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2022 (12) TMI 1069 - HC - CustomsDetention 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.
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