2000 (11) TMI 1180 - HC - FEMA

Summary

Issues Involved:
1. Defective translation of detention order and grounds of detention.
2. Inordinate delay in the disposal of the detenu's representation.
3. Validity of detention order post-repeal of FERA and enactment of FEMA.

Detailed Analysis:

Issue 1: Defective Translation of Detention Order and Grounds of Detention

The petitioner contended that the Tamil translations of the detention order and grounds of detention did not convey the true and proper purport of the original English documents, thus affecting the detenu's constitutional right to make an effective representation. The court examined precedents, including Vijayakumar Dharna v. Union of India, Smt. Manju Jain v. State of Karnataka, and Chhiba Vallabhabhai Tandel v. Union of India, to understand the implications of incorrect translations. The court found that the translations in this case were accurate and conveyed the correct meaning. The court emphasized that while word-for-word translations might be impossible, the translations provided were sufficient to ensure that the detenu's constitutional rights were not violated. Thus, the first ground was rejected.

Issue 2: Inordinate Delay in the Disposal of the Detenu's Representation

The petitioner argued that the representation dated 23/24.3.2000 was not disposed of until 10.5.2000, and the delay was unexplained. The court noted that the delay was due to the representation being sent to the COFEPOSA Advisory Board instead of the Detaining Authority or the Central Government, as instructed by the detenu himself. The court found that the delay from 24.3.2000 to 1.5.2000 was satisfactorily explained and was not due to any laches on the part of the respondents. The period from 1.5.2000 to 10.5.2000 was also satisfactorily explained. Thus, the second ground was rejected.

Issue 3: Validity of Detention Order Post-Repeal of FERA and Enactment of FEMA

The petitioner contended that the detention order, based on the likelihood of violating FERA, was invalid after FERA was repealed and replaced by FEMA, which decriminalized certain acts previously considered offences under FERA. The court agreed, stating that the basis for the detention had disappeared with the repeal of FERA. The court noted that FEMA provided for civil penalties instead of criminal offences, and the detention order could not be sustained under these new regulations. The court concluded that while the authority could reconsider the matter under FEMA provisions, the existing detention order could not continue. Thus, the third ground was upheld.

Conclusion:

The court quashed the detention order dated 8.2.2000 and directed that the detenu be set free forthwith, provided he was not required in any other case. The court allowed the petition on the limited ground that the detention order could not be sustained after the repeal of FERA and enactment of FEMA.