2022 (12) TMI 1069 - HC - Customs

Detention order - Smuggling - illicit import of foreign origin gold into India via air cargo - prohibited item or not - whether supply of illegible RUDs vitiates the subjective satisfaction of the Detaining Authority thereby rendering the impugned detention order invalid? - whether detenu s constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of relevant documents, in a language which the detenu understands; thereby rendering the order of detention illegal and bad? HELD THAT - It is well settled and not in dispute that under the provisions of Section 3 of COFEPOSA, it is only the Detaining Authority, which can ultimately decide to pass or not, a detention order against any person, and that too, after perusing each and every document and material placed before it. It is also not in dispute that the subjective satisfaction of the Detaining Authority itself is to be arrived at after perusing all the relevant documents and material produced. This is a constitutionally provided condition precedent for passing a valid order of detention. The issue, as to whether the non-supply of certain RUDs and the supply of illegible RUDs, vitiates the subjective satisfaction arrived at by the Detaining Authority; and whether the detention order resultantly passed is vitiated on the ground of non-application of mind, is concerned; we have considered the rival submissions, as well as the material placed before us in the present proceedings. It was observed by this Court from a perusal of the relevant original record that several RUDs; including not only those supplied to the Detenu; but also those on the record with the Detaining Authority, are illegible i.e., not readable. The RUDs supplied to the detenu, as well as, relied upon by the Detaining Authority in arriving at its subjective satisfaction were admittedly illegible, therefore, grossly violating the constitutional right of making an effective representation, guaranteed to the detenu under Articles 14, 21 and 22(5) of the Constitution of India. Keeping in mind the constitutional mandate of Article 22(5) as well as the dictum in the plethora of Supreme Court decisions, we consider it incumbent to emphasize on the legal necessity of furnishing the grounds of detention to the detenu in a language that the latter understands. More specifically, the Supreme Court has observed that oral explanation or oral translation of the grounds of detention would not amount to communicating the grounds to a detenu because communicating the grounds of detention, effectively and fully to a detenu implies that the grounds must be furnished to him in a language which the detenu understands; and if that entails translation of the grounds into such language, then that is unquestionably a part of the Constitutional mandate. The failure and non-supply of legible/translated copies of all RUDs despite a request and representation made by the detenu for the supply of the same, renders the order of detention illegal and bad in law; and vitiates the subjective satisfaction arrived at by the Detaining Authority - the Detaining Authority gravely erred in relying upon the illegible documents which is equivalent to non-placement of translated-RUDs in a language which the detenu understands; by the act of omitting them from due consideration, which consequently vitiates the subjective satisfaction arrived at by the Detaining Authority. The impugned detention order stands invalidated - petition allowed.

Issues Involved:
1. Whether the supply of illegible Relied Upon Documents (RUDs) vitiates the 'subjective satisfaction' of the Detaining Authority, thereby rendering the impugned detention order invalid?
2. Whether the detenu's constitutionally secured right of making an effective representation has been jeopardized by the non-supply of relevant documents in a language which the detenu understands, thereby rendering the order of detention illegal and bad?

Issue-wise Analysis:

Issue 1: Supply of Illegible RUDs and Subjective Satisfaction of the Detaining Authority

The court examined whether the supply of illegible RUDs vitiates the subjective satisfaction of the Detaining Authority. It was observed that several RUDs, both those supplied to the detenu and those on record with the Detaining Authority, were illegible. The court referenced the Supreme Court's decision in State of Manipur and Others V Buyamayum Abdul Hanan alias Anand and Another, which held that the supply of illegible or blurred copies of documents relied upon by the Detaining Authority amounts to a violation of Article 22(5) of the Constitution. The court also cited its own decision in Mohd. Nashruddin v. Union of India & Ors., which emphasized that non-supply of legible copies of relevant documents, despite a request, renders the order of detention illegal and bad. Consequently, the court concluded that the illegible RUDs grossly violated the constitutional right of the detenu to make an effective representation, thereby vitiating the subjective satisfaction of the Detaining Authority.

Issue 2: Non-Supply of Relevant Documents in a Language Understood by the Detenu

The court considered whether the detenu's right to make an effective representation was jeopardized by the non-supply of relevant documents in a language he understands. The detenu had specifically requested translated copies of documents in his representations dated 25.03.2022 and 15.04.2022. The court noted that the WhatsApp chat (page 58 of the RUDs) was in Chinese, and the detenu's signatures on the document did not imply he understood the contents. The court cited several Supreme Court decisions, including Harikisan vs. State of Maharashtra and Chaju Ram vs. State of Jammu & Kashmir, which held that grounds of detention must be communicated in a language the detenu understands, and oral translation or explanation does not fulfill this requirement. The court emphasized that the constitutional mandate of Article 22(5) requires the grounds of detention to be furnished in a language understood by the detenu. The court rejected the respondents' contention that the detenu must show prejudice caused by the non-supply of translated documents, referencing the Supreme Court's decision in Mrs. Tsering Dolkar vs. Administrator, Union Territory Of Delhi & Others, which stated that the test is one of strict compliance with the provisions of the Act, not prejudice. The court concluded that the non-supply of translated documents vitiated the subjective satisfaction of the Detaining Authority.

Conclusion:

The court held that the Detaining Authority erred in relying on illegible documents and non-translated RUDs, which vitiated the subjective satisfaction required for a valid detention order. Consequently, the impugned detention order was invalidated. The writ petition succeeded, and the detention order dated 01.02.2022 was set aside and quashed. The detenu was directed to be released forthwith unless required in connection with any other case.

← Previous Next →