TMI Blog1990 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... orce in the second submission and hold that continued detention of the detenu has been rendered illegal by non-consideration of his representation by the appropriate Government according to law resulting in violation of Article 22(5) of the Constitution; and he is to be set at liberty forthwith in this case. - 359 of 1989 - - - Dated:- 18-1-1990 - B.C. Ray and K.N. Saikia, JJ. [Judgment per : K.N. Saikia, J.] - Mr. Kubic Dariusz, a Polish national, holding a Polish passport arriving Calcutta by air from Singapore via Bangkok was arrested on 29-4-1989 under Section 104 of the Customs Act, by the officers of the Customs Department attached to Calcutta Airport, on the ground that he was carrying in his possession foreign gold weighing about 70 tolas. On 30-4-1989, he was produced before the Chief Judicial Magistrate, Barasat who remanded him to jail custody till 15th May, 1989. He was interrogated by Intelligence officer when he made, corrected and signed his statements in English. His application for bail was rejected by the Chief Judicial Magistrate. While still in custody, he was served with the impugned detention order dated 16-5-1989 passed under Section 3(1) of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplied to at all by the detaining authority wherefore the detention order was liable to be quashed as violative of Article 22(5) of the Constitution of India. 4. Mr. V.C. Mahajan, the learned Counsel for the respondents emphatically refutes the first ground submitting that the detenu was conversant with the English language as would appear from the answers to the questions put to him in course of interrogation by the Intelligence authorities and this was clearly stated in the grounds of detention, and consequently, there arose no question of his being furnished with the grounds of detention in Polish and not in English language. Refuting the second submission Mr. Mahajan submits that the so-called representation dated 13-6-1989 addressed to the Chairman, Central Advisory Board, COFEPOSA through the Superintendent, Central Jail, Dum Dum, Calcutta was duly sent to and received by the Chairman and the detenu appeared before the Advisory Board which, after bearing the detenu, found sufficient cause for his detention and there was, therefore, no question of the representation being separately dealt with by the Central Government. Besides, Mr. Mahajan submits, had the detaining authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use he may have signed some documents, it could not be presumed, in absence of cogent material, that he had working knowledge of English and under those circumstances there had been clear violation of the constitutional provisions of Article 22(5) so as to vitiate the order of detention. Thus what was considered necessary was a working knowledge of English or full explanation or translation. In Surjeet Singh v. Union of India - (1981) 2 SCC 359 = AIR 1981 SC 1153, the petitioner, being served the detention order and the grounds in English, contended that English was not a language which he understood and that this factor rendered it necessary for the grounds of detention to be served on him in Hindi which was his mother tongue and that the same having not been done, there was in law no communication of such grounds to him; and it was held that under those facts and circumstances it had not been shown that the petitioner had the opportunity which the law contemplated in his favour of making an effective representation against his detention, which was, therefore, illegal and liable to be set aside. 6. Where it is stated that the detaining authority explained the grounds of detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-supply of Urdu translation of the documents could not be said to have caused prejudice to the petitioner in the matter of making representation against his detention. This Court held that the Explanation was hardly satisfactory and could not condone the non-supply of Urdu translation of those documents. In that case with the assistance of counsel of either side the Court had gone through many of those documents and statements and for the Court it was not possible to say that most of them were statements of accused containing figures in English with English words written in capital letters. A large number of documents were in Hindi and Gujarati and were material documents which had obviously influenced the mind of the detaining authority in arriving at the subjective satisfaction and those were all in a script or language not understood by the detenu and, therefore, it was held that the non-supply of Urdu translation of those documents had clearly prejudiced the petitioner's right against his detention and hence the safeguards contained in Article 22(5) was clearly violated. 8. In the instant case the basis of the statement that the detenu did not know English is his represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. It would, of course, always be safer course in such cases to furnish translations in the detenu's own language. We are of the view that it would be open for the Court to consider the facts and the circumstances of a case to reasonably ascertain whether the detenu is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished. 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 other hand in the very grounds of detention it was stated that in course of interrogation he answered the questions in English including the questions as to how he happened to learn English. The gist of his answers in this regard was also given in the grounds of detention. We have perused the statements and find that those contained number of informations peculiar to the detenu himself which could not have been communicated by him to the interrogato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of 5 days and no exceptional circumstances were stated to exist. Following Harikisan v. State of Maharashtra (supra) 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 completely 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 : "There is no rule of law that commonsense should be put in cold storage while considering Constitutional provisions for safeguards against misuse of powers by authorities though these Constitutional provisions should be strictly construed. Bearing in mind this salutary principle and having regard to the conduct of the detenu Venilal Mehta especially in the mercy petition and other communications, the version of the detenu Venilal in feigning lack of any knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of detention together with the grounds of detention in his language (Polish language) so that he could effectively present his defence. He called it a "representation" against his detention under COFEPOSA Act. Admittedly, this representation was not disposed of by the appropriate Government and, indeed, has not been disposed of or acted upon till today. Mr. Mahajan submits that it having been addressed to the Chairman, Central Advisory Board it need not have been dealt with by the Central Government and it could not be regarded as representation at all and the Government smarted out of the trap by not admitting that the detenu did not know English. We are not inclined to accept this submission. Admittedly the representation was sent through the Superintendent, Central Jail, Dum Dum, Calcutta. There was no scope to hold that what has been stated to be 'representation' was not representation at all inasmuch as it only requested for translated copies of the grounds of detention and the annexed documents in Polish language. Supply of translated copies would have surely not affected the detention order ipso facto. In Smt. Shalini Soni v. Union of India - AIR 1981 SC 431 = 1981 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked by the Government. The continued detention of the detenu was, therefore, held illegal and the detenu was set free. In the instant case though the representation was addressed to the Chairman, Central Advisory Board the same was forwarded by the Jail authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advisory Board and the same having not been done Article 22 (5) has to be held to have been violated. 16. In Kirit Kumar Chaman Lal Kundaliya v. Union of India Ors. - (1981) 2 SCC 426, a case under the COFEPOSA Act, where the order of detention was made by the Home Minister and the representation made by the detenu had been rejected not by the Home Minister but by the Secretary, this Court held that the representation had been rejected by an authority which had no jurisdiction at all to consider or pass any order on the representation of the detenu and that, therefore, rendered a continued detention of the petitioner void, following Santosh Anand's case (1981) 2 SCC 420, where it was held that the representation was not rejected by the detaining authority and as such the constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w to preventing the detenu from repeating smuggling activities. That the detenu in the particular act indulged in smuggling could not of course be denied. It is stated in the counter that the detention of persons under the COFEPOSA Act serves two purposes : (1) to prevent the person concerned from engaging himself in an activity prejudicial to the conservation of foreign exchange and also preventing him from smuggling activities and thereby to render him immobile by the detaining authority so that during that period the society is protected from such prejudicial activities on the part of the detenu; and (2) to break the links between the persons so engaged and the source of such activity and from his associates engaged in that activity or to break the continuity of such prejudicial activities so that it would become difficult, if not impossible, for him to resume the activities. There is undoubtedly scope for interpreting that the above two purposes envisage continuous residence of the person engaged in smuggling and as such may be more readily applicable to a resident of the country. But such habitual smuggling activity may not have similarly been envisaged in respect of a foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to bring him to court or for executing the sentence. In concluding such convention the States base themselves on principles of humanitarianism in their efforts to contribute to the more effective achievement of the objectives of the correction and re-education of violators of the law. Where such conventions exist, the citizens of a State who were convicted to deprivation of freedom in another signatory State are in accordance with mutual agreement of the States, transferred to the country of which they are citizens to serve their sentences. The transfer of the convicted person may take place only after the verdict has entered into legal force and may be carried out on the initiative of either of the interested States. The punishment decided upon with regard to a convicted person is served on the basis of the verdict of the State in which he was convicted. On the strength of that verdict the competent court of the State of which the person is a citizen adopts a decision concerning its implementation and determines, in accordance with the law of its own State, the same period of deprivation of freedom as was assigned under the verdict. While such ameliorative practices may be ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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