Sat Pal Shah vs Union Of India And Others
1987 Latest Caselaw 3 Del

JUDGMENT

M.K. Chawla, J.

1. On the basis of intelligence that Lakhminder Singh @ Lakha was actually engaged in smuggling of contraband gold biscuits to Delhi from Amritsar on the night of 26/27th January, 1987, the officers of the Department of Revenue Intelligence, New Delhi maintained a surveillance at Kundali on the Delhi-Haryana Border. They succeeded in intercepting the Truck No. PAT 1155 wherein four persons, namely, S/Shri Sikandar Singh, Nirmal Singh, Harcharan Singh and Lakhminder Singh were found. The truck was apparently loaded with rock- salt. This truck along with its occupants was brought to the Office of the Directorate of Revenue Intelligence where a detailed search resulted in the recovery of 150 gold biscuits of foreign origin, from an ingenuously built secret cavity in the dash board of the vehicle. Since on demand none of the occupants of the Truck could produce any evidence to show the legal import or possession of the contraband gold, the same was seized along with the truck, under the reasonable belief that the same is liable to confiscation under the provisions of the Customs Act, 1962 and Gold Control Act, 1968.

2. In his statement recorded under Section 108 of the Customs Act, Shri Lakhminder Singh admitted the recovery of the contraband gold from his truck. According to him this consignment was to be delivered to the petitioner Shri Satpal @ Shah and one Surinder Kumar Arora for disposal. Business as well as residential premises of the two named persons were searched but nothing incriminating was recovered. In their statements the petitioner as well as Surinder Kumar Arora admitted that the gold biscuits recovered from the truck of Lakhvinder Singh were to be delivered to them from disposal.

3. The petitioner along with Lakvinder Singh, Sikander Singh and Surinder Kumar Arora were placed under arrest on 27th January, 1987 and were produced before the Addl. Chief Metropolitan Magistrate, New Delhi on 28th January, 1987. All if them were remanded to judicial custody till 11th February,1987.

4. On the basis of the facts and circumstances which have come on record, Shri Tarun Roy, Joint Secretary to the Government of India concluded thus :

"I have no hesitation in arriving at the conclusion that you have been actively dealing in smuggled goods, otherwise than by engaging in transporting, concealing and keeping smuggled goods. Even though the investigations in the subject case is in progress and prosecution and adjudication proceedings under the Customs Act, 1962 and Gold (Control) Act, 1968 are likely to be initiated against you, I am satisfied that you should be detained under the COFEPOSA Act, 1974 with a view to preventing you from dealing in smuggled goods, otherwise than by engaging in transporting, concealing and keeping smuggled goods".

The order of detention is dated 11th February, 1987. On that very day the order of detention along with the grounds of detention was served on the petitioner through Superintendent, Tihar Jail.

5.This very order of detention is under challenge in the present writ petition on numerous grounds. The first ground of attack is that the petitioner inspite of repeated request and reminders. His case is that he is conversant with one language i.e. Lunda and can write business accounts in broken Urdu, whereas the documents supplied to him are in English and Hindi. Specific request in this behalf was made on 23rd February, 1987 when his counsel addressed the communication to Shri Tarun Roy, the detaining authority. The respondents in their reply dated 4th March, 1987 rejected the representation by giving the following reasons :

"The information requested for is not relevant for making an effective representation and all the documents relied upon have been supplied along with the grounds of detention both in English and Hindi, a language known to him".

6. In his second representation dated 12th March, 1987 through Superintendent, Central Jail, Tihar, besides raising other grounds, the petitioner again reiterated his grievance of the non-supply of the papers in the language known to him. This representation met the same fate.

7. In the counter also, the stand of the respondent is that there has been no violation of the petitioner's Constitutional right guaranteed under the article 22(5) of the Constitution inasmuch as the documents relied upon were given to the petitioner in the language known and understood by him. It is also alleged that in view of the fact that the petitioner's representations dated 23rd February 1987, and 12th March, 1987 were submitted in English through an Advocate which makes it amply clear could communicate and explain the implications of all the documents, compliance with the requirement of law and no prejudice has been caused to the detenu.

8. This explanation, to my mind, is devoid of any substance. The fact remains that till the date of the filing of the petition, he has not been supplied with the copies of the documents in the language known to him. It has all along been grievance of the petitioner that he being an illiterate person can only understand and write his business accounts in broken Urdu and Lunda. He repeated this averment not only in his two representations but also before the Advisory Board. Inspite of that the detaining authority has not cared to supply him the documents in the said language. In their opinion which they still insist upon, the detenu knows Hindi as well, in which the copies of the documents have been supplied. This has neither caused any prejudice to the detenu nor has it affected his defense. The defense raised by the respondent does not satisfy the legal requirement. It is not the due compliance of the provisions of the COFEPOSA Act, and the provisions of Article 22(5) of the Constitution which lays down that the detaining authority is to provide material to the detenu in the language which he understands so that an representation against the detention may be made. This controversy has now been set at rest in the latest judgment of the Supreme Court reported as Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi and others, . 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 order of detention, grounds of detention and other documents were supplied to the petitioner in English and in Tibetan language, whereas the petitioner/detent had asked for the copies of the documents in Ladagi language. The department tried to take shelter of the fact that the petitioner'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 provisions of Article 22(5) of the Constitution is that the detenu has to be informed about the grounds of detention in knew the language in which the grounds 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 requirements." "....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 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 the relevant documents and orders 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 inasmuch as the documents accompanying the grounds of detention were in English and Hindi, which language is foreign to the detenu. The judgment referred to above is complete answer to the stand of the respondent. On this short ground, the impugned order is liable to be quashed.

9. This is also a case of its own type where even the petitioner has not been examined by the Advisory Board. He along with the other co- detenus was produced before the Advisory Board on 31-3-1987. Out of the four co- accused, he was the last person to be produced. As soon as he was taken to the Committee Room, the petitioner suffered a heart attack and complained of severe pain. Before the commencement of his examination, he was asked to go out and take rest. From there he was immediately rushed to the hospital. It is also the case of the respondents that while the other detenus were being heard, the petitioner complained of pain and was asked by the Advisory Board to go out and take rest. However, in the alternative, their stand is that the petitioner was heard by the Advisory Board. The alternative plea is quite contrary to the material on record. It is not disputed that the petitioner is a very serious case of heart disease. He is an old man of 62 years having CAD (Coronary Artery Disease/Heart disease) with old myocardial infraction (Heart attack) with enlarged heart with chronic retention of water (fluid) in lungs with early left side heart failure. In the opinion of the medical officer, Central Jail, the management of such a complicated case is beyond the scope of the facilities available where the detenu is detained at present. The petitioner was never summoned again by the Advisory Board but his order of detention was confirmed on 21-4-1987.

10. Under Section 8(c) of the Act, the Advisory Board to which a reference has been made under clause (b) is required to consider the reference and the material placed before it, hear the person concerned and thereafter prepare and submit its opinion within 11 weeks from the date of detention of the person concerned. The date of detention of the petitioner is 11-2-1987. The limitation of 11 weeks will expire on or before 4-5-1987. The meeting of the Advisory Board was held on 31- 3-1987 and the order of detention was confirmed on 21-4-1987. From 31- 3-1987 till the expiry of 11 weeks there was sufficient time with the Advisory Board to recall and examine the petitioner, and record the evidence of the witnesses, if at all he was anxious to produce. This valuable right of the petitioner has been curtailed without any lawful excuse. This aspect can also be looked into from another angle. In the counter of Shri Tarun Roy was not present at the time the detenu was produced before the Advisory Board. His information is based on the official record which neither here nor there. It would have been better for the Department to have filed the affidavit of an Officer/Secretary to the Board who happened to be present at the time of hearing of the detenus to narrate the sequence of events which happened at that time. The respondents have missed the bus. There is no reason to disbelieve the petitioner on this aspect. In the final analysis, the petitioner must be held to have been deprived of his constitutional right to be heard by the Advisory Board before the confirmation of the order of the deten tion.

11. Even on merits, the petitioner has a case. Unfortunately, he happened to be present in the office of Surinder Kumar Arora when the officers of the D.R.I. raided and searched the premises on 27-1-1987. He was arrested land his statement under Section 108 of the Customs Act was recorded. In his statement, the only incriminating circumstance is that he along with Surinder Kumar Arora used to dispose of the gold brought by the other co-accused. In return, they used to be paid Rs. 50/- per biscuit. This very statement was immediately retraced by the petitioner at the first available opportunity. Except this so-called confession, and th statement of the other co-accused, there is no other material to fasten the liability of smuggling, transporting, disposing of or storing the smuggled god. He is not a previous convict not any criminal case is pending against him. This is his first involvement. He is aged 62 years and a heart patient. It does not appeal to ones sense that on the disposal of one gold biscuit of the value of Rs. 30,000/-, he will be paid Rs. 50/- to be equally shared with surinder Kumar Arora. He is under detention for the last about 7 months. His is a case that deserves sympathetic consideration. In this way, I do not propose to infringe upon or sit in appeal over the subjective satisfaction of the detaining authority, but I have no reservations to point out that the attention of the detaining authority should be focussed on the kingpins or the persons concerned in large-scale smuggling activities rather than a small fry like the petitioner, who was a mere courier.

12. In the result, the petition succeeds and the impugned order of detention is squahsed. The petitioner be set at liberty forthwith unless required to be detained under the orders of a competent court or authority.