TMI Blog1982 (10) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. The documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Art. 22(5) is clearly violated. Having regard to the above discussion it is clear to us that the continued detention of the petitioner would be illegal and we accordingly quash the same and direct him to be released forthwith. Appeal allowed. - Writ Petition (CRL) No. 1077 of 1982 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the detaining authority to supply the translations in Urdu of the ground, and documents relied upon was a clear violation of the constitutional mandate of Art. 22 (5) so as to vitiate the order of detention and hence, in our view, there exists no sufficient cause for the continued detention of said detenu. Following the above opinion of the Advisory Board, the respondent No. 1 by its order dated 1st of July, 1982 revoked the detention of the petitioner under s. 8 (f) of the COFEPOSA and directed him to be released forthwith, unless he was required to be retained in custody under the orders of any competent court of law. However, on the same day i. e. 1st of July, 1982, the respondent No. 1 issued the impugned order of detention against the petitioner under s. 3 (1) of the COFEPOSA and served it on him on 2nd July, 1982 whilst he was in judicial custody under Courts order in two cases, one under the Arms Act and the other under the Foreigners Act pending against him and after taking him in custody again under the impugned order detained him in Ahmedabad Central prison under the COFEPOSA. This detention was effected with a view to preventing him from smuggling goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound and relied upon by the detaining authority in reaching the requisite subjective satisfaction were not supplied to the detenu within the normal period of 5 days but the supply thereof was delayed upto 13 days without any exceptional circumstances obtaining in the case and without recording any reasons, as neither the existence of exceptional circumstances nor the fact whether the reasons had been recorded in writing was communicated to the detenu. Counsel urged that the petitioner was deprived of an opportunity to make effective representation to satisfy the Advisory Board that no exceptional circumstances existed or that the delay in supply of Urdu translations that were given to him was neither reasonable nor justified. Counsel further urged that the explanation trotted out now at the hearing, namely, that due to Ramzan month translators in Urdu were not available earlier is no justification whatever for the delay has occurred and hence the duty to communicate the grounds together with documents and statements in support thereof within prescribed time has been breached. In any case, Urdu translations of all the documents and statements referred to and relied upon in the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1 in his affidavit filed on 10th of September, 1982. Shri Shah has stated in his affidavit that time was taken as large number of documents were to be translated , while an office noting approved and signed by the Home Minister (copy whereof was produced at the time of hearing) indicates that on account of the month of Ramzan handful Urdu translators were available to do the work from 12 noon to 4.00 p. m. and, therefore, as a special case Urdu translations were decided to be furnished to the detenu within 15 days as prescribed by the COFEPOSA and accordingly Urdu translations of bulk of documents and statements were furnished within 13 days of the detention. Counsel further contended that neither Art. 22 (5) nor s. 3 (3) of the COFEPOSA casts an obligation upon the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur or about the fact whether the reasons have been recorded in writing or not and these are matters for the Court's satisfaction when any issue in that behalf is raised before it. As regard the non-supply of Urdu translations of some of the documents and statements referred to in the grounds it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentation against the detention order and that the first duty is to be performed as soon as may be , meaning thereby within a reasonable time with an understanding to do it within the shortest possible time the Court, however, pointed out that what could be regarded as 'reasonable time' or the 'shortest possible time' would depend upon the facts and circumstances of the case in which the question arises for decision, but the time predicated by the expression 'as soon as may be, was what was 'reasonably convenient' or 'reasonably requisite'. In s. 3(3) of the COFEPOSA the concept of reasonable time or the shortest possible time or reasonably requisite time predicated by the expression as soon as may be has been retained but as explained in A.K. Roy's(2) case it is only with a view to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than 5 days ordinarily and not later than 15 days if there are exceptional circumstances and that too with a safeguard of reasons being recorded in writing. In other words s. 3(3) provides for the outer li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of cl. (5) of Article 22 read with section 3, sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that, subject to clause (6) of Article 22, copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention. If this requirement of clause (5) of Article 22 read with section 3, sub-section (3) is not satisfied the continued detention of detenu would be illegal and void. It may be stated that in Shalini Soni's(1) case this Court has taken the view that Smt.. Icchu Devi's case (supra) is a further development and elaboration of what was said earlier in Khudi Ram's case (supra) and the Court confirmed the position that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of facts arrived at by the detaining authority and that copies of documents to which reference is made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or passingly referred to in the course of narration of facts in the grounds of detention and which are not relied upon by the detaining authority in making the detention order would not render the detention illegal. Nobody has suggested that documents and materials to which casual or passing reference is made in the grounds and which have not influenced the mind of the detaining authority in making the order of detention should also be supplied to the detenu. The principle clearly enunciated in Smt. Icchu Devi's case (supra) is that copies of all documents, statements and materials referred to or relied upon in the grounds of detention (meaning thereby which have influenced the mind of the detaining authority in arriving at its subjective satisfaction about the necessity to detain the detenu) must be communicated to the detenu within the time prescribed under s. 3(3) of the COFEPOSA and that without this the right to make representation cannot be meaningfully exercised. Apropos the true connotation of the expression 'communicate' the latest decision of this Court in Lallubhai Jogibhai Patel's (1) case is significant. In that case the detenu did not know English ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e noted. In Kamla Kanyalal Khushalani's (4)case and Sunil Dutt's(5) case this Court has taken the view that all the documents, statements and other materials referred to or relied upon either in the order of detention or in the grounds of detention must be served upon the detenu alongwith the grounds. The Court has held that where the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex-hypothesi in existence at the time of the issuance of the detention order and framing of the grounds, were not supplied to the detenu alongwith the grounds and consequently the detenu was prevented from making effective representation against his detention, the continued detention of the detenu would be illegal inasmuch as such non-supply of documents, statements and materials alongwith the grounds of detention amounted to a violation of the safeguard available to the detenu under Art. 22(5). Two propositions having a bearing on the points at issue in the case before us, clearly merge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st of July, 1982, that the same was served on the detenu on 2nd July, 1982; and immediately thereafter he was put under detention in Ahmedabad Central Prison; the grounds of detention drawn up in English and translated in Urdu together with copies of all documents and statements incorporated in the grounds in original language (English and Hindi) were served upon the detenu on 7th July, 1982 i. e. within 5 days of his detention. Obviously, serving copies of all the documents and statements in English and Hindi on him on 7th July, 1982 was of no use and it was only on 15th of July, 1982 that Urdu translations of the bulk of such documents and statements were supplied to him. In other words effectively the grounds of detention together with bulk of documents and statements incorporated in the grounds in the script or language understood by him were served or supplied on 15th July, 1982 which was beyond the normal period of five days. In any event supply of bulk of documents and statements incorporated in the grounds in the script or language understood by the detenu was delayed beyond the normal period of 5 days. The question is whether such delay was justified by existence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of grounds of detention as also the documents and statements incorporated therein by reference beyond the normal period of five days would be fatal. Looked at from this angle the aforesaid explanation given by the detaining authority cannot, in our view, be regarded as constituting exceptional circumstances justifying the delay in the supply of bulk of documents and statements to the detenu in the script or language he understood. In the first piece, on admitted facts in the case upon revocation of the earlier detention order on 1st July, 1982 there was no urgency to issue the impugned order of detention on the same day or serve it on the detenu on the following day, the detenu was in judicial custody then in other two cases, one under the Arms Act and the other under the Foreigners Act and no bail having been granted to him there was no fear of his absconding from Ahmedabad, there being no urgency the detaining authority could have kept all the material ready in Urdu and supplied the same to him immediately after detaining him second time. Secondly, the office noting does not give particulars of how many Urdu translators were put on the job except vaguely stating 'hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy itself about these matters when any issue in that behalf is raised before it. But the question is whether such a duty is cast on the detaining authority by necessary implication ? Does it or does it not flow from the right conferred upon the detenu to make representation against his detention ? In this behalf it cannot be disputed that under the scheme of the COFEPOSA against his detention the detenu has a right to make a representation to an authority which is superior to the detaining authority (e.g. to the State Government when the detaining authority happens to be an officer of that Government or to the Central Government where the detaining authority happens to be the State Government) as well as to the Advisory Board and such representation against his detention can be on merits of the grounds of detention as also for failure on the part of the detaining authority to observe strictly the requisite safeguards and on satisfying the superior authority or the Advisory Board on either count he is entitled to have his detention revoked or quashed. We have already indicated above that one of such safeguards is that unless exceptional circumstances really obtain in a case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital letters and some documents were in Hindi and Gujarati and the record (statements of Rekha, her sister Indi and one Jayantilal Soni, all co-conspirators of the detenu, recorded during the investigation) clearly shows that the petitioner knows English figures, understands English words written in capital letters and can also converse or talk in Hindi and Gujarati and as such the non- supply of Urdu translations of these documents cannot be said to have caused any prejudice to the petitioner in the matter of making a representation against his detention. In our view, the explanation is hardly satisfactory and cannot condone the non-supply of Urdu translations of these documents. Admittedly, the petitioner is a Pakistani national and Urdu seems to be his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfaction. In fact, the claim made befor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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