- (1.) THIS Rule was issued on an application under section 491 of the Code of Criminal Procedure. The petitioner before this Court is the brother of the detenu Om Prokash Agarwalla. The subject-matter of challenge is the present detention of the aforesaid detenu under an order dated December 6, 1971 passed by the District Magistrate, Burdwan in exercise of his powers under section 3 (1) read with section 3 (2) of the Maintenance of Internal security Act, (Act 26 of 1970) The object of detention is to prevent the detenu from acting in any manner pre judicial 10 maintenance of public order. Such detention rests on three grounds set out in the grounds of detention which are proximately related to and appear to us to be quite relevant to the object of detention. But even then for reasons given hereunder, the detention must fail on non-fulfillment of the obligations enjoined by Art. 22 (5) of the constitution.
(2.) THOUGH the order is one dated december 6, 1971, the detenu was actually arrested and put to detention under the order on December 12, 1971. But the order of detention and the grounds were served on the detenu on december 13, 1971. In paragraphs 9 and 10 of the present application the petitioner has clearly made out a case that the detenu who had read up to class II only is for all practical purposes an illiterate man, he knows a little of hindi language but is completely ignorant of English and Bengali. The order and the grounds were served in English language only which the detenu was unable to read or appreciate. It is further stated in paragraph 10 that when he was being so served with such grounds the detenu requested the serving police officer to grant him copies in hindi language but his request was refused by the police officer. It should be noted that such a specific complaint was made in the application under section 491 of the Code of Criminal procedure moved in this Court within ten days from the date of detention. It is not in dispute that the copy of the grounds served on the detenu was in english language.
(3.) IN contesting this Rule at first an affidavit-in-opposition was filed by the respondent No. 2 i. e. the detaining authority who is the District Magistrate of Burdwan. Swearing the relevant paragraphs of this affidavit as true to his own knowledge the respondent No. 2 in paragraph 9 denied that the detenu is an. illiterate man or that he does not understand English or that he could not understand the contents of English grounds even when it had been explain ed to him in Hindi language. In para graph 10 respondent No. 2 further denied that the detenu requested the serving police officer to grant him copies of orders in Hindi or that the detenu was seriously handicapped or could not make any proper representation or that he did not understand the ground nor could he appreciate the same as alleged. Such a statement by the detaining authority was not acceptable to this Court as obviously such statement could not have been within the personal knowledge of the respondent No. 2. At least no circumstance was disclosed in this affidavit wherefrom this Court could satisfy itself that the respondent No. 2 could have any personal knowledge about such matters. Such statement was not based on any information nor any source of information or knowledge disclosed in the affidavit. Such being the position, the case was adjourned and a further opportunity was given to the respondents to meet the relevant allegations. Accordingly a supplemental y affidavit-in-opposition has been filed by one Gurucharan Sarkar, the Officer in charge of Jamuria Police Station who claims to have served the copy of the grounds on the detenu on December 13, 1971. In paragraph 2 of this supplementary affidavit he states that on 13. 12. 71 he served a copy of the memorandum containing grounds on the detenu in the presence of witnesses and the detenu accepted the same and affixed his signature on a copy as a token of his acceptance. This acknowledgment is not disclosed though it is conceded by Mr. Mukherjee who is appearing on behalf of the State that the copy served was in English language. The deponent then goes am to state in paragraph 3, "i, therefore in the presence of the aforesaid witnesses explained the said grounds of detention to the detenu in a manner intelligible ho him and the detenu perfectly under stood the same and did not make any complaint whatsoever. The detenu never asked for any Hindi translation of the said grounds from me. " Gross divergence and reckless nature of averments made in the two affidavits filed on behalf of the respondents have made it difficult for us to place any reliance on the statement, controverting the allegations made in paragraphs 9 and 10 of the petition. It should be noted that the respondent No. 2 himself in his affidavit has denied the claim that the detenu does not understand English language. But this claim is not denied by the serving police officer in his sup plementary affidavit-in-opposition. We have already found the statement of respondent No. 2 to be unacceptable. Such being the position, we feel inclined to accept the case of the petitioner that the detenu is completely ignorant of English language. Not only does the relevant statement made on oath by the petitioner stand uncontroverted but also have we satisfied our selves with reference to the original records produced by Mr. Mukherjee from the Home Department that the detenu could only somehow sign his name in the Hindi script and that too not in a masterly manner.;