Ashwani [email protected] vs Union Of India & Ors.
2001 Latest Caselaw 931 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 Ashwani Kumar @ Verma (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 prevent 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, Cental 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 Cental Government and the Advisory Board, but the prayer for revoking the detention did not find acceptance. In support of the writ 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, thereby depriving the detenu the opportunity of making an effective representation.

Learned counsel for the respondents, however, submitted that the factual position highlighted in the grounds of detention show the propensities of the detenu's indulging in activities considered objectionable and clearly indicated on the basis of past conduct, the propensity to indulge in such activities in future. It was further submitted that the detenu was highly qualified and his feigned ignorance of English language was only ruse to hide the truth. Even if it is accepted, there were minor variations in the two versions that in no manner prejudice to the detenu and or deprived him from an opportunity to make an effective representation. At the time of hearing, the challenge to the order was restricted only on the ground of variation in the two versions and to the ground of non-examination of the witness.

3. Main ground of challenge is alleged variation in the two versions. The difference between English and Hindi are as follows:-

(a) In 7th line at para one of the grounds of detention in the English version, it is recorded, "A personal search of Shri Lalchand in the presence of Pancha resulted in the recovery of ....." while in the Hindi Version at page 11 in para 1 at ninth line it is stated,"LALCHAND KE DO GAWAHON KE SAMNE LEE GAI VYAKTIGAT TALASI".

(b) Similarly in para 3 of grounds of detention, it is recorded in the English version, "..... and S.P. Sharma came to the Airport was conducted before Panchas on 30.06.2000". In the Hindi version at page 4, it is stated, "..... KEE TALASI DINANK 30.06.2000 KO DO PANCHON KE SAMAKSH LEE". This "two panchas" are not mentioned in the English version while as finds mentioned in the Hindi version.

(c) Again in para 3 of the English version of grounds of detention Sim Card No. is given 0005681789, while as at page 4 of the grounds of detention in Hindi, Sim Card No. is given 9811067761.

(d) At page 9:-

(i) In para 13 of the English version of grounds of detention. In the English version, it is recorded in paras, "Lalchand and you filed application dated 13.07.2000 before ACMM, New Delhi for return of jamatalasi articles. The Jamatalasi articles in respect of Akhilesh Kumar Tyagi, Lalchand and you have been returned on 31.07.2000.

(ii) Similarly in para 14, it is written of the English version of the grounds "Follow up search conducted at your residence in Delhi on 30.06.2000 and at Delhi residence of S/Shri S.P. Sharma, Akhilesh Kumar Tyagi and Lalchand and search conducted on 30.06.2000 at .....".

(iii) Para 17 of grounds of detention of the English version, it is stated, "scrutiny of the Indian passport No. B-0568942 dated 10.09.1999 in your name shows the following departure from India and arrivals into India".

(iv) In the Hindi translation at page 20, it is stated for para 13, "LALCHAND AUR ASHWANI KUMAR URF VERMA NE 13.07.2000 KO ACCM NAI DILLI KE SAMAKSH JAMATALASI KA SAMMAN KE WAPSE KE LEYA ARZE DE. AAP KE, SAAMAN 31.07.2000 KO LOTA DIYA GAYA". For para 14, the Hindi translation at page 20 is "30.06.2000 DILLI STITH NIVAS PARISAR KO LALCHAND, ASHWANI KUMAR URF VERMA KE DILLI STITH NIVAS PARISAR AUR S.P. SHARMA, LALCHAND, ASHWANI KUMAR URF VERMA KA DILLI STITH NIVAS PARISARON .....".

Further in the Hindi version at page 1, "flight No. 408" is missing though in the English version "by flight SQ 408 dated 29.06.2000" is mentioned. Similarly at pages 5 to 7, the English version describes the address at WA080, Shakarpur, Delhi, while the same is missing in the Hindi version. Between pages 8 to 10, in the English version, it is stated "under Panchnama dated 30.06.2000" but this does not find place in the Hindi version. Similarly though in the English version at page 10, it is stated, "In case bail is granted, you were likely to indulge in smuggling of goods as you have the potentiality and propensity to indulge in said activity in future", while the same is missing in the Hindi version. In Page 2, para 3, it is stated in the English version a "before pancha on 30.06.2000" but in the Hindi version, it is stated as "do gawalon ke samne". In page 96, passport number is given a "Passport No. B-0562942". At page 51, reference is made to "Akhilesh Kr. Tyagi showing him as Director" in the English version, while the same is missing in the Hindi version. Respondents have admitted these variations and certain omissions. They have tried to brush away them taking the stand that they are inconsequential, trifle and do not anyway cause prejudice to the detenu.

4. The distinction between omission and contradictions has great significance. An 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. Judged in the above background, it has to be seen as to whether any prejudice has been caused or the constitutional right of making an effective representation has been aborted. It cannot but be held that detenu had workable knowledge in English. It is inconceivable that a person, who has travelled abroad quite a large number of times for exports and imports for business (as claimed by detenu himself) did not have working knowledge in English is untenable. But the further question is whether the difference in the two versions (i.e., English and Hindi) was capable of creating confusion in his mind, more particularly when numbers and descriptions of persons vary. That according to us is so. They are treated as contradictions or variations of substantial nature. Inevitable conclusion is that petitioner's valuable right of making an effective representation has been jeopardized, making his detention vulnerable.

6. It may be noted that several instances have come to our notice where variations between the two versions are presented. Learned Additional Solicitor General appearing for the respondents was fair enough to accept this. According to him, the variation was as 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 no emphasis. It is true that in certain cases where the variations are of trifle nature and do not really cause any prejudice, they can be ignored as has been done in some cases by us, but there may be cases like the present one where variations are significant and rally go to the root of the matter. The Authorities have to keep these aspects in mind and no effect should be spread to see that accurate and parallel versions are supplied to the detenue, who has a Constitutional and/or a statutory right to make a representation questioning his detention.

7. The order of detention vide Annexure 'A' is quashed. Petitioner-detenu be set at liberty forthwith unless he is required to be in custody in some other case/proceeding. Writ petition is allowed.