TMI Blog2015 (3) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 2013, he wasn't supplied with the English version of the same, must perish for the same reason. Once the petitioner accepts that he was furnished with the Bengali translation of the said letter, which he can read and understand, it should be held that there was adequate and proper compliance with the constitutional mandate. first detention order was passed after examining the relevant facts when the petitioner was not in detention. Bail granted by the trial Court had been cancelled, but the petitioner had not surrendered or arrested. Subsequently, the petitioner surrendered on 11th June, 2014 and till then the detention order had not been served. Thus, the Sponsoring Authority deemed it appropriate to intimate the said factual position to the Detaining Authority to ascertain whether they should execute the said order. The Detaining Authority after examining the relevant facts, passed an additional detention order in continuation of the earlier order dated 27th May, 2014, elucidating reasons why the detention order dated 27th May, 2014, should still be served and executed. We do not think that the letter/ order dated 13th June, 2014, which purports to provide addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. Learned counsel for the respondents prayed for some time, so as to examine the said factual assertions and if required, file an affidavit. Pursuant thereto, a copy of the objection petition filed by the petitioner before the Calcutta High Court, opposing the application for cancellation of bail was filed. Thereafter, the argument then raised was not pressed. 3. Subsequently, on 2nd February, 2015, learned counsel for the petitioner during the course of arguments, raised new contentions based upon facts, which had earlier not been pleaded or raised in the writ petition as well as the written submissions. This was objected to by the counsel for the respondents, who highlighted the vacillations and new allegations made by the petitioner. Allowing the prayer made by the petitioner, time was granted to file an additional affidavit along with photocopy of documents to show and urge factual and consequent legal submissions. The said affidavit has been filed and the respondents have also filed their response to the said affidavit. 4. The contentions of the petitioner can be divided into five separate submissions. The first submission is that in the present case there are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 640 and other cases. 5. As per the grounds stated in the detention order, the petitioner was detained under the provisions of the Customs Act, on 8th March, 2014 at about 1. 30 P.M., with 44.659 kilograms of smuggled gold, which was being transported in a Toyota Fortuner Car, bearing Registration No. WB 26 S 2600 in Beliaghat area of Taki Road, district of North 24- Parganas . The car was being driven by Moksed Mandal . The total value of the gold seized was of ₹ 1, 355.99 lacs . Several other facts stand recorded in the detention order, but these do not require elucidation and discussion in this writ petition. 6. The Chief Metropolitan Magistrate, Kolkata had granted bail to the petitioner on 12th March, 2014, on the ground that there was violation of the directions issued by the Supreme Court in D.K. Basu versus State of West Bengal, (1997) 1 SCC 416. Stringent conditions were however imposed, requiring the petitioner to join the investigation and report to the Customs Office from Monday to Friday. The authorities being aggrieved, preferred a petition for cancellation of bail before the Calcutta High Court. The petition filed was allowed and the bail granted to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given his propensity to evade law, there is every likelihood of his absconding after being enlarged on bail. As per the said Hon'ble Supreme Court order, the moment investigation is complete and challan is filed in the court, the petitioner shall be at liberty to move an application for regular bail which shall be considered by the trial court without being influenced by any observation made in the order by the High Court. However, it is difficult to complete the investigation and file prosecution against the accused within the given time. It is therefore felt that the detaining authority may allow serving of the Detention Order in this case. Now, in view of para E( ii) of the instructions issued under F.No . 671/6/2001-Cus VII dated 12.07.2001, the matter is being brought to your notice. Accordingly, decision regarding service of Detention Order to the said person may be informed to executing authority and this office. 9. Thereafter, Joint Secretary to the Government of India passed an order dated 13th June, 2014 with the following subject:- Subject:-Additional Grounds on which detention order F.No.673/14/2014-Cus. VIII, dated 27th May, 2014 has been issued against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that you have a very high propensity to indulge in smuggling of goods and its transportation concealment in future also, I am satisfied that you ought to be immobilised by way of putting you under Preventive Detention. 4. Accordingly I order that you be detained in terms of Detention Order bearing F.No . 673/14/2014-Cus. VIII dated 27.05.2014 passed by me, in exercise of the powers conferred by Section 3(1 )( i ) 3(1)(iii) of Conservation of Foreign Exchange Prevention of Smuggling Activities (COFEPOSA) Act, 1974. I further direct that Shri Barik Biswas , i.e , you, be kept in custody in the Presidency Correctional Home, Alipore , Kolkata, consequent to your detention. 10. It is clear to us that the two detention orders, i.e., orders dated 27th May, 2014, and 13th June, 2014, have to be read in seriatim and together and not as two distinct and separate orders. The reason why order dated 13th June, 2014, was passed is apparent and clear from the last paragraph of the letter dated 12th June, 2014 which makes reference to paragraph E(ii) of the instructions issued under File No. F.671/6/2001-Cus (vii) dated 12th July, 2001. The said circular/instruction has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n can stand on its own. It is not by itself a separate and independent detention order. It is necessarily an adjunct and a corollary to the earlier order dated 27th May, 2014. Appropriate in this regard would be reference to the following observations made by the Constitution Bench of the Supreme Court in Attorney General for India and Others versus Amritlal Prajivandas and Others, (1994) 5 SCC 54: 48. Now, it is beyond dispute that an order of detention can be based upon one single ground. Several decisions of this Court have held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. In Debu Mahato v. State of W.B. [(1974) 4 SCC 135 : 1974 SCC (Cri) 274] it was observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case one act may suffice. That was a case of wagon-breaking and having regard to the nature of the Act, it was held that one act is sufficient. The same principle was reiterated in Anil Dey v. State of W.B. [(1974) 4 SCC 514 : 1974 SCC (Cri) 550] It was a case of theft of railway signal material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow, take a case, where three orders of detention are made against the same person under COFEPOSA. Each of the orders is based upon only one ground which is supplied to the detenu . It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz. , it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word accordingly - apart from the fact that it is joined to the first part by the word and . In such a situation, we are unable to see how can the section be characterised as inconsistent with Article 22(5). H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds, the second right is violated. According to the learned counsel, Article 22(5), as interpretated by this Court over the last more than four decades, means this: An order of preventive detention is based upon the subjective satisfaction of the authority and where such satisfaction has been arrived at on grounds some of which are relevant and definite grounds and some irrelevant, vague and non-existent, it is not possible or permissible for the court to predicate which grounds have influenced the formation of his satisfaction - which means that the order of detention must fall to the ground; if this is what Article 22(5) means and says, it is not open to Parliament to make a law saying that where the grounds upon which the requisite satisfaction has been formed are partly good and partly bad, yet the order must be held to be good with reference to and on the basis of good grounds, eschewing the bad grounds. Such a law, it is submitted, would be in direct conflict with Article 22(5). Let us examine this submission rather closely. 13. The first contention, therefore, fails and ought to be rejected. 14. The second contention would fail for the reasons stated while deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu . If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu. 16. Reliance is placed upon the observations made by the Supreme Court under the fourth principle. Before we quote from the decision in the case of K.M. Abdulla Kunhi (supra), it would be appropriate to refer to the factual matrix in the case of Jayanarayan Sukul (supra). The detention order in the said case was executed on 7th June, 1969. The detenu had made a representation on 26th June, 1969 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. This has been emphasised and re- emphasised by a series of decisions of this Court. ( See :Jayanarayan Sukul v. State of W.M. [(1970) 1 SCC 219]; Frances Coralie Mullin v.W.C . Khambra [(1980) 2 SCC 275: 1980 SCC (Cri) 419]; Rama Dhondu Borade v.V.K . Saraf , Commissioner of Police [(1989) 3 SCC 173: 1989 SCC (Cri) 520] and Aslam Ahmed Zahire Ahmed Shaik v. Union of India [(1989) 3 SCC 277: 1989 SCC (Cri) 554] .) 16. We agree with the observations in Francis Coralie Mullin case [(1980) 2 SCC 275 : 1980 SCC (Cri) 419]. The time imperative for consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 to consider the representation before confirming the order of detention. If it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. To reach this conclusion, the court has relied upon two earlier judgments of this Court: ( i ) Khudiram Das v. State of W.B. [(1975) 2 SCC 81 : 1975 SCC (Cri) 435] and (ii) Khairul Haque v. State of W.B. [ W.P. No. 246 of 1969, decided on September 10, 1969 (Unreported)] 17. Reverting to the facts of the present case and applying the ratio decidendi in K.M. Abdulla Kunhi (supra), we find that the representation in the present case dated 8th July, 2014 was received only on 11th July, 2014. As comments were required from the concerned departments, the representation was forwarded to them. Comments were received on 17th July, 2014. As per Section 8 (b) of COFEPOSA Act, the detention file had to be forwarded to the Advisory Board within a period of five weeks from the date of service of the order of detention. The file was accordingly forwarded to the Advisory Board on 18th July, 2014 as 19th and 20th July were holidays. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was bilingual i.e. English and Bengali and it is stated that certain parts of the form relating to verification etc. are not bilingual and are only in English. Our attention is also drawn to another pre-paid mobile application form which is in English, of which full and complete Bengali translation was not submitted, but the translation furnished/supplied is of respective columns which were written or filled up. Translation of the blank columns was not furnished. Our attention is also drawn to the Arms Licence Form no. III and it is submitted that the said form though bilingual had a noting in English to the effect that on 26th September, 2014, one 32 bore pistol was supplied. Similarly, the Bengali translation of the inventory of the goods, recovered and seized under Section 110 of the Customs Act, was provided but without the Bengali translation of the handwritten note to the effect that one cloth wrapped sealed steel box sealed with DRI seal No. 1 vide a particular file had been received. Similar allegations were made with regard to letter dated 11th February, 2014 of which Bengali translation was made and furnished but the Bengali translation of the noting by the Inspecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d observed that non- supply of certain translated documents had not affected the detenue's cherished and constitutionally conferred right of making an effective representation under Article 22 (5) of the Constitution. The detenu had studied upto class V and claimed that he did not know English language and knew only Tamil language. This was disbelieved by the Supreme Court for the reason that the petitioner had written ₹ 30 ,000 /- in English. Further the assertion that the Tamil translation of the front portion of the declaration form had not been supplied was considered by the Supreme Court as inconsequential and irrelevant. The said front portion contained certain basic details like name, flight number, number of packages etc. The said details were given by the detenu in his application form. The contention was accordingly rejected observing as under: 3. The first ground pressed by the learned counsel is about the non-supply of documents in the language known to the petitioner which, it is claimed, has adversely affected the detenu's valuable right of making effective representation under Article 22(5) of the Constitution. The detenu claims to have studied up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same reason. Once the petitioner accepts that he was furnished with the Bengali translation of the said letter, which he can read and understand, it should be held that there was adequate and proper compliance with the constitutional mandate. The last contention on the said aspect related to two pages enclosed on pages 25 and 26 of the additional affidavit dated 9th February, 2015 filed on 10th February, 2015. The first page is the opening sheet of CRM No. 4830/2014 and is the cause title. It is not signed by any person. This is not a relied upon document. It will be incorrect and wrong to hold that the document relied upon by and supplied to the petitioner is incomplete. For similar reasons, the document at page 26 which is the back side of the certified copy furnished by the High Court of Calcutta and contains the dates on which the copy was applied for and delivered etc. has to be rejected. Clerical and numerical mistakes in Bengali translation would be also immaterial. Respondents have stated that all copies of documents supplied were photocopies of originals as received. The originals available with them cannot be improved. Even otherwise, the documents were legible. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
