2024 (1) TMI 294 - SC - Indian Laws

Validity of the detention order - refusal of the High Court of Calcutta to set aside the order of detention passed by the respondents - Smuggling of gold and foreign currencies - bounden duty of the authorities in serving the grounds of detention containing such grounds which weighed in the mind of the detaining authority in passing the detention order - HELD THAT - There is a subtle difference between the background facts leading to detention order and the grounds of detention. While the background facts are not required in detail, the grounds of detention which determine the detention order ought to be found in the grounds supplied to the detenue. In other words, the knowledge of the detenue is to the subjective satisfaction of a detaining authority discernible from the grounds supplied to him. It is only thereafter that a detenue could be in a better position to take a decision as to whether he should challenge the detention order in the manner known to law. This includes his decision to make a representation to various authorities including the detaining officer. Therefore, an effective knowledge qua a detenue is of utmost importance. To what extent a communication can be made both orally and in writing ? - HELD THAT - In a case where a detenue is not in a position to understand the language, a mere verbal explanation would not suffice. Similarly, where a detenue consciously declines to receive the grounds of detention, he has to be informed about his right to make a representation. In such a scenario, the question as to whether the grounds of detention contained a statement that a detenue has got a right to make a representation to named authorities or not, pales into insignificance. This is for the reason that a detenue despite refusing to receive the grounds of detention might still change his mind and receive them if duly informed of his right to challenge a detention order by way of a representation - in a case where a detenue receives the ground of detention in the language known to him which contains a clear statement over his right to make a representation, there is no need for informing verbally once again. Such an exercise, however, would be required when the grounds of detention do not indicate so. The grounds of detention forming the basis of the satisfaction of the detaining authority, were made known to the detenue. He cannot seek all the facts, including access to the telephonic conversation relied on, especially when he did not exercise his right to make the representation. It is pertinent to mention that we are only dealing with the validity of the detention order and not a regular criminal case against the accused. There are no ground to interfere with the impugned order passed by the High Court of Calcutta - appeal dismissed.

Summary

Issues Involved:
1. Validity of the detention order.
2. Compliance with Article 22(5) of the Constitution of India.
3. Adequacy of communication of grounds of detention and the right to make a representation.

Summary:

Validity of the Detention Order:
The brother-in-law of the detenue challenged the validity of the detention order issued under Section 3 of the COFEPOSA Act, 1974, and the refusal of the High Court of Calcutta to set it aside. The detenue was apprehended following the recovery of gold and foreign currencies and was subsequently detained on 19.09.2023.

Compliance with Article 22(5) of the Constitution of India:
The appellant argued that the detenue was not informed of his right to make a representation against the detention order, as required under Article 22(5) of the Constitution. However, the respondents contended that due procedure was followed, including attempts to serve the grounds of detention in Bengali and the preparation of a panchnama documenting the detenue's refusal to receive the documents.

Adequacy of Communication of Grounds of Detention and the Right to Make a Representation:
The Court emphasized that Article 22(5) entails two parts: serving the grounds of detention in a language understandable to the detenue and informing him of his right to make a representation. The detenue's refusal to receive the documents, despite multiple attempts, and his ability to sign the panchnama in English indicated that he was aware of his rights. The Court found no error in the procedure adopted by the respondents and noted that the grounds of detention were adequately communicated.

Discussion:
The Court reiterated that the grounds of detention must be communicated effectively to enable the detenue to make a representation. The detenue's refusal to receive the documents and his subsequent actions suggested a deliberate attempt to evade the process. The Court found that the respondents had complied with the legal requirements, including translating documents into Bengali and informing the detenue of his rights.

Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court of Calcutta's decision. The Court found no grounds to interfere with the detention order, as the respondents had duly complied with the legal requirements, and the detenue had approached the Court with unclean hands. Pending applications were also disposed of.