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TMI Blog1990 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... , hereinafter referred to as 'the COFEPOSA Act', along with the grounds of detention. On 24-5-1989 he was granted bail by the Calcutta High Court but the same could not be availed of because of the detention order which is now being challenged in this petition. 2. The detention order was passed with a view to preventing the detenu from smuggling goods; and it stated that the detaining authority, namely, the Additional Secretary to the Government of India in the Department of Revenue, Ministry of Finance, was satisfied that the detenu was likely to smuggle goods into and through Calcutta Airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to Section 9(1) of the COFEPOSA Act. In the grounds of detention it was stated, inter alia, that arriving at Calcutta by Thai Airways the detenu opted for the Green Channel meant for the passengers not having any dutiable and/or prohibited goods for customs clearance and proceeded towards the exit gate; that he declared that he did not have any gold with him, but on search 7 gold bars weighing 70 tolas valued approximately at Rs. 2,71,728/- deftly concealed between the inner soles of the left and right sports shoes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been in a trap. Counsel would also submit that the so-called representation dated 13-6-1989 was not a representation to the appropriate Government against the detention and could not be treated as such. 5. Taking up the first submission, we find that Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is settled law that the communication of the grounds which is required by the earlier part of the clause is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause. A communication in this context, must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attribute to him. Such a communication would be there when it is made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation being furnished. Thus in Lallubhai Jogibhai Patel v. Union of India & Ors. - (1981) 2 SCC 427, the detenu did not know English but the grounds of detention were drawn up in English and the detaining authority in affidavit stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu. Admittedly, no translation of the grounds of detention into Gujarati was given to the detenu. It was held that there was no sufficient compliance with the mandate of Article 22(5) of the Constitution which required that the grounds of detention must be communicated to the detenu. "Communicate" is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. This follows from the decisions in Harikisan v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h rendering of the representation is found at page 75 of the Writ Petition which is attested to have fully corresponded to its original in Polish language. It is signed by the detenu and is addressed to the Chairman, Central Advisory Board (COFEPOSA), High Court of Delhi, through the Superintendent, Central Jail, Dum Dum, Calcutta. It reads: "Ref: Govt. of India, Finance Department and Revenue Department Order No. F. No. 673/322/89-CUS-VIII dated 16-05-1989 Sub: Representation against my detention under COFEPOSA Respected Chairman, 1. I am a Polish national. 2. I do not know any other language except Polish language. 3. I cannot speak, write and read English language and do not know small English letters. 4. I know how to write my name in Block letters. 5. I have received all the documents concerning the above-mentioned case in English language and for the fact that I do not know that language the documents were so complicated for me to understand. 6. In view of the above facts, I kindly request your goodself to provide me with the order of detention together with the grounds of detention in my language (Polish language) so that I can effectively present my defence." 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statements putting appropriate English words and signing the corrections. While the detention order was passed on 16-5-1989 his representation was admittedly dated only 13-6-1989. In the meantime bail petitions were moved on his behalf before the Chief Judicial Magistrate and the High Court. There is nothing to show that he did not give instructions to his counsel. After all, the detenu is not required to write an essay or pass any language test. A working knowledge of English enabling him to understand the grounds would be enough for making a representation. He could very well send his representation in the language known by him. 11. In Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors., 1985 (3) SCR 697, Venilal D. Mehta, his daughter Miss Pragna Mehta and son Bharat Mehta were detained under the COFEPOSA Act by an order dated 19th June, 1984 and the detention order was challenged in this Court under Article 32 of the Constitution of India. They were alleged to have been in possession of 60 gold biscuits of foreign origin. After their arrest the father and his daughter were taken to the Central Excise and Customs Department, Cochin where statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30th June, 1984 the Hindi translation of the grounds of which he claimed ignorance. The gist of the annexures which were given in Malayalam language had been stated in the grounds. That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the. Court is not denuded of its powers to examine the truth. He goes to the extent that he signed the mercy petition not knowing the contents, not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a time when he was under arrest, his room had been searched, gold biscuits had been recovered from him. Court is not the place where one can sell all tales. The detaining authority came to the conclusion that he knew both Hindi and English. It had been stated so in the affidavit filed on behalf of the respondent. We are of the opinion that the detenu Venilal Mehta was merely feigning ignorance of English." After referring to the decisions in Hadibandhu Das v. District Magistrate, Cuttack & Anr. (supra), Nainmal Partap Mal Shah v. Union of India & Ors., (supra), and Ibrahim v. State of Gujarat and Ors. (supra) this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed and a request for release of the detenu, therefore, has to be deemed a representation; so also a request to supply copies of documents etc. Opportunity to make a representation comprehends a request for supply of translated copies. Therefore, the detenu's 'representation' asking for copies of documents must be held to have amounted to a representation and it was mandatory on the part of the appropriate Government to consider and act upon it at the earliest opportunity and failure to do so would be fatal to the detention order. There has been a catena of decisions of this Court that the representation of the detenu must be considered by the appropriate Government and Article 22(5) does not say which is the authority to whom representation shall be made or which authority shall consider it. But it is indisputable that the representation may be made by the detenu to the appropriate Government and it is the appropriate Government that has to consider the representation as was reiterated in John Martin v. State of West Bengal - AIR 1975 SC 775 = 1975 (3) SCR 211. 14. It is settled law that delay in disposing the representation when inordinate and unexplained the detention would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In B. Sundar Rao & Ors. v. State of Orissa - (1972) 3 SCC 11, where the detention was under the Orissa Preventive Detention Act, 1970 and Sections 7 & 11 thereof conferred the right on the detenu to make representation and have it considered by appropriate authority it was held that such consideration was independent of any action of Advisory Board as there was necessity of Government to form opinion and judgment before sending the case to the Advisory Board. 17. In Vimalchand Jawantraj Jain v. Shri Pradhan & Ors. - (1979) 4 SCC 401, it was held by this Court that under Article 22(5) independent of the reference to the Advisory Board, the detaining authority must consider the representation at the earliest and come to its own conclusion before confirming the detention order and consideration and rejection of the representation subsequent to report of the Advisory Board would not cure the defect. It was clearly held that it is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board had considered the representation and then made a report in favour of detention. Even if the Advisory Board had ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for adjudication, confiscation and punishment for smuggling and prevents possible repetition or recurrence. 19. Preventive detention of a foreign national who is not resident of the country involves an element of international law and human rights and the appropriate authorities ought not to be seen to have been oblivious of its international obligations in this regard. The universal declaration of human rights include the right to life, liberty and security of person, freedom from arbitrary arrest and detention; the right to fair trial by an independent and impartial tribunal; and the right to presume to be an innocent man until proved guilty. When an act of preventive detention involves a foreign national, though from the national point of view the municipal law alone counts in its application and interpretation, it is generally a recognised principle in national legal system that in the event of doubt the national rule is to be interpreted in accordance with the State's international obligations as was pointed out by Krishna Iyer, J. in Jolly George Verghese v. The Bank of Cochin - AIR 1980 SC 470. There is need for harmonisation whenever possible bearing in mind the spirit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs are perhaps possible when he is preventively detained. A preventive detention as was held Rex v. Halliday - 1917 AC-268 "is not punitive but precautionary measure". The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge is formulated; and the justification of such detention is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence. In this sense it is an anticipatory action. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. In case of punitive detention the person concerned is detained by way of punishment after being found guilty of wrong doing where he has the fullest opportunity to defend himself, while preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in any conduct injurious to the society. There may, therefore, be cases where while a citizen and resident of the country deserves preventive detention apart from criminal prosecution, in case of a foreign national not resident of the country ..... X X X X Extracts X X X X X X X X Extracts X X X X
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