2009 (3) TMI 1035 - HC - Customs

Summary

Issues Involved:
1. Validity of the detention order due to improper communication of additional documents.
2. Denial of legal assistance to the detenu.
3. Incorrect translation of documents provided to the detenu.

Summary:

Issue 1: Validity of the detention order due to improper communication of additional documents

The petitioner, detained u/s 3(1)(i) of the COFEPOSA Act, challenged the detention order. It was argued that additional documents were supplied without specifying their purpose or whether they would be placed before the Advisory Board, causing confusion and impairing the detenu's ability to make an effective representation. The court referenced the judgment in STATE OF T.N. vs. SENTHIL KUMAR AND ANOTHER [1999 SCC (Cri) 299], which held that such omissions infringe on the detenu's right under Article 22(5) of the Constitution. The court agreed that the manner of document service caused confusion and impaired the detenu's representation rights.

Issue 2: Denial of legal assistance to the detenu

The petitioner requested legal assistance in his representation dated 26.6.2008, which was rejected on 14.7.2008, after the Advisory Board meeting on 10.7.2008. The court cited STATE OF MAHARASHTRA AND OTHERS vs. ZUBAIR HAJI QUASIM [(2008) 3 MLJ (Crl) 627 (SC)], emphasizing that while the detenu has no right u/s 8(e) of the COFEPOSA Act to appear through a legal practitioner, any request for legal assistance must be considered with due application of mind. The court found no evidence that the Advisory Board considered the request, thus applying the Apex Court's judgment to the case.

Issue 3: Incorrect translation of documents provided to the detenu

The petitioner argued that incorrect translations of documents were provided, impairing his ability to make an effective representation. The court noted that the correct translations were supplied only after the Advisory Board meeting, causing prejudice to the detenu. The court referenced an unreported order in W.P.No.6492 of 1990, which set aside a detention order under similar circumstances. The court found that the respondents' failure to provide correct translations in a timely manner caused significant prejudice to the detenu.

Conclusion:

The court found the detention order invalid due to improper communication of additional documents, denial of timely legal assistance, and incorrect translations. The Habeas Corpus Petition was allowed, and the petitioner/detenu was ordered to be set at liberty forthwith, if not required in any other case.