2024 (6) TMI 1269 - HC - Customs

Habeas Corpus Petition - Detention on the ground of smuggling of gold of foreign origin from Srilanka - detention order served belatedly - defective translation of the word representation - HELD THAT - This court is of the view that though there there is no hard and fast rule fixing any time limit for considering the representation, there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. Timely and expeditious communication of grounds and disposal of representation in the cases of preventive detention has been dealt with elaborately by a Full Bench in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others 2021 (10) TMI 1378 - SUPREME COURT where it was held that 'The delay by the State Government in disposing of the representation and by the Central and State Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA.' A similar stand has been taken in the case of KAMLESHKUMAR ISHWARDAS PATEL VERSUS UOI. 1995 (4) TMI 283 - SUPREME COURT , wherein a question arose for consideration as to when an order for prevention detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu and a Constitution Bench of the Apex Court has held ' Maybe that the detenu is a smuggler whose tribe (and how their numbers increase ) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus.' In the case on hand, there is a delay of seven days on the part of the detaining authority in forwarding the representation of the petitioner to the sponsoring authority. A feeble stand has been taken on behalf of the respondents contending that the representation was made in Tamil requiring translation and the intervening two closed holidays and two Restricted holidays had caused the delay of a few days and the same cannot be a ground for interference. It may not be appropriate for the respondents to take a stand that the intervening restricted holidays had prevented the execution of their assignment to forward the representation. In the circumstances, this court is of the view that the delay on the part of the detaining authority in forwarding the representation of the petitioner to the sponsoring authority has not been properly explained and such delay is also a ground for interference by this court - this court is of the view that the least safeguards guaranteed by the Constitution are denied to the detenus and thereby, this court is of the view that the detention order is liable to be set aside. The Habeas Corpus Petition is allowed.

Summary

Issues Involved:
1. Delay in serving the detention order and grounds of detention.
2. Defective translation of the grounds of detention.
3. Non-forwarding of representation to the Advisory Board.
4. Delay in forwarding the representation to the sponsoring authority.

Detailed Analysis:

1. Delay in Serving the Detention Order and Grounds of Detention:
The petitioner argued that the detention order dated 21.09.2023 was not served on the detenu on the same day of arrest, i.e., 27.09.2023, but was served only on 30.09.2023. The court found that the detenu was served with the detention order within a reasonable period of three days, which does not constitute an inordinate delay. The delay in serving the Tamil version of the reply from the second respondent on 9.11.2023 was deemed non-prejudicial as it was not essential for the petitioner to make an effective representation.

2. Defective Translation of the Grounds of Detention:
The petitioner claimed that the Tamil version of the grounds of detention had errors, particularly in translating the word "representation," which misled the petitioner. The court noted that although the word "gpujpepjpj;Jtj;ij" was used instead of the correct term "KiwaPL," the petitioner was not misled as she had submitted her representation. However, the court found another significant translation error regarding the address of the State Advisory Board, which led to the return of the petitioner's representation with the postal endorsement "no such person."

3. Non-forwarding of Representation to the Advisory Board:
The court observed that the representation dated 29.09.2023, sent by the petitioner to the third respondent, was not placed before the Advisory Board. The court emphasized that even if the representation sought grounds of detention and booklet, it contained an allegation against the detaining authority, which should have been disclosed to the Advisory Board. The failure to do so was deemed significant, particularly in light of the Supreme Court's ruling in Golam Biswas vs. Union of India (2015) 16 SCC 177, which mandates forwarding such representations to the Advisory Board.

4. Delay in Forwarding the Representation to the Sponsoring Authority:
The representation dated 20.10.2023 was received by the detaining authority on 10.11.2023 and forwarded to the sponsoring authority only on 17.11.2023, resulting in a delay of seven days. The court found the explanation for this delay, which included intervening holidays, insufficient. It emphasized that preventive detention cases require timely and expeditious handling, as highlighted in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur (2021) 20 SCC 98. The court concluded that the delay was not properly explained and constituted a breach of the constitutional imperative for timely consideration of representations.

Conclusion:
The court held that the detention order was liable to be set aside due to the defective translation of the grounds of detention, non-forwarding of the representation to the Advisory Board, and the unexplained delay in forwarding the representation to the sponsoring authority. Consequently, the Habeas Corpus Petition was allowed, and the detenu was ordered to be released unless required in connection with any other case.