Surya Prakash Sharma @ S.P. Sharma vs Union Of India & Ors.
2001 Latest Caselaw 929 Del

ORDER

Arijit Pasayat, C.J.

1. Order of detention passed on 11.08.2000 by the Joint Secretary to the Government of India under section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (in short, 'the Act') pursuant to which the petitioner Surya Prakash Sharma (hereinafter referred to as 'detenu') is detained in the Central Jail, Tihar, New Delhi, is assailed in this habeas corpus petition.

2. Detention of the detenu was considered necessary by the Detaining Authority with a view to present him from smuggling goods in future. The grounds of detention dated 11.08.2000 were supplied to the detenu in both English and Hindi language. The detenu was made aware of his right to make representation against the detention to the Detaining Authority, Central Government as well as the Advisory Board. It was indicated that the representation meant for the Detaining Authority was to be addressed to the Joint Secretary, (COFEPOSA), Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau; the representation meant for the Central Government was to be addressed to the Secretary, Ministry of Finance, Department of Revenue; and the representation meant for the Advisory Board to be addressed to the Chairman, Advisory Board (COFEPOSA), Delhi High Court. The grounds were communicated for the purpose of clause (5) of Article 22 of the Constitution of India, 1950 (in short, 'the Constitution') and Section 3(3) of the Act. The detenu made representations to the Detaining Authority, the Central Government and the Advisory Board, but the prayer for revoking the detention did not find acceptance.

3. In support of the wit petition primarily following stands have been taken:-

a) there was no ground for directing detention;

b) there was variation between the English version and the Hindi version of the grounds of detention on material aspects, and omission of a vital line in the Hindi version thereby depriving the detenu the opportunity of making an effective representation.

c) Petitioner's representations were not considered with due expedition.

Learned counsel for the respondents, however, submitted that the factual position highlighted in the grounds of detention shows that on the basis of past conduct the propensities of the detenu indulging in activities considered objectionable and clearly indicated in future. It was further submitted that the detenue is a highly qualified and his feigned ignorance of English language was only a ruse to hide the truth. Even if it is accepted, there were minor variations in the two versions, that in no manner prejudiced the detenu and or deprived him from making an effective representation. At the time of hearing, the challenge to the order was restricted only on the ground of variation/omission in the two versions and delay in disposal of representation.

4. The distinction between omission and contradictions has great significance. As omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point to any assertion, which is irreconcilable. In this context, the Explanation appended to Section 162 of the Code of Criminal Procedure, 1973 (in short, 'the Code') throws considerable light. Usually an omission is not a contradiction, but the omission to state an important fact is a contradiction or at any rate, it is a contradiction in substance. Omission to state minor details would not amount to contradiction. Even omission does not amount to contradiction unless that omission virtually touches the very factum, which is required to be proved or established.

5. What is important in such cases is the prejudice caused to the detenu in the background of his knowledge of English language. This has to be tested on the facts of each case and no general principle of universal application can be laid down. It has to be seen in each case a to whether it was 'feigned ignorance' of English language (to borrow the language used by the Apex Court in Prakash Chandra Mehta v. Commissioner & Secretary to Government of Kerala ). It is conceivable that a Science Graduate does not have workable knowledge in English. The plea that being a Science Graduate from a pre-dominantly Hindi speaking area, knowledge in English is almost non-existent is a too fragile one to deserve acceptance. Petitioner has highlighted omission of one line in the Hindi version. Question is one of, as indicated above, prejudice in the background of an opportunity to make effective representation. This is not a case of variation or contradiction. The omission in the Hindi version, in our opinion, is not sufficient to create confusion. The representations were in English language. The feigned ignorance of the language cannot come to detenu - Petitioner's aid.

It may be noted that several instances have come to our notice where variations between the two versions or omissions are highlighted. Learned Counsel appearing for the respondents was fair enough to accept this. According to him, however, the variations and/or omissions are usually a result of clerical mistake and unintentional. While that may be so, the requisite care and caution, which has to be exercised in a matter where personal liberty of a person is in peril, needs to be kept in view. It is true that in certain cases, like the present one where the variations/omissions are of trifle nature and do not really cause any prejudice, they can be ignored. But there may be cases where variations are significant and really go to the root of the matter. The Authorities have to keep these aspects in mind and no effort should be spared to see that accurate and parallel versions are supplied to the detenue, who has a Constitutional and/or statutory right to make a representation questioning his detention.

6. Coming to the question whether there was delay in disposal of the representations, a few dates need to be noted. So far as the State Government is concerned, the representation dated 14.09.2000 was sent to the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence on 15.09.2000. Similarly, representation dated 05.10.2000 was sent on 06.10.2000. So far as the detaining authority is concerned, verification of records show that representation dated 04.10.2000 (signed on 05.10.2000) was received on 06.10.2000 and 07.10.2000 and 08.10.2000 were holidays. Comments from the sponsoring authority were received on 11.10.2000. Petitioner was heard by the Advisory Board on 10.10.2000. Another representation addressed to the Advisory Board was forwarded along with its report dated 16.1.2000 and received by the detaining authority on 17.10.2000. The two representations were not disposed of piecemeal and were considered by the detaining authority after receipt of the opinion of the Central Government in the light of the Advisory Board's report on 02.11.2000 and representations were rejected on 03.11.2000. The cause adopted cannot be said to be impermissible in view of what has been decided by the Apex Court in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India & Ors. State of Karnataka & Ors. . As a fairly well-settled that it is not the period which is taken that matters, but the period of un-explained inaction which is vital viewed from that angle thee is no substance in the plea that there was delay in disposal of representations.

7. The petition is without any merit and is dismissed.