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TMI Blog2024 (1) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue who was in a correctional home steadfastly refused to receive them despite persuasive attempts made by the Respondents. A panchnama was prepared, and before its due execution another abortive attempt was made to make him receive the grounds of detention, along with the relevant documents. The detenue reiterated his earlier stand, however, a facility was extended to him to read the documents in its entirety. The panchnama was signed not only by two independent witnesses but the detenue as well. Interestingly, the detenue after signing the panchnama in the English language has proceeded further to write I have refused to receive any document , leading to the obvious inference that his so called ignorance of English was only an afterthought. 5. Two more attempts were made by the respondents to serve the documents along with the grounds of detention. After refusing to receive the same on the second occasion i.e., on 03.10.2023 it was finally received by him on 10.10.2023. Interestingly, the detenue, through the appellant, filed the Writ Petition on 03.10.2023 inter alia contending that the respondents have not served the grounds of detention. The Division Bench of the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was duly complied with. Even in the grounds of detention there are adequate averments clearly indicating detenue s right to make representation to the named authorities. The contention raised is only an afterthought and therefore the present appeal deserves to be dismissed. 9. Despite refusal of the detenue on the first occasion in receiving the grounds of detention, a second attempt was made on 03.10.2023, and ultimately on 10.10.2023, the detenue received the ground of detention with all the relevant documents. These chronological events amply suggest the conduct of the detenue in evading to receive the grounds of detention. DISCUSSION 10. Article 22(5) of the Constitution of India can broadly be divided into two parts. Of these two parts there lies an underlying duty and obligation on the part of the authorities in not only serving the grounds of detention as soon as the case may be, after due service of the detention order and communication of the grounds of detention along with the documents relied upon in the language which he understands, but also for the purpose of affording him the earliest opportunity of making a representation questioning the detention order. 11. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 14. Having reiterated the said principle of law, the question for consideration is to what extent a communication can be made both orally and in writing . 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. We may clarify, 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. 15. We would lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . xxx xxx xxx 12 The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds i.e., materials on which the detention order was made. In our opinion, it is therefore clear that while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity. 13. The argument advanced on behalf of the respondent mixes up the two rights given under Art. 22(5) and converts it into one indivisible right. We are unable to read Art. 22(5) in that way. As pointed out above, the two rights are connected by the word and . Furthermore, the use of the words as soon as may be with the obligation to furnish the grounds of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that while the authorities must discharge the duty in furnishing grounds for the order of detention as soon as may be and also provide the earliest opportunity to the detained person to make the representation , the number of communications from the detaining authority to the detenu may be one or more and they may be made at intervals, provided the two parts of the aforesaid duty are discharged in accordance with the wording of cl. (5). So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the detenu mentioned in the clause. They may consist of a narration of facts or particulars relating to the grounds already supplied. But in doing so, the time factor in respect of the second duty, viz., to give the detained person the earliest opportunity to make a representation, cannot be overlooked. That appears to us to be the result of cl. (5) of Art. 22. (emphasis supplied) Harikisan v. State of Maharashtra, AIR 1962 SC 911 7. It has not been found by the High Court that the appellant knew enough English to understand the grounds of his detention. The High Court has only stated that he has studied up to 7th Hind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. Communication, in this context, must therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based. In this case the grounds are several are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communicating the grounds. Communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based. ( emphasis supplied ) 16. On facts, we find that the detenue is not entitled to any relief as he has not only suppressed the facts as proved in his refusal to receive the grounds of detention, apart from reading them in detail, but has also approached the Court with unclean hands. It seems to us that it is a deliberate ploy adopted by the detenue to secure favourable orders from the Court. A perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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