1982 (10) TMI 206 - SC - FEMA

Whether such delay was justified by existence of any exceptional circumstances as required by s. 3 (3) of the COFEPOSA for in the absence of exceptional circumstances delay beyond normal period of five days would be a breach of the constitutional as well as the legislative mandate? Held that - In the instant case, for instance, if the alleged exceptional circumstances were communicated to the detenu at the time of the delayed supply of the concerned documents and statements in Urdu language he could have satisfied the superior authority or the Advisory Board that the exceptional circumstances did not really obtain in the case and the delay had vitiated his detention. In other words, what he has done before the Court now, he could have done before the superior authorities or the Advisory Board. In our view, therefore, the impugned failure in this case constitutes another breach of the safeguard contained in Art. 22(5) read with s. 3(3) of the COFEPOSA and vitiates the continued detention of the petitioner. The documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Art. 22(5) is clearly violated. Having regard to the above discussion it is clear to us that the continued detention of the petitioner would be illegal and we accordingly quash the same and direct him to be released forthwith. Appeal allowed.

Issues Involved:

1. Legality of the detention order dated 1st July 1982 under COFEPOSA.
2. Compliance with constitutional safeguards under Article 22(5) of the Constitution.
3. Timely communication of grounds of detention and documents in a language understood by the detenu.
4. Justification of delay in supplying Urdu translations of documents.
5. Non-supply of Urdu translations of certain documents and statements.

Issue-wise Detailed Analysis:

1. Legality of the Detention Order Dated 1st July 1982 Under COFEPOSA:
The petitioner, Ibrahim Ahmad Batti, challenged the detention order dated 1st July 1982 issued under Section 3(1) of COFEPOSA, seeking a writ of habeas corpus for his release. The detention was based on the seizure of contraband items and the recording of confessional statements. The grounds of detention and related documents were served in English and Urdu. The Advisory Board initially found sufficient cause for detention but later noted a violation of Article 22(5) due to the failure to supply Urdu translations, leading to the revocation of the initial detention order.

2. Compliance with Constitutional Safeguards Under Article 22(5) of the Constitution:
Article 22(5) mandates that the detaining authority must communicate the grounds of detention to the detenu and afford the earliest opportunity to make a representation. Section 3(3) of COFEPOSA stipulates that this communication should occur within five days, extendable to fifteen days in exceptional circumstances with reasons recorded in writing. The court emphasized that the grounds and all supporting materials must be communicated in a language understood by the detenu.

3. Timely Communication of Grounds of Detention and Documents in a Language Understood by the Detenu:
The detenu received the grounds of detention and documents in English and Hindi on 7th July 1982, but Urdu translations of the bulk of documents were only supplied on 15th July 1982, beyond the normal period of five days. The court reiterated that the grounds and all incorporated materials must be communicated in a language the detenu understands within the prescribed time frame to enable effective representation.

4. Justification of Delay in Supplying Urdu Translations of Documents:
The respondents attributed the delay to the Holy month of Ramzan, during which Urdu translators were available for limited hours. The court found this explanation insufficient, noting that the detaining authority could have prepared the translations before issuing the detention order. The court held that the delay was not justified by exceptional circumstances, constituting a breach of constitutional and legislative mandates.

5. Non-supply of Urdu Translations of Certain Documents and Statements:
Several documents and statements were not translated into Urdu and supplied to the detenu. The respondents argued that the detenu understood English figures and could converse in Hindi and Gujarati. The court rejected this explanation, emphasizing that the detenu's primary language was Urdu, and the failure to supply translations of material documents prejudiced his ability to make an effective representation. The court highlighted the importance of providing all relevant documents in a language understood by the detenu.

Conclusion:
The court concluded that the continued detention of the petitioner was illegal due to the breach of constitutional safeguards under Article 22(5) and Section 3(3) of COFEPOSA. The court quashed the detention order and directed the immediate release of the petitioner. The petition was allowed.

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