Shiv Inarayan vs Union Of India And Ors.
1987 Latest Caselaw 408 Del

JUDGMENT

(1) The petitioner was arrested and detained on 8th April, 1987 pursnt to the order of detention dated 24th March, 1987 passed by Shri Tarun Roy, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) with a view to prevent him from smuggling goods.

(2) The circumstances leading to his arrest in brief are that on 4th September, 1986, at about 11 P.M. one Kamaljit Singh Dhawan, holder of an Indian passport arrived at Sahar International Airport, Bombay from Hong Kong by Cathe Pacific Airways. He got himself cleared through Customs from the red channel after paying custom duty on the goods declared by him. While he was proceedings towards exit gate, the Customs Officers, in the presence of panchas enquired from him if he had any gold, wrist watches or diamonds either in his baggage or on his person to which he replied in the negative. The metal-detector gave sound near the lower part of his abdomen indicating the presence of some metalic substance inside his body. After initial denial, he admitted that he had concealed six gold bars in his rectum.

(3) The scrutiny of his passport revealed that he departed from Hong Kong on 2-9-86 and arrived on 4-9-86. This aroused suspicion in the mind of the Superintendent Customs who instructed his staff to look for companions of the petitioner. The search resulted in the apprehension of four more persons, namely, Manmohan Singh Malhotra, Rawal Singh, Kanhaiya Singh Khanna and Anand Singh. On interrogation of the persons all of them admitted the concealment of gold in their rectums. They ultimately ejected total quantity of 39 gold bars of 10 tolas each and 2 gold bars of 100 grams, collectively weighing 4747.4 grams valued at Rs. 7,07,362.60 at the international market value. The share of the petitioner is 932.8 grams. The gold was seized on the reasonable belief that the same was smuggled into India and hence liable to confiscation under the provisions of the Customs Act, 1962. Subsequently their statements u/s 108 of the Customs Act were recorded. During the examination of the remaining baggage of the said passengers, Shri Manmohan Singh Malhotra gave a slip to the customs and escaped. Others were arrested u/s 104 of the Customs Act on 5-9-1986.

(4) The residential premises of the present petitioner were searched but nothing incriminating was found. However, in his statement, he admitted the recovery and seizure of gold bars which were concealed in his rectum. After completing the investigation, the papers were placed before the detaining authority who concluded thus :- "FROM the foregoing facts and circumstances, it is evident that you have smuggled goods into India and unless prevented, you will continue to do so in future. Although both the prosecution and the departmental adjudication proceedings under the Customs Act, 1962 have been initiated against you, I am satisfied that it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing you from smuggling goods in future."

The order of detention is dated 24th March, 1987.

(5) The challenge to the impugned order of detention is twofold. Firstly, that the petitioner is an illiterate person and knows only Hindi. He cannot read or write English. He was given the order of detention Along with the grounds and documents in English with the result that he could not make any effective representation. Secondly, in his representation dated 24-4-1987 he asked for the supply of additional documents which had been taken into possession at the time of his arrest and have been referred to and relied upon by the detaining authority. Even these documents were not supplied till his order of detention was confirmed by the Central Government. This is also a violation of his fundamental right to make a purposeful and effective representation against his order of detention.

(6) The submission of the counsel for the respondent is that most of the documents forming part of the order of detention were supplied to the detenu in Hindi whereas the additional documents asked for were neither referred to nor relied upon by the detaining authority and the question of their supply does not arise. For the non-supply of these documents, no prejudice has been caused to the petitioner and the impugned order cannot be quashed on that ground alone.

(7) In order to settle the rival controversies, one must first have a bird's eye view of the important events and dates which have a material bearing on the subject-matter of the case. The date of incident is 11 P.M. on 4-9-86 when the petitioner along-with other co-accused was apprehended at Sahar International Airport, Bombay. The order of detention is dated 24-3-1987. In compliance with the said order, the petitioner was arrested and detained on 8th April, 1987. On that very day, he was also served with the order or detention, the grounds of detention and the documents numbering 43 forming part of the grounds of detention. On 24-4-87, the petitioner sent his representation to the detaining authority asking for the supply of copies of 16 documents in Hindi out of 43, and 10 additional documents which are in the power and possesison of the detaining authority. This very representation was rejected by the order of Shri S. K. Chaudhary, Under Secretary to the Government of India, on 25-5-87. In this letter, the petitioner was informed that all the relied upon documents have been supplied to him in the language known to him. However, regarding some additional documents asked for, the Collector of Customs (Preventive) Bombay is being directed to provide the same to him. By this time, the Advisory Board held two sittings on 14-5-1987 and 19-5-87 wherein the petitioner again raised the grievance of the non-supply of the documents in the language known to him required for making an effective representation. Before the documents asked for were handed over to the petitioner, his detention was confirmed on 24-6-1987. The information of which was conveyed to the petitioner on 25-6-1987. The counter of the respondent discloses the facts that the Collector of Cus-toms (P) Bombay vide telex dated 14th August. 1987 has intimated to the detaining authority that the additional documents asked for by the petitioner were sent to the Superintendent Jail, Tihar on 1-7-1987.

(8) From these facts, the position which emerges is that admittedly some of the documents out of the list of docaments annexed with the grounds of detention were not supplied to the petitioner in the language known to him. The additional documents asked for though were supplied to the detenu but much after the date of the confirmation of the order of his detention.

(9) The effect of non-supply of the documents, in the language of the petitioner has far-reaching consequences. The supply of material documents asked for by the petitioner in his repre-sentation, after the confirmation has caused great prejudice to the detenu. It is not in strict compliance with the provisions of Cofeposa Act and the provisions of Article 22(5) the Constitution of India. The Court has not to go into the question as to whether any prejudice has been caused or not. The detaining authority has no option but to provide material to the detenu in the language which is understood by him and to supply the documents asked for, to enable him to make an effective representation against his detention. This has to be as only the detenu knows as to which are the documents that are material and not for the detaining authority to decide that they are irrelevent. This controversy has now been set at rest in the latest Judgment of the Supreme Court in the case of Mrs. Tsering Dolkar vs. Administrator, Union Territory of Delhi and ors. . The Court had the occasion to express their opinion on the non-supply of the documents in the language which is understood by the detenu. It was a case where the copies of the orders of detention, grounds of detention and other documents were supplied to the petitioner in English and in Tibetan language, whereas the petitioner/dctenu had asked for the copies of the documents in Ladagi language. The department tried to take shelter of the fact that the petiti-oner's wife knew both English and Tibetan language and on that score the detenu could make an effective representation. This argument was brushed aside by the Court in holding :- "THERE could be no two opinion that the requirement of law within the provisions of Article 22 of the Constitution is that the detenu has to be informed about the ground of detention in the language which he understands. The fact that the detenu's wife knew the language in which the grounds were framed does not satisfy the legal requirement." ".....We must make it clear that the law as laid down by this court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order."

In the case in hand as observed earlier, till today the Department has not supplied the copies of some of the relevant documents in the language which is commonly understood by the detenu. He has thus been denied a fair and adequate opportunity of making a representation against his detention.

(10) On the second aspect also, the petitioner is on a much firmer footing. The Supreme Court in a case reported as Mohd. Hussain vs. Secretary, Government of Maharashtra, 1982 Crl. L. J. 1848 (1A) has summarised the law on the point of supply of the documents. It says :-

"(A) The copies of all the documents which are relied upon in or which from the basis of the grounds of detention must be supplied to the detenu along with the grounds of detention;

(B) The documents which are not relied upon or do not form the basis of the detention order but which are merly referred to casually or incidentally as and by way of narration of facts in the grounds of detention need not be supplied to the detenu.

(C) However, even such documents, if the detenu requests for the same, have to be supplied to him for whether they are relevant to his defense or not is for the detenu to decide and not for the detaining authority to judge."

On the basis of the above observations, this Court in the case Crl. Writ No. 126/85 re : Hazi sayeed Mosum vs. Union of India, decided on 9th August, 1985 (2) quashed the order of detention as the documents asked for were not supplied to the detenu till after his detention was confirmed by the Central Government.

(11) Once the respondent on consideration of the representation comes to the conclusion that the documents asked for by the petitioner are relevant and should be supplied to him, inasmuch as the customs authorities were directed to send the copies of those documents to the detenu, it was their bounden duty to have supplied the copies as early as possible but in no case after the confirmation of the order of detention. In this way, the petitioner has been deprived of his right to make an effective and purposeful representation to the concerned authorities. On this aspect, the Supreme Court in case Writ petition No. 454187 re: Bhupinder Singh vs. Union of India and others, decided on 6th January, 1987(3), had the occasion to denounce the practice adopted by the respondents in not supplying the documents asked for immediately or at least before his case is taken up by the Advisory Board. In the said case, the order of detention is dated 19th March, 1986. The petitioner was arrested on April 16, 1986 and was served with the copy of the order of detention. On May 12, 1986, he was produced before the Advisory Board where he made a complaint that the copies of the documents which were supplied to him along with the grounds of detention were not legible. He requested for the supply of the legible copies of the documents. The Under Secretary to the Government of India conceded the demand of the detenu for legible copies of the documents and directed the Directorate of Enforcement vide his letter dated 19-5-1986 to supply the duplicate set of documents to the petitioner. Before the legible copies of the documents were supplied to the detenus, the detention order was confirmed on June 14, 1986. On this, the court observed:- "THE detenu was thus clearly denied the opportunity of making representation and there was, therefore, a clear contravention of the right guaranteed by Article 22 of the Constitution of India."

On that score, the order of detention was quashed. The law laid down by the Supreme Court Judgment fairly and squarely applies to the case in hand. There is no worthwhile explanation from the side of the respondents for this default. The conclusion is obvious. Having regard to all the circumstances, the petition succeeds and the order of detention is quashed. The petitioner be set at liberty forthwith if not required to be detained under the order of any competent court or authority.