1990 (1) TMI 78 - SC - Customs

Whether the courts have necessarily to accept what is stated by the detenu or it is permissible for the Court to consider the facts and circumstances of the case so as to have a reasonable view as to the detenu s knowlege of the language in which the grounds of detention were served particularly in a case where the detenu is a foreign national? Held that - Considering cases where while a citizen and resident of the country deserves preventive detention apart from criminal prosecution in case of a foreign national not resident of the country he may not be justifiably subjected to preventive detention in the event of which no international legal assistance is possible unlike in case of criminal prosecution and punishment. Considering the facts and circumstances of the instant case however we find sufficient evidence of the detenu having visited this country though on earlier occasions he was not found to have been carrying on such smuggling activities. Finding force in the second submission and hold that continued detention of the detenu has been rendered illegal by non-consideration of his representation by the appropriate Government according to law resulting in violation of Article 22(5) of the Constitution; and he is to be set at liberty forthwith in this case.

Issues Involved:
1. Language of the grounds of detention.
2. Non-consideration of the detenu's representation.

Detailed Analysis:

1. Language of the Grounds of Detention:

The first issue raised was whether the detenu, a Polish national, was provided with the grounds of detention in a language he understood, as required under Article 22(5) of the Indian Constitution. The detenu claimed he only knew Polish and did not understand English, the language in which the grounds of detention were served. The detenu's counsel argued that this failure to provide the grounds in a language understood by the detenu violated his constitutional rights.

The court examined several precedents, including *Harikisan v. The State of Maharashtra* and *Razia Umar Bakshi v. Union of India*, which established that the grounds of detention must be communicated in a language understood by the detenu to enable him to make an effective representation. The court emphasized that mere verbal explanations without written translations do not suffice.

However, in this case, the court noted that the detenu had signed documents in English and had not complained about the language barrier during the initial stages of detention. The court found that the detenu had a working knowledge of English, as evidenced by his interactions and corrections made during interrogations. The court concluded that the detenu was feigning ignorance of English and held that there was no violation of Article 22(5) on this ground.

2. Non-Consideration of the Detenu's Representation:

The second issue was the non-consideration of the detenu's representation dated 13-6-1989, which requested the grounds of detention in Polish. The representation was not acted upon by the appropriate government, which was argued to be a violation of Article 22(5).

The court cited several cases, including *John Martin v. State of West Bengal* and *Vimalchand Jawantraj Jain v. Shri Pradhan*, to emphasize that the representation of a detenu must be considered by the appropriate government at the earliest opportunity. The court noted that the representation in this case was not disposed of by the government, which was mandatory under Article 22(5).

The court held that the failure to consider the representation rendered the detention illegal. The court reiterated that the representation, even if addressed to the Advisory Board, must be treated as a representation to the government and acted upon accordingly.

Conclusion:

The court found that while the detenu's claim of not understanding English was not credible, the non-consideration of his representation by the appropriate government violated his constitutional rights under Article 22(5). Consequently, the court ordered the detenu's immediate release.

Summary:

The Supreme Court of India addressed two primary issues in this case: the language of the grounds of detention and the non-consideration of the detenu's representation. The court held that the detenu, a Polish national, had a working knowledge of English and rejected the claim that the grounds of detention were not communicated in a language understood by him. However, the court found that the detenu's representation was not considered by the appropriate government, which violated Article 22(5) of the Constitution. As a result, the court ordered the detenu's immediate release.

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