Smt. Sushila Aggarwal W/O Sh. ... vs Union Of India (Uoi) Service Be ...
2002 Latest Caselaw 921 Del

JUDGMENT

Khan, J.

1. Petitioner's husband, Pawan Kumar, was first arrested on 16.7.2001 under Section 132 and 135 of the Customs Act and was later let off on bail and finally detained vide detention order dated 9.10.01 passed under Section 3(1) of COFEPOSA to prevent him for smuggling goods in future. This order was served on him on 10.10.2001, but grounds of detention and other relief upon documents were, however, supplied to him on 20.10.2001 within 11 days instead of ordinarily with five days from the date of detention as prescribed by Section 3(3). He made of representation against the detention which was rejected. His case was referred to the Advisory Board which affirmed his detention and which was finally approved by the Government.

2. The detenu's detention is sought to be primarily challenged on :-

(i) that grounds of detention and relied upon documents were supplied to the detenu five days later and that no exceptional circumstances existed or was shown thus infringing mandate of Section 3(3).

(ii) that Hindi translation of some of the documents was not supplied to him making it difficult for him to make an effective representation against his detention; and

(iii) that detention order suffered from non-application of mind because of last minute receipt of letter dated 8.10.2001 by the Authority and as all the documents were not available before the Authority on the date of passing of order.

3. Respondents counter says that detenu was involved in exporting large consignments of silk tops in 10 Shipping Bills under Duty Entitlement Pass Book (DEPB)-cum-Drawback Scheme, each SB having FOB value of Rs. 1.86 crores approximately and that goods were exported on the basis of manual Let Export Order (LEO) in an unauthorised manner. Preliminary investigations revealed that the detenu's firm M/s. Zap Fashion had filed 14 Manual SBs for export of 100% silk ladies tops for a total FOB value of Rs. 74.40 crores but actual exports had, however, taken place against 10 SBs only. The investigations had revealed that all the cartons were packed with rags and chindies and there was no case where 'ladies silk tops' declared in the SB/invoice was found in the export consignment and it was in the background that the detenu was ordered to be detained to prevent him from indulging in smuggling activities by the detaining authority on consideration of all relevant material and on deriving requisite satisfaction.

4. It is explained that while detention order was served on detenu on 10.10.01, he was to be supplied grounds of detention and relied upon documents ordinarily by 15.10.01. But the sponsoring authority (Commissioner, Customs) requested for extension of time vide his letter dated 12.10.01 as the volume of records/documents to be translated into vernacular (Hindi) was substantial. His request was considered by the Detaining Authority who felt satisfied that exceptional circumstances exist to grant extension of time which was granted. The authority accordingly recorded reasons for this and ordered communication of grounds and relied upon documents within 15 days from the date of detention or as early as possible within that period. The permission was communicated to sponsoring authority on 12.10.2001 itself and grounds of detention and relied upon documents were served on the detenu on 20.10.2001, five days earlier than the deadline which showed the bonafide of the Authority and also that delay, if any, was not intentional.

5. As regards petitioner's other grievance, it is submitted that detenu was supplied all Hindi translation of almost all relied upon documents except those which were standard official documents in the prescribed format like copies of some airway bills, shipping bills, Manual Let Export Orders and invoices pertaining to export of two consignments which could not be translated and with which the detenu was otherwise conversant being and exporter. Non-supply of Hindi version of such documents, therefore, could not come in his way of making any effective representation against his detention. Moreover, the detenu was also conversant with English as would be evident from his letter dated 27.6.2001 and his signatures.

The detention order is justified and it is claimed that it was passed on requisite satisfaction and application of mind and on the basis of all available relevant material. It is, however, admitted that last document (letter dated 8.10.2001) sent by DRI to detaining authority was considered by the authority while passing the order.

6. The other grounds taken by petitioner are also replied in this affidavit but these could be by-passed for being not pressed in service by her counsel.

8. Reverting to the first ground of challenge on which would depend the fate of this petition, L/C for the petitioner Mr. Herjinder Singh claimed that detenu's detention was vitiated as he was not supplied grounds of detention was relied upon documents within first five days of his detention and as no exceptional circumstance existed or was shown to warrant any further extension of time in this. He referred to respondents stand in this regard and asserted that translation of voluminous documents could not constitute an exceptional circumstances under Section 3(3) of the Act. He set much store for this on Supreme Court judgment in Ibrahim Ahmad Bhatti v. State of Gujarat 1983 SCC (Crl) 66 to show that translation of the documents did not constitute an exceptional circumstances to warrant any extension of time in this regard. He also distinguished the Supreme Court judgment in State of Rajasthan v. Talib Khan 1977 SCC (Crl) 29 which was only an authority on the point that exceptional circumstances were not required to be communicated to the detenu by the detaining authority. He urged this court enjoyed the power of judicial review to examine whether the reasons advanced by the Detaining Authority constituted the exceptional circumstances or not and referred to host of Supreme Court judgments to support this.

9. Mr. singh also attacked the detention order on the ground of respondents failure to supply Hindi version of some documents to detenu and relied upon Supreme Court judgments in Razia Umer Bakshi v. U.O.I. 1980 SCC (Crl) 846 and Powanammal v. State of T.N. 1999 SC (Crl) 231 for this. He lastly submitted that detenu's detention suffered from non-application of mind as the last document (letter dated 8.10.01) could not have been taken into consideration by the detaining authority on the last minute and as all documents were not available with the detention authority on the date of passing of detention order, because these were admittedly in the process of being translated.

10. Ld. ASG Mr. Sud justified the detention and late communication of grounds to the detenu on the thesis that voluminous record/documents required to be translated which involved as many as about 600 documents and which naturally took some time. He made light of five days delay and defendant the action showing the bonafides of the Authority to supply the grounds earlier than the extended time and no prejudice having been caused to the detenu in process. He also deferred the non-supply of Hindi version of some documents to detenu which were standard format documents and could not be translated in Hindi and as the detenu was otherwise conversant with English. He heavily relied upon Supreme Court judgment in Talib Khan's case to suggest that exceptional circumstances within the meaning of Section 3(3) of the Act depended on the facts and circumstances of each case and that there was no general proposition laid down by Supreme Court in Bhatti's case that translation of voluminous documents would not constitute an exceptional circumstance.

11. It is settled that this court enjoys the power to examine the reasons advanced by the Detaining Authority and to determine whether these constituted an exceptional circumstance under Section 3(3). Therefore, there is no need to refer to judgments cited by petitioner's counsel on the point. That being so, the whole controversy turns on whether there was an exceptional circumstance which prevented the Authority from supplying grounds within first five days and whether translation of documents could constitute such circumstance in the facts and circumstances of the case. Since there is no dispute on the recording of reasons by the Authority in this regard, that requirement of the provision is deemed satisfied. What is an exceptional circumstance could perhaps be better appreciated on examining the terms of Section 3(3) which reads :-

"(3) For the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and of reasons to be recorded in writing, not later than fifteen days, from the date of detention."

12. A plain reading of this provision shows that grounds are to be communicated to the detenu as soon as may be after the detention but ordinarily not later than 5 days and in exceptional circumstance and for reasons to be recorded in writing not later than 15 days from the date of detention. In simpler terms, it means that a detenu is to be supplied grounds of detention as soon as possible after the date of his detention and ordinarily within 5 days there from and in any case within 15 days in exceptional circumstances and for reasons to be recorded. The provision thus provides three times frames. The first is covered by the expression "as soon as may be" which makes the grounds liable to be supplied even next day from the date of detention or within first five days. But if that was not to be, the grounds had to be supplied ordinarily within 5 days from the date of detention. The word "ordinarily" again suggests that this was not the dead line and that this period was liable to be extended. The maximum extension could be granted up to 15 days from the date of detention but for exceptional circumstance and reasons recorded. It requires, therefore, to be noticed that 15 days was the outer limit for supply of grounds and the deadline if crossed could invalidate the detention. The rationale behind all this was to ensure that detenu was afforded the earliest opportunity to make effective representation against his detention so as to satisfy the constitutional requirement of Article 22(5) which conferred on him the right to make such representation at the earliest.

13. It is in this conspectus and perspective that meaning and spirit of expression "exceptional circumstances" required to be determined and going by the settled norms of interpretation it is not dictionary meaning alone which could clinch the issue, though it could be of some help to arrive at its real meaning. Fruk and Wegnall's Standard Dictionary defines 'exceptional' as constituted or related to exception, unusual, uncommon. Murray's New English Dictionary defines it as unusual, special and out of ordinary course. Oxford Dictionary defines it as very unusual, outstanding.

14. The term 'exceptional' circumstance' has fallen for consideration by the Supreme Court also in Ibrahim Ahmad Bhatti's and Talib Khan's cases, but no definite meaning has been given to it as such. In the second case, however, it was held that an exceptional circumstance is always a question of fact in each case and that it was for the Appropriate Government/Advisory Board/Court to feel satisfied with regard to recorded exceptional circumstance and whether detention was vitiated on that account. The court held :-

"The exceptional circumstances are those due to which the grounds and the documents could not be supplied to the detenu and the same were recorded in writing in the record of the detaining authority. If the appropriate Government or the Advisory Board or the Court are not satisfied with the recorded exceptional circumstances due to which the grounds of detention could not be supplied, after five days but before the expiry of 10 days, that may be one of the circumstances which the appropriate Government or Advisory Board or the Court may consider whether the detention order is vitiated or is an infraction of Article 22(5) of the Constitution. But since the Act does not envisage communication of the exceptional circumstances and the reasons recorded for non-supply of the grounds, the ground of non-communication or their non-supply by itself is not sufficient to hold that the order of detention is in violation of Article 22(5) of the Constitution."

15. In our view, exceptional circumstances contemplated by Section 3(3) is a circumstance which is not an ordinary or routine circumstance. It is a circumstance which prevented the Authority from supplying the grounds within first five days which it was otherwise "ordinarily" required to do. The word "ordinary" occurring in the first time frame assumes crucial significance. Therefore, read in that context, It can't be construed to be circumstances which is wholly uncommon or unusual like befalling of a natural calamity or breakdown of a system and so on. The expression has to be read in its proper context and totality and not in isolation and if so read, it would only mean a circumstance which disabled the Authority to adhere to the first time frame. It could be valid so long as the Authority adequately explained it away and was not found to be the product of any inaction, slackness, inertia, or willful default or negligence. No hard and fast rule or straight jacket formula could be laid down in this regard. That is how Supreme Court viewed it in Talib Khan's case holding that it all depended on the facts and circumstances of the case and that it would only constitute one of the circumstances to test the validity of the order. Where the Authority would show that it had done its best and that no default, negligence or inaction or inertia was attributable to it and yet grounds could not be supplied within first five days, the reason advanced by it would constitute an exceptional circumstance in the facts and circumstances of the case. The Supreme Court judgment in Bhatti's case, does not hold anything to the contrary. Nor does it lay down any general proposition that translation of documents would not constitute an exceptional circumstances in all events and circumstances. The Court had held so on the facts and circumstances of that case.

16. Moreover, whether or not there existed as exceptional circumstance would constitute one of the factors to test the validity of the detention. The non-existence of it would not be itself strike at the detention where other factors sustained and justified it. Moreover, when the govt. and Advisory Board feel satisfied on the exceptional nature of such circumstance the court would be loathe to enter the arena to undo the detention which was otherwise sustainable.

17. Viewed thus, it all comes to whether respondents were faced with an exceptional circumstance to supply the grounds of detention five days late which they had in any case done before the prescribed outer limit of 15 days. Two communications dated 12.10.2001 of the sponsoring authority and of the same date by the detaining authority along with official nothings are relevant for this purpose. It was on 12.10.2001 that sponsoring authority wrote to the detaining authority that a large number of statements tendered by various persons were required to be translated in Hindi and the exercise of getting these huge bulk of documents translated in Hindi was a time consuming process and that it would not be feasible to complete the translation work within the given time of five days. His request was examined by the detaining authority who felt satisfied that bulk of record/documents involved was such which needed further time to ensure correct translation in Hindi language and which constituted an exceptional circumstance to warrant further extension of time up to 15 days for supplying of grounds/documents to the detenu. The authority, however, noted that efforts must be made to communicate these as early as possible within the extended period.

18. It is not in dispute that the record/documents/ statements was voluminous and was required to be correctly translated in Hindi language. It also can't be denied that given regard to the nature of the documents and statements, a correct translation of the same was a time consuming process which could exceed the prescribed time limit. There was nothing to show that either the sponsoring authority or the detaining authority had sat over the matter or were guilty of any inaction, slackness or negligence. To top it all, even the Government and the Advisory Board had recorded their satisfaction on the issue which could not be said to be illusory or unreal. Therefore, considering all this and also the nature of the mandate of Section 3(3) and the respondents bonafides, it becomes difficult to hold that no exceptional circumstance existed within the meaning of Section 3(3) to warrant a further 5 days' extension for supplying of grounds and documents to detenu or that it had in any manner come in the way of the detenu to make an effective representation against his detention. We accordingly find nothing wrong in grounds and documents having been supplied to the detenu within 5 days of the extended time and reject petitioner's contention in this regard.

19. We also find no substance in the other two grounds pressed in service by L/C for petitioner. Because petitioner was supplied Hindi version of most of the documents except for those which were on standard prescribed for like airway bills, etc. and which could not be translated. He has also conversant with these documents, being in export business. Therefore, he could not turn round now to complain that non-supply of these documents had handicapped him in making an effective representation. Nor was this a case where he was deprived of Hindi version of relied upon documents which would have disabled him from making an effective representation.

20. The same holds true about the other plea that detention order suffered from non-application of mind because the authority had received letter 8.10.2001 on the last minute or that all the documents were not available with him at the time of passing the detention order. Nothing was shown or pointed out to us by petitioner's counsel that any crucial document was not available to Detaining Authority while passing the order of detention. On the contrary, it was stated by detaining authority that he had considered the letter in question and derived satisfaction on all available relevant material.

All told, this petition fails and is dismissed.