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TMI Blog1982 (10) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner and one Hasmukh Prabhudas Sharma contraband comprising 700 pieces of gold with foreign markings weighing 7000 tolas, radios, camera, Video cassette recorder, colour T.V. synthetic fabrics, crockery, etc. of considerable value and Indian currency of Rs. 72,766 were recovered; the said gold and other articles were seized under the reasonable belief that the same were smuggled goods liable to confiscation under the Customs Act, 1962. This seizure was followed by recording of confessional statements of the petitioner and his co-conspirators. During the follow up action certain other premises were searched and further contraband was seized. By an order dated 19th April, 1982 issued by the Respondent No. 1 under s. 3 (1) of the COFEPOSA, the petitioner was detained in Ahmedabad Central Prison with a view to preventing him from transporting smuggled goods and keeping smuggled goods. Grounds of detention dated 23rd April, 1982 alongwith copies of statements and documents relied upon by the detaining authority were served on the petitioner. The petitioner made a representation against the said order of detention, which was considered by the Advisory Board, who opined thus: "...althou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to challenge the impugned order, he pressed into service only one pertaining to the breach of the constitutional safeguards contained in Art. 22 (5), which according to him, was sufficient to quash the impugned order. According to counsel in the matter of supply of Urdu translations of documents and statements referred to and relied upon in the grounds by the detaining authority for the purpose of arriving at the requisite subjective satisfaction, the detaining authority (respondent No. 1 has committed breach of Art. 22 (5) read with section 3 (3) of the COFEPOSA resulting in non-observance of the constitutional safeguards conferred on the detenu and therefore, the impugned order was liable to be set aside. He pointed out that the grounds together with all the documents and statements incorporated in the grounds by reference are required to be 'communicated' to the detenu, that is to say, are required to be brought home to him in the language he understands, ordinarily within 5 days of his detention and only in exceptional circumstances and for reasons to be recorded in writing within 15 days from the date of his detention under s. 3 (3) of the COFEPOSA, in other words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his has happened notwithstanding the revocation of the earlier order precisely for failure to supply Urdu translations. It is in this manner that the constitutional safeguards conferred on the petitioner under Art. 22 (5) read with s. 3 (3) of the COFEPOSA have been denied to him and, therefore, the continued detention of the petitioner is illegal. On the other hand, counsel for the respondents have contended that no breach of Art. 22 (5) read with s. 3 (3) of the COFEPOSA has been committed as alleged. Counsel for the respondents pointed out that after the earlier detention order was revoked by the detaining authority under s. 8 (f) of the COFEPOSA, the petitioner was actually detained on 2nd July 1982 under the impugned order dt. Ist July, 1982 and within 5 days of his detention the grounds in English language as well as in Urdu together with copies of all documents and statements referred to in the grounds in their regional language were served on the petitioner and what is more translations of the bulk of the documents and statements so referred in the grounds were supplied to him on 15th July, 1982 i. e. within 13 days of his detention, and, according to counsel, this delay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; "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." Section 3(3) of the COFEPOSA provides as under : "For the purposes of clause (5) of Art. 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention." The real import of cl. (5) of Art. 22 including the true meaning of the expression "as soon as may be" occurring therein was explained by this Court in Abdul Jabar Butt v. State of Jammu & Kashmir(1) After noting that s. 8(1) of the Jammu & Kashmir Preventive Detention Act was nothing but a reproduction in substance of the provisions of cl. (5) of Art. 22 of the Constitution, this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detaining authority and the corresponding rights accruing to the detenu under Art. 22(5). The Court has ruled that in that context the expression 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of s. 3 nor is its connotation restricted to a bare statement of conclusion of fact but "nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu" and 'that is the plain requirement of the first safeguard in Art. 22(5)". Again, what would be comprised in "all the basic facts and materials" has been elaborated by this Court in Smt. Icchu Devi's (2) case where this Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessary for the detaining authority to supply copies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have copies of statements and document referred to in the grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition; the detaining authority cannot decline to furnish the copies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation." In fact, the real point decided was that once a demand was made by the detenu for copies of statements and documents relied upon in the grounds of detention for making an effective representation the detaining authority was bound to supply the same with reasonable expedition and could not deny the same on the ground that sufficient details had been furnished in the grounds of detention. The earlier observation cannot be regarded as a ratio of the case. In the second case this Court made a distinction between 'basic facts' and 'subsidiary facts' o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then that purpose is not served, and the constitutional mandate in Art. 22(5) is infringed." In taking this view the Court relied upon its three earlier decisions, namely, Harikishan's (1) case, Hadibandhu Das's (2) case and Smt. Raziya Umar Bakshi's (3) case. In Hadibandhu's case (supra) this Court specifically held that mere oral explanation of the detention order which ran into 14 typed pages, without supplying the detenu a translation in a script or language which he understood, amounted to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. It would thus follow that if the grounds together with copies of all documents, statements and other materials incorporated in the grounds by reference on which the detaining authority has relied are required to be communicated to the detenu under Art. 22(5) read with s. 3(3) of COFEPOSA within the prescribed time then not merely the grounds of detention but also the copies of all incorporated documents, statements and other materials must be supplied to the detenu in a script or language which he understands and failure to do so would amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the grounds and relied upon by the detaining authority was delayed beyond the normal period of 5 days without any exceptional circumstances obtaining in the matter, (ii) the alleged exceptional circumstances purporting to justify the delay and the fact that the reasons had been recorded in writing were not communicated to the detenu which has prevented him from making effective representation against his continued detention and (iii) Urdu translations of quite a few documents and statements incorporated in the grounds and relied upon by the detaining authority have not been supplied to him at all. As regards the first two aspects counsel relied upon two decisions of the Patna High Court, namely, Bishwa Mohan Kumar Sinha v. State of Bihar and Ors.(1) and Bishwanath Prasad Keshari v. State of Bihar & Ors.(2) where the Patna High Court has taken the view that not merely should the exceptional circumstances exist justifying the delayed supply of the grounds of detention but these should be communicated to the detenu to enable him to make an effective representation. Counsel urged that because of the aforesaid failure the continued detention of the petitioner must be held to be il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances it is proposed as under: (1) ... ... ... ... ... ... (2) ... ... ... ... ... ... (3) The Urdu translations of documents and other materials referred to at (2) above may be furnished to the detenu as soon as they are prepared by a batch of Urdu translators engaged for the purpose but not later than 15 days as prescribed in the Act, as a special case on account of the utmost difficulties pointed out above " Below this noting the Home Minister has made his endorsement approving the proposal under the date 2-7-1982. In other words, according to the respondents there were a large number of documents requiring translation and on account of the Holy month of Ramzan Urdu translators were not available and those handful translators who were available and were put on the job were prepared to work only from 12 noon to 4 p. m. because of Ramzan fasts they observed. Preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and therefore in preventive detention jurisprudence whatev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances it is impossible to hold that exceptional circumstances obtained in the case justifying the delay and as such the same constitutes a breach of the constitutional as well as the legislative mandate. On the second aspect the contention of counsel for the petitioner has been that the detaining authority while supplying the Urdu translations of the bulk documents and statements beyond the normal period of 5 days ought to have given indication to the detenu that the delay was caused due to exceptional circumstances and what the exceptional circumstances were, as also of the fact that reasons for the delay had been recorded in writing but this was not done and this failure prevented the detenu from making effective representation against his detention. Counsel for the respondents, however, contended that neither Art. 22(5) nor s. 3(3) of the COFEPOSA casts any obligation or duty on the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur nor about the fact whether reasons have been recorded in writing or not and, according to counsel, these are matters for the Court's satisfaction when any issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his detention. In the instant case, for instance, if the alleged exceptional circumstances were communicated to the detenu at the time of the delayed supply of the concerned documents and statements in Urdu language he could have satisfied the superior authority or the Advisory Board that the exceptional circumstances did not really obtain in the case and the delay had vitiated his detention. In other words, what he has done before the Court now, he could have done before the superior authorities or the Advisory Board. For these reasons we approve of the view ultimately taken by the Patna High Court in the two decisions cited above, particularly the decision in Bishwa Mohan Kumar Sinha's case (supra) where both the aspects have been dealt with. In our view, therefore, the impugned failure in this case constitutes another breach of the safeguard contained in Art. 22(5) read with s. 3(3) of the COFEPOSA and vitiates the continued detention of the petitioner. Lastly, Urdu translations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly not supplied to the detenu at all and the only explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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