement about verifcation of truthfulness of in camera statements and therefore we fnd that there is no substance in the aforesaid ground raised on behalf of the petitioner As regards the second ground of challenge pertaining to wrong translation of certain documents supplied along with the order of detention it is necessary to peruse the documents that were allegedly wrongly translated. We found on a perusal of the documents that there appear to be errors in the translation of few words in a medical certifcate and part of reply to a bail application concerning the petitioner. The basis for claiming that such wrong translation ought to be held to be fatal to a detention order is that it interferes with the right of the detenue to make an efective representation. In the present case we are unable to appreciate how error in translation of the aforesaid two documents adversely afected the right of the petitioner to make an efective representation In the six aforesaid judgments on which the learned counsel has placed reliance in support of the aforesaid ground it was found on facts that supply of wrong translations had indeed adversely afected the right of dentenues in those cases in making efective representations. In this regard learned APP is justifed in relying upon judgment of this Court in the case of Bhaskar A. Shetty wherein it has been categorically laid down that the Court must reach a conclusion that incorrect translation of a document or any infrmity in such translation has prejudicially afected or frustrated the right of the detenue WP 336 21.doc to make an efective representation. Therefore it will not sufce for the petitioner to show error in translation of a few words in a couple of documents but he will have to demonstrate how such erroneous translation adversely afected his right to make a purposeful and efective representation. We are of the opinion that in the facts of the present case the petitioner has failed to do so Learned APP is justifed in bringing to the notice of this Court that the representation in the present case was made by the petitioner through his advocate and that neither the petitioner nor his advocate at any point in time claimed that wrong translation of the said documents had prejudicially afected the right of the petitioner to make a purposeful representation. Therefore we fnd that there is no substance in this ground also As regards the third ground pertaining to alleged non application of mind on the part of the respondent No.1 i.e detaining authority while issuing the detention order we have perused the grounds of detention as also the entire record of the case. In the grounds of detention respondent No.1 has not only given the past history but the said authority has also recorded the number of FIRs registered against the petitioner in respect of which the petitioner is facing trial. The respondent No.1 has noted chapter proceedings initiated against the petitioner as also recent ofences in the form of FIRs registered against the petitioner for serious ofences under the Indian WP 336 21.doc Penal Code as well as the Arms Act. The respondent No.1 has then referred to the two in camera statements indicating the activities of the petitioner and the manner in which his activities have prejudicially afected public order In this backdrop we fnd that the ground of non application of mind raised on behalf of the petitioner cannot be sustained. The judgment on which the learned counsel for the petitioner has placed reliance in this regard i.e. the case of Vijay Ganesh Gajre is distinguishable on facts because in the said case this Court found that the detaining authority had wrongly placed reliance on certain FIRs and that the subjective satisfaction of the detaining authority was on wrong set of facts. Such is not the case here and this is evident from the contents of the grounds of detention in the present In view of the above since we have found that the grounds of challenge specifcally raised on behalf of the petitioner are without any substance the writ petition deserves to be dismissed. Accordingly the writ petition is dismissed. MANISH PITALE J S. S. SHINDE J] 