Anil Das And Others vs Union Of India & Ors.
1999 Latest Caselaw 892 Del

ORDER

S.K. Agarwal J.

1. This judgment disposes of above noted three writ petitions, by which petitioners have challenged three separate detention orders passed against them, each dated 6th April, 1999 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act) by the respondent No. 2, with a view to preventing them from engaging in and transporting smuggled goods. These petitions raise a common question whether petitioners were prevented from making effective represen-tation against the impugned order of detention, on the ground that complete copies of the documents, in the language known to them, relied upon by the detaining authority, were not supplied thereby vitiating their continued detention.

2. Brief facts are : that on 9th August, 1998 officers of the Directorate of Revenue Intelligence (for short DRI ) intercepted an abandoned truck near Agra ; no person was available in the truck, the officers kept sur-veillance for nearly two hours to locate its driver or any of its occupant but in vain. Thereafter truck was brought from Agra to the office of D.R.I., Paryavaran Bhawan, CGO Complex, New Delhi from which 228 packages containing bearings and other miscellaneous items, viz. re-chargeable light with radio and cassette player of foreign origin collectively valued at Rs.

90,49,550/-, were recovered. These were seized under the Customs Act, 1962. Contraband items were found concealed under some animal fodder. Receipts of the animal fodder recovered from the truck revealed that the goods originated from Siliguri, West Bengal. A follow up action was taken and during investigation the petitioners were summoned they in their separate statements recorded on 14th September, 1998, inter alia, admitted that they had been dealing in smuggling of foreign goods for the last about 3 years along with their associates. However, they claimed that for the last about 4-5 months they had been working independently and the goods seized by the DRI belonged to their syndicate and were loaded in the first week of August 1998 from Kishanganj ; that the contraband was owned by Kamal Hazra, petitioner, Consequently they were arrested and produced before the Judicial Magistrate, Siliguri on 15.9.98 and transit remand was obtained. Thereafter they were brought to Delhi and produced in the Court of Additional Chief Metropolitan Magistrate, Patiala House, New Delhi and were remanded to judicial custody from time to time.

3. On the basis of the above allegations a complaint was filed under the Customs Act, 1962 on 12.11.1998 in the Court of Additional Chief Metropolitan Magistrate, New Delhi, cognizance of which was taken by the learned trial Court. In the meantime a show cause notice was also issued by the Custom Authorities and a reply to the same was sent by them.

4. Petitioner - Anil Das, was ordered to be released on bail by learned Single Judge of this Court vide orders dated 4.1.1999. However, he surrendered himself before the Court at Siliguri where he was wanted in connection with another case. Petitioner- Ghosh, was released on bail by Additional Sessions Judge vide orders dated 18.1.1999 and Petitioner - Kamal Hazra, was released on bail by learned Single Judge of this Court vide order dated 19.2.1999.

5. On 6th April, 1999 the detaining authority passed the impugned detention order taking into consideration their past activities and antecedents, high potentiality and propensity to indulge in such activities in future, which was served on the petitioners on 8th and 9th April, 1998 while they were in custody, and copies of the documents, with Bengali translation relied upon, were supplied to them as per law.

6. We have heard learned counsel for the parties and have been taken through the record.

7. Learned counsel for the petitioners argued that the only language know to the petitioners is Bengali and in the Bengali sets of documents the statements supplied to petitioners contain certain portions in language not know to them. Petitioners were unable to ascertain whether that portion was materially connected with the rest of the portion of the statement or not thereby frustrating the right of petitioners to make an effective and purposeful representation rendering the detention illegal. The page Nos. of Bengali sets of documents which contain certain portions in a language not known to them are 116, 118, 129, 133 and 135. It amounts to non-communication of grounds.

8. In reply, learned counsel for the respondent argued that though Bengali translation of titles of some of the statements appearing at page Nos. 116, 118, 129, 133 and 135, as mentioned by the petitioners were not supplied, but the material contents of the said documents were made available to the petitioners in the language known to them. Therefore, non-supply of Bengali translation of only the titles of the documents has not affected the right of the detenu to make a complete and effective representation in any manner.

9. In order to appreciate their respective contentions relevant portions of the documents which were admittedly not supplied to the petitioners in Bengali language are reproduced hereinbelow : -

Page 116 - "Statement (Voluntarily ) obtained from Sri Anil Das, S/o Sri Maindra Lal Das, Vivekananda Pally, Bagdogra, u/s. 108 of the Customs Act, '62 in connection with the follow up enquiry regarding Seizure of Ball Bearing and other items valued at Rs. 90,49,550/- seized vide S/c No. 30/DRU/OSD/98 dt. 11.8.98."

Page 118 - "Voluntary Statement (Interrogatory) of Sri Anil Das, S/o Sri Manindra Lal Das, Vivekananda Pally , Bagdogra, u/s. 108 of the Customs Act, 1962 in connection with the follow up enquiry regarding Seizure case No. 30/DUR/OSD/98 dt. 11.8.98 valued at Rs. 90,49,550.00 only"

Page 129 - "Statement of Sri Kamal Hazra in respect of S/c No. 30/DRU/OSD/98 dt. 11.8.98"

Page 133 - "Statement of Sri Badan Ghosh Alias Kamal Ghosh in respect of S/c No. 30/DRU/OSD/98 dt. 11.8.98."

Page 135 - "Interrogatory Statement of Sri Badan Ghosh in Seizure case No. 4/DRI/SLG/98 dt. 29.3.98"

10. Law with regard to the supply of documents along with the grounds of detention is now well settled. In Wasi Uddin Ahmed Vs. The District Magistrate, Aligarh, UP & Ors., , the Supreme "Court after considering several earlier decision observed :-

"In a series of decisions, this Court has, on a construction of Art. 22(5) of the Constitution, read with sub-sec. (3) of Sec. 3 of the COFEPOSA Act, held that 'the right of making an effective representation' carries with it the right to copies of documents relied upon in the grounds of detention. Factual contents of the grounds of detention on which the subjective satisfaction of the detaining authority was based have to be disclosed to the detenu to make an effective representation. It is however, not necessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of events and which are not relied upon by the detaining authority in making the order of detention."

11. In a subsequent decision Supreme Court further clarified the law in Mrs. Tsering Dolkar Vs. Administrator Union, Territory of Delhi & Ors., :

"There can be no two opinions that the requirement of law within the provisions of Article 22(5) of the Constitution is that the detenu has to be informed about the grounds of detention in a 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. Reliance was placed by the learned Additional Solicitor General on a decision of this Court in Prakash Chandra Mehta Vs. Commr. & Secy, Govt. of Kerala, in support of his contention that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the documents accompanying the grounds were not in a language known to the detenu the order would not be vitiated. There is no clear indication of the test of prejudice being applied in that case. On the facts relevant before the Court, a conclusion was reached that the detenu was merely feigning ignorance of English, and on the footing that he knew English, the matter was disposed of. 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."

12. In a recent decision in S.M. Jahubar Sathik Vs. State of Tamil Nadu & Ors., II (1999) CCR 356 (SC) Supreme Court reiterated the same view.

13. Above noted headings/captions/titles are introductory parts of the documents and contain significant facts. These are thus material and vital portions of the documents. In the absence of headings/captions/titles of the said documents, a reader may be misled and may not be in a position to under stand their true import and meaning. Thus, non-supply of any material or vital portion of a document relied upon by the detaining authority, as per law, in the language known to the detenu, amounts to non-supply of the document itself. As observed by the Supreme Court in Mrs. Tsering Dolkar (supra) in the matters of preventive detention, the test is not one of prejudice but one of the strict compliance with the provisions of the Act and whenever there is a failure to comply with those requirements it is not possible to sustain the order. Admittedly, the above documents have not been supplied despite representations of the petitioners. Consequently, we are of the considered view that the petitioners have been deprived of their valuable right to make effective and purposeful representation. Their continued detention thus is in violation of their fundamental, right guaranteed under Article 22(5) of the Constitution of India.

14. In view of the above, the petitions are allowed. Detention orders dated 6th April, 1999 with respect to each petitioner, in each petition are quashed. The petitioners are ordered to be released forthwith unless required to be detained in some other case.

15. No order as to costs.