Home Case Index All Cases Customs Customs + HC Customs - 2022 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 841 - HC - CustomsSeeking release from preventive detention - COFEPOSA - Smuggling - Baggage Rules - drones, goods, cigarettes and certain other items in commercial quantity by six passengers on different flights - Illegal detention of respondents - seeking a direction in the nature of habeas corpus for the production of her son - detention order was not served upon the petitioner’s son in a language that he understands - HELD THAT:- The petitioner as well as the respondents have premised their contentions essentially on Article 22(5), namely the constitutional mandate for communicating the grounds of detention to a detenu and affording him the opportunity of making a representation against a preventive detention order. While several judicial precedents have been cited by the petitioner on the law on communicating the grounds of detention, the legal position is best crystalized in various decisions. Reliance placed in the case of HARIKISAN VERSUS STATE OF MAHARASHTRA [1962 (1) TMI 58 - SUPREME COURT], the Hon’ble Supreme Court took the view that since the High Court had not returned a finding that the detenu knew enough English, the High Court had committed an error in holding that only because English was the official language of the State of Maharashtra, supplying the grounds of detention in English language was sufficient compliance of the mandate of Article 22(5). A detenu has a fundamental right under Article 22(5) that the grounds on which a detention order has been made against him, be communicated to him as soon as may be; and that he be afforded an opportunity of making a representation against the detention order at the earliest - Interpreting the scope and operation of this fundamental right, the Hon’ble Supreme Court has laid down that ‘communication’, within the meaning of Article 22(5), means imparting to the detenu sufficient knowledge of the grounds on which a detention order has been made; so that the detenu is in a position to effectively make a representation against the order. More specifically, the Hon'ble Supreme Court has said that oral explanation or oral translation of the grounds of detention would not amount to communicating the grounds to a detenu - Merely because a detenu is able to sign or write a few words in English or any other language, does not mean that the detenu is ‘conversant with the language’, since the detenu may yet not be able to effectively understand the contents of the grounds of detention and the relied-upon documents, to be able to make an effective representation against the detention order. Merely because Harmeet Singh signed several documents in English and was able to string a few words into sentences, evidently on the urging of the concerned officers, is no basis to impute to him sufficient working knowledge of the English language - to also best serve the legal interests of the detaining authority, it should be the preferred course of action in all cases, that on the mere asking of a detenu, a complete set of detention order along with the grounds of detention as also all relied-upon documents, should be furnished to a detenu in the language in which the detenu requests. It would be preferable that the detaining authority should take such request in writing from a detenu and must formally serve upon the detenu the translated papers as requested expeditiously, against acknowledgement, to obviate challenges such as the present one, which we find are frequently made. In the present case, detention order was not served upon the petitioner’s son, detenu Harmeet Singh, in a language that he understands. Accordingly, the impugned detention order falls foul of the constitutional mandate contained in Article 22(5) of the Constitution as interpreted by the Hon’ble Supreme Court - As a sequitur, detenu Harmeet Singh, son of the petitioner Ms. Jasvinder Kaur, is directed to be released from preventive detention forthwith, unless required in any other case. The present habeas corpus petition is allowed and disposed of.
|