TMI Blog2015 (5) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... art leaves no room for doubt that prior to the passing of the detention order all documents sought to be relied upon were received. Having carefully examined the time-chart, relevant portion of which has been reproduced above, would show that it is only after all the documents were received and examined the detention order was passed. Hence, the submission of counsel for the petitioner that the detention order is bad in law and is liable to be quashed, as the same is passed in the absence of the relevant documents, is also without any force. No other ground has been urged before this court. In view of the reasons aforestated, we do not find any reason to entertain the present petition and the same is accordingly dismissed, leaving the parties to bear their own costs. - W.P.(CRL) 510/2015 - - - Dated:- 21-5-2015 - HON BLE MR. JUSTICE G.S.SISTANI AND HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL For the Petitioner : Mr.J.K. Srivastava, Advocate For the Respondent : Mr.Sanjay Jain, Additional Solicitor General with Mr.Neeraj Jain and Ms.Shreya Sinha, Advocate ORDER G.S.SISTANI, J (ORAL) 1. Pleadings in this matter are complete. 2. Rule D.B. With t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. In support of his submission, counsel for the petitioner submits that petitioner is not fluent in English and has studied upto Madhyamik (equivalent to class 10th) in vernacular Bengali language, and merely because he has appended his signatures or made an endorsement in English would not mean that he was in a position to read and understand 96 pages provided to him in a language which he could not understand. 7. Counsel next submits that a representation was made by the wife of the petitioner on 1.12.2014 to the Central Government and similarly a representation of the same date was made by the petitioner to the Advisory Board. The representations could not be made expeditiously, as the petitioner and his wife were handicapped since no translations were provided to them. Additionally, it is contended that the statement of the petitioner was also recorded in Bengali, which would show that he was not conversant with the English language. The petitioner being a resident of a village in interior of the West Bengal, having been educated upto Madhyamik in vernacular Bengali medium school, and merely because he had taken English as one of the subjects, it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f detention must be communicated to the detenu. The Supreme Court also held that communicate‟ is a strong word and it would mean sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in a language which he understands. 10. The second ground raised by counsel for the petitioner is ground J‟ as detailed in the writ petition i.e. unexplained delay in deciding the representation made by the petitioner on 5.2.2015. It is contended by counsel for the petitioner that representation dated 05.02.2015 filed by the petitioner was not considered expeditiously and promptly and was decided only on 18.2.2015, i.e. after 13 days and there is unexplained delay in deciding the representation. 11. Elaborating his argument further, counsel for the petitioner contends that the reply to the counter affidavit shows that the representation was not treated with a sense of urgency and attention. It is also contended that the law requires that the detaining authority should be the first person to see the representation and decide whether there is any need to send it to some other office and should there be any need of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be a ground for the Central Government and the detaining authority for not deciding the representation which is a statutory right of the petitioner. Counsel has placed strong reliance on Shakil Ahmed Ansari Vs. UOI Ors. 1996 JCC 473, wherein it has been held that a detenu can submit a representation against the order of detention to the Advisory Board, the detaining authority and the appropriate government, and the authorities are bound to consider the same, and even if a representation is addressed to the Advisory Board, it has to be considered by the detaining authority and the appropriate Government, as they are, empowered to revoke the detention of the detenu. It is submitted that the Division Bench of the High court while deciding Shakil Ahmed (Supra) had relied upon the judgments of the Supreme Court reported in JT 1995 (3) SC 639, AIR 1991 SC 1090 and 1995 Crl.L.J. 3703. 15. Elaborating his argument further counsel for the petitioner submits that another Division Bench judgment of the Delhi High Court in the case of Asif Iqbal Vs. UOI reported at 1997 JCC 238, the same principle had been followed and the representation addressed to the Central Government with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is his native language, by the Superintendent of Customs, Tentulia Preventive Unit on 30.10.2014 and thereafter the petitioner had put his signatures, acknowledging its receipt. In support of his submission Mr.Jain, learned Additional Solicitor General has placed reliance on a judgment delivered by this court in the case Sumita Dey Bhattacharya Vs. UOI [WP(Crl.)No.2118/2014] and more particularly paragraph 14. 18. In reply to ground (J) raised by counsel for the petitioner, learned Additional Solicitor General submits that there was no delay in deciding the representation dated 5.2.2015. Relevant portion of the counter affidavit reads as under: J. That the contents of ground J are misconceived, wrong and denied. It is submitted that there has been no delay in consideration and final disposal of the dated 05.02.2015 (sic. representation dated 05.02.2015) at different stages and levels. Further, the time period effectively taken by the Detaining Authority in disposal of the representation after receipt of comments of the Sponsoring Authority was only about 7 working days as revealed by the following table: Date of Representation 05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on against the order of detention to the Central Government under Art. 22(5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forward the same forthwith. The Central Government duly considered that representation which in effect was nothing but a Representation for revocation of the order of detention under s. 14 of the Act. That being so, it was not obligatory on the part of the Central Government to consider a second representation for revocation under s. 14. We may profitably refer to Phillippa Anne Duke's case, supra, where in somewhat similar circumstances it was held that failure of the Central Government to consider a representation for revocation of an order of detention under s. 11(1)(b) of the COFEPOSA Act handed over to t he Prime Minister during her visit to England did not render the continued detention invalid. It was observed: Representations from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as a representation to the Government under s. 11(8)(b) of the COFEPOSA Act. 20. With regard to the additional grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read out and explain in Bengali which is my native language and I put my signature thereon. Sahidul Islam Mondal 22. Additionally, we may notice that an endorsement was made by the petitioner as received copy which was signed in English, date appended in English, which has been filed at page 108 of the paper book. We have also examined the certificate of the petitioner of Madhyamik Pariksha (secondary examination) and the mark-sheet which show that English was one of the subjects opted by the petitioner. In a judgment rendered by this court in the case of Sumita Dey Bhattacharya (Supra) [WP(Crl.)No.2118/2014], we had discussed the law on the subject, which reads as under: 14. Learned counsel for the respondent has relied upon Kubic Darusz v. Union of India And Ors., reported at (1990) 1 SCC 568, more particularly paras 10 to 13, which read as under: 10. In the instant case we find that when the detention order and the grounds of detention were served the detenu received them and acknowledged the receipt thereof, as it appears from the records, putting his signature in English. He did not complain that the grounds of detention were not understood by him. On the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to read and write either in English or Hindi or 'Malayalam and the grounds of detention may be given to him duly translated in Gujarati. In Court it was contended that the order and grounds should have been communicated to the detenu in the language or languages they understood and Venilal Mehta understood nothing except Gujarati. He did not understand English or Hindi or Malayalam. The Hindi translation was admittedly furnished beyond a period of 5 days and no exceptional circumstances were stated to exist. Following Harikisan v. State of Maharashtra AIR 1962 SC 911 and considering the definite case of Venilal Mehta, this Court observed that the facts revealed that the detenu Venilal Mehta was constantly in the company of his daughter as well as son and both of them knew English very well. The father signed a document in Gujarati which was written in English and which was his mercy petition in which he com- pletely accepted the guilt of the involvement in smuggling. That document contained a statement-- I myself am surprised to understand what prompted me to involve in such activity as dealing in Imported Gold. On those facts and circumstances this Court observed: (SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u understood the English language, had working knowledge of it and was reigning ignorance of it, and there was no violation of Article 22(5) of the Constitution on the ground of non-communication of the grounds of detention in a language understood by him. The first submission of the detenu has, therefore, to be rejected. 23. The Supreme Court has observed that what is required is the workable knowledge of English and not that a detenu is required to write an essay or pass an English test. Having regard to the fact that the endorsement was made and signed by the petitioner in English while receiving the copies, as reproduced in para 22 aforegoing; and the fact that the representation was also made in English; as also the school marksheet shows that petitioner had opted English as one of the subjects; we find that the submission made by counsel for the petitioner is without any merit. 24. The second ground urged before us is ground (J) i.e. the delay in deciding the representation dated 05.02.2015. Before deciding this ground, we may notice that in fact representation dated 05.02.2015 was the third representation made by the petitioner; the first representation was made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentations shall not be taken advantage of by the detenue. In the present case also, all the representations were not addressed to the concerned authorities concerned. 19. As regards delay in disposing of the representation, this Court, as early as 1981 observed in Ummu Saleema case (supra) that there cannot be any fixed time and the delay, if any, in disposal of the representation is to be considered vis-a-vis any prejudice that may be caused to the detenue. In Para 7 of the said judgment the following observations were made:- Another submission of the learned counsel was that there was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India and in Shanker Raju Shetty v. Union of India. We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C. Khambr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional ground has been raised on behalf of the detenu. The only ground raised in the representation is that the detenu was not conversant with English language and the translations of the detention order and supporting documents were not provided to him. This is a ground raised by the detenu himself in the representation dated 01.12.2014 and also by his wife in a representation of the same date. We find this submission made by counsel for the petitioner also to be without any force. Firstly the counter affidavit has given the precise movement of the representation made on behalf of the petitioner, which has been detailed in the counter affidavit and extracted in the paragraph aforegoing. We are also not inclined to accept this argument of counsel for the petitioner for the reason that this representation was the third representation and no new ground was urged in this representation and the only ground which was urged already stood rejected by the Central Government and the detaining authority. In the case of Smt.K.Aruna Kumar (Supra), it has been held that there is no right in favour of the detenu to get his successive representation based on the same ground rejected earlier to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation was addressed to the Advisory Board, that by itself cannot be a ground for the Central Government or the detaining authority for not deciding the representation. It is contended that a detenu is entitled to make a representation even after the opinion of the Central Advisory Board and even if the opinion has been expressed to sustain the detention, it would be open for the detaining authority to decide the representation in favour of the detenu. 29. In reply to this ground, a categorical assertion has been made by learned Additional Solicitor General at the Bar and on instructions from the officer present in court, and placed reliance on the reply to the addition grounds and stated that this representation was neither served upon the Central Government nor on the detaining authority and in the absence thereof, the Central Government and the detaining authority cannot be faulted for not deciding the representation. It is also submitted that no additional grounds were raised in the representation which was addressed to the Advisory Board in comparison to the grounds raised in the representation of the same date made by the wife of the detenu. It is contended that principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commissioner of Customs, Kolkata for his kind sanction. 20.05.2014 On getting the due approval from the Hon ble Chief Commissioner (also known as sponsoring authority) of Customs, Kolkata for the above proposal a letter addressed to the Joint Secretary to the Government of India, CEIB, COFEPOSA UNIT, New Delhi was sent for sanction of the detention order. 18.06.2014 The minutes of the Screening Committee held on 11.06.2014 were signed and the SA was advised to immediately provide the deficient documents arising out of investigations etc. 26.06.2014 Reminder sent from COFEPOSA Unit to Sponsoring Authority for documents. 27.06.2014 Part information received from Sponsoring Authority. 08.07.2014 Request for complete information / documents sent from COFEPOSA Unit to Sponsoring Authority 15.07.2014 Reminder sent to Sponsoring Authority 23.07.2014 Reminder sent to Sponsoring Authority 28.07.2014 ..... 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