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 & 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 & 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.”

 “In this backdrop, we find that the ground of nonapplication 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 (supra) 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 the 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 case. In view of the above, since we have found that the grounds of challenge specifically raised on behalf of the petitioner are without any substance, the writ petition deserves to be dismissed. Accordingly, the writ petition is dismissed.”

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