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TMI Blog2000 (11) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 8.2.2000 and copies of documents with list, relied upon by the Detaining Authority for issuing the said order of detention. Tamil Translations of the detention order, Grounds of detention and the documents with list were also served along with the Detention Order. On service of said detention order, the detenu was taken into custody. 2. The detenu addressed a representation dated 23.3.2000 to (i) Chairman, COFEPOSA Advisory Board; (ii) Detaining Authority; and (iii) the Central Government, Secretary to Government of India, Ministry of Finance, Department of Revenue, requesting that he may be released from detention. The representation was rejected by the Detaining Authority and the Central Government by two independent orders dated 10.5.2000 and a memo dated 11.5.2000 was served on the detenu informing him of such rejection. 3. Thereafter, petitioner has filed the present writ petition seeking a writ of habeas corpus, declaring that the detention of detenu under the Order dated 8.2.2000, as illegal and ab initio void. In the petition, the petitioner is described as the wife of the Detenu. This is apparently a mistake. Apparently the petitioner is the brother-in-l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o custody nor prosecuted for violations of FEMA. In the circumstances, the very basis of the order of detention has disappeared and consequently, the detention cannot be continued. RE: GROUND (I): 5. The first submission is that the Tamil translations of the order of detention and the grounds of detention do not convey the correct meaning of the order and the grounds the original of which are in English. The petitioner relied on the decision of the Supreme Court in Vijayakumar Dharna v. Union of India , an unreported decision of this Court in Smt. Manju Jain v. State of Karnataka, WP No. 49 (HC) of 1987, decided on 27.8.1987 and a decision of the Delhi High Court in Chhiba Vallabhabhai Tandel Order Union of India 1984(2) Crimes 904. 6. In Vjayakumar Dharna's case, the Gurumukhi version of the detention order was found to be not a correct translation. While the grounds of detention stated that" with a view to prevent you from concealing, transporting smuggled goods as well as dealing in smuggled goods", which was a ground for detention under Clauses (iii) and (iv) of Section 3(1) of COFEPOSA Act, the Gurumukhi version stated that the detention was necessary "with a view to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the detention order giving the reason for detention: with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. According to petitioner, the Tamil translation of said portion reads as follows: (Editor: The text of the vernacular matter has not been reproduced. required.) According to petitioner, the meaning of the Tamil Translation (when translated again into English) is as follows: in future, he should not do anything detrimental in regard to foreign exchange and smuggling Act. 11. It is contended that the meaning of the word 'augmentation' is not properly conveyed. The dictionary meaning of the word 'augmentation' is to make greater in size, number strength. Amount etc. The translation of the words "prejudicial to augmentation" as (Editor: The text of the vernacular matter has not been reproduced. Please write to reflects the true and proper meaning having regard to the context. 12. The second grievance is that Tamil translation of the Detention order refers to 'smuggling', as a ground for detention, even though the original order does not refer to 'smuggling'. We have gone through the Tamil version. It does not ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings and prosecution proceedings under the FERA 1973 are likely to be initiated against you in due course by the appropriate authority separately to decide your penal liability, which are punitive in nature. Considering your past activities and your 'propensity to indulge' in such activities in the future, 1 am satisfied that your detention under the COFEPOSA Act, 1974 is the only remedy at this state We find the Tamil version represents a true and correct free translation of the said paragraphs and do not convey any meaning different from the original grounds of detention in English, nor omits or adds anything to it. 15. It is contended that original order in English refers to detenu's high propensity and potentially to carry on such prejudicial activities in future', while Tamil version refers to the detenu's 'courage and determination to carry on prejudicial activities'. The word 'propensity' means inclination of mind or disposition or tendency to move in a certain direction. 'Potentiality' means the existing possibility. It is very difficult to have an exact and correct Tamil translation of said words. Tamil translation used the words. (Editor: The text of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government at any time before the Hon'ble Advisory Board forwarded the same to the Ministry alongwith its letter dated 1.5.2000 and thereafter the same was promptly and independently considered disposed of by both the Authorities. Learned counsel of the petitioner admitted that time spent between 1.5.2000 and 10.5.2000 was properly explained, but claimed that there is no explanation for the period 24.3.2000 to 1.5.2000. He, therefore, contended on the ground of inordinate delay in considering the representation, the order of detention should be quashed. In this behalf reliance is placed on the decisions of the Supreme Court in Jayanarayan Sukul v. State of West Bengal, Harish Pahwa v. State of U.P., Jai Prakash v. District Magistrate, Bulandshahr , Shyam Ambalal Siroya v. Union of India and a decision of this Court in Abdul Razack v. State of Karnataka WP No. 68 of 1999 decided on 28.7.1989. 17. In Jayanarayan Sukufs case, nine copies of representation addressed to the Home Secretary were submitted by the detenu to the Jail Superintendent. They were not addressed either to the State Government or Central Government. The Jail Superintendent, therefore, sent all the copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider it necessary to emphasize that the question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case. if the Court is satisfied that the delay was occasioned not by any lack or diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.... (emphasis supplied) He next relied on the following observations in Kantilal Hirji Shah v. State of TamilNadu, WP (Criminal) 3 of 2000, decided by the Supreme Court on 26.4.2000 : 2000 (71) ECC 19 (SC): A detenu under Article 22(5) has a right that the representation should be considered by the appropriate authority as expeditiously as possible and there should be no unexplained delay in the matter of disposal of the representation. In our view, therefore, the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on account of the specific act of the detenu himself, in requesting the Senior Superintendent of Central Prison, Bangalore, to send all the copies of representation to the COFEPOSA Advisory Board, Delhi High Court, neither the Central Government nor the Detaining Authority can be found fault for the delay between 25.3.2000 and 1.5.2000. The period from the date of representation to the Jail authority till 1.5.2000 is, thus, satisfactorily explained, as being on account of the mistake on the part of the detenu himself. The period from 1.5.2000 to 10.5.2000 has been satisfactorily explained and in fact the learned Counsel for petitioner fairly conceded that period between 1.5.2000 and 10.5.2000 has been explained satisfactorily. The second contention is also therefore rejected. 20. In the writ petition, petitioner has referred to another delay. It is contended that the investigation was effectively completed on 14.10.1999, whereas the detention order was issued on 8.2.2000 and the inordinate delay in issuing the detention order vitiates the detention. However, learned Counsel for the petitioner did not pursue the said ground. We also find no merit in the said contention. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, replacement of FERA by FEMA with effect from 1.6.2000 does not in any way affect the detentions. It is also contended that the offences committed prior to 1.6.2000 when FERA was in force, continue to be governed by the provisions of FERA till expiry of two years from 1.6.2000. 24. The order of detention is to prevent the detenu from committing certain acts which were likely to be prejudicial to the augmentation of foreign exchange, that is violation of foreign exchange regulations under FERA. That Act has been repealed. The Act that replaced FERA, that is FEMA is completely different and what were criminal offences under FERA are no longer criminal offences. The contention of the respondents that Section 3 of COFEPOSA Act does not refer to FERA and therefore repeal of FERA has no effect on the preventive detention of the detenu, is not tenable. The very object of COFEPOSA Act in so far as conservation of foreign exchange is concerned, is to prevent violation of foreign exchange which was governed by FERA. Detention of detenu is also to prevent violation of foreign exchange regulations, as contained in FERA. When FERA has been repealed, naturally violations contemplated un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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