2008 (6) TMI 130 - HC - Customs

Challenge to an order of detention passed u/s 3(1)(i) of the COFEPOSA Act - date of arrest as found in the English version and in the Tamil version, is found to be different. Two mahazars were prepared, and they contain different facts as to the recovery of the currencies - All would go to show that when such discrepancies were found, duty is cast upon the detaining authority to call for necessary explanation; but, he has miserably failed to do so detention order is set aside

Summary

Issues:
Challenge to detention order under COFEPOSA Act based on violation of Customs Act; Allegations of discrepancies in documentation and language barrier affecting effective representation.

Analysis:
1. The challenge in this case was against an order of detention passed under Sec. 3(1)(i) of the COFEPOSA Act due to the husband of the petitioner being found in possession of foreign currency without a permit, leading to his arrest under the Customs Act.

2. The petitioner's counsel argued that the detenue's limited education and language proficiency were not taken into account during the proceedings, as he could only understand Tamil. Despite serving a Tamil version of the order, discrepancies in the content prevented effective representation, violating the detenue's rights.

3. The counsel further highlighted discrepancies in the mahazars prepared by the sponsoring authority regarding the recovery of foreign currencies and the date of arrest, emphasizing the detaining authority's failure to address these inconsistencies, indicating a lack of proper scrutiny.

4. Referring to a Supreme Court case, the counsel emphasized the importance of providing documents in a language understood by the detenue to ensure meaningful representation, which was not met in this case due to inaccurate translations, rendering the detention order infirm.

5. The court acknowledged the detenue's lack of comprehension of the English version of the order and the discrepancies in documentation, concluding that the detaining authority failed to address these issues, leading to a violation of the detenue's rights and a lack of proper application of mind.

6. Consequently, the court allowed the habeas corpus petition, setting aside the detention order and directing the detenue's immediate release, unless required in connection with another case, based on the identified discrepancies and the failure to ensure effective communication and representation for the detenue.