Delhi High Court
Poly Saha vs Uoi & Anr on 5 August, 2010
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05.08.2010
+ WP(CRL) 956/2010
POLY SAHA ... Petitioner
- versus -
UOI & ANR ... Respondent
Advocates who appeared in this case:-
For the Petitioner : Mr Pradeep Jain with Mr A. Samad, Mr S. Bhattacharyya,
Mr Shubhankar Jha, Mr Vishal Thakur and Mr Abhas Mishra
For the Respondent : Mr Atul Nanda
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition has been filed challenging the order of
detention bearing F. No. 673/05/2010-CUS VIII dated 05.04.2010 passed
against the detenu (Sanjay Saha @ Sona Bhai), who is the petitioner‟s
husband, under Section 3(1)(iii) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to
as the „COFEPOSA Act‟).
2. The detention order, which was made on 05.04.2010, was served
on the detenu on 09.04.2010. Thereafter, the Advisory Board submitted its
report after hearing the counsel for the detenu as well as the representatives
of the Central Government. Subsequent thereto, by an order dated
14.06.2010 issued by the Ministry of Finance, Department of Revenue,
Central Economic Intelligence Bureau, Government of India, the Central
Government, in exercise of power conferred under Section 8(f) of the
COFEPOSA Act, confirmed the aforesaid detention order and further
directed under Section 10 thereof that the detenu (Sanjay Saha @ Sona
Bhai) be detained for a period of one year from the date of his detention,
that is, from 09.04.2010.
3. The only point urged by the learned counsel for the petitioner
before us was that the detention has become illegal on account of non-
supply of relied upon documents within the stipulated period of five days, as
indicated by the provisions of Article 22(5) of the Constitution of India read
with Section 3(3) of the COFEPOSA Act. He submitted that Bengali
translations of the two relied upon documents were supplied to the detenu
only on 01.06.2010, that is, after a period of one month and twenty one days
from the date of the detention. The two documents which he referred to
were:-
(a) Bengali translation of the statement of Raj Kishore
Yadav dated 14.10.2009, shown at serial No. 4 of the
relied upon documents;
(b) Bengali translation of the statement of Anil Yadav dated
18.12.2009, shown at serial No. 20 of the relied upon
documents.
4. The learned counsel for the petitioner drew our attention to the
counter-affidavit filed on behalf of the respondents and in particular to the
portion which dealt with the reply to ground „B‟ taken by the petitioner. In
the counter-affidavit it is admitted as under:-
"On scrutiny it was found that Bengali translations of only
two statements i.e statement of Rajkishore Yadav dated
14.10.2009 and statement of Anil Yadav dated 18.12.2009
were left out inadvertently which were supplied to the
detenu on 01.06.2010 as admitted by the detenu in his
representation."
5. We may also point out that in ground „B‟ of the petition the
petitioner had categorically stated that the detenu can understand Bengali
language only. It was also pointed out that the detenu cannot read or write
or understand the English language. This fact has not been specifically
controverted in the counter-affidavit while replying to ground „B‟. It is,
therefore, clear that the Bengali translations of the above mentioned relied
upon documents were not supplied to the detenu within the stipulated period
of five days nor were they supplied during the extended period of 15 days,
which is permitted under exceptional circumstances, to be recorded in
writing. In any event, it is not the case of either party that the said two
documents were even supplied within 15 days.
6. The learned counsel for the petitioner placed reliance on the
decisions of the Supreme Court in Ibrahim Ahmad Batti v. State of
Gujarat: (1982) 3 SCC 440 and Thahira Haris v. Government of
Karnataka: (2009) 11 SCC 438 to submit that the non-supply of relied upon
documents along with the grounds of detention within the period stipulated
in Section 3(3) of the COFEPOSA Act would be fatal to the detention and
the detention order would be liable to be quashed on the ground of its
having become illegal.
7. In Ibrahim Ahmad Batti (supra) the Supreme Court observed as
follows:-
"10. Two propositions having a bearing on the points at issue
in the case before us, clearly merge from the aforesaid resume
of decided cases: (a) all documents, statements and other
materials incorporated in the grounds by reference and which
have influenced the mind of the detaining authority in arriving
at the requisite subjective satisfaction must be furnished to the
detenu along with the grounds or in any event not later than
five days ordinarily and in the exceptional circumstances and
for reasons to be recorded in writing not later than 15 days
from the date of his detention and (b) all such material must be
furnished to him in a script or language which he understands
and failure to do either of the two things would amount to a
breach of the two duties cast on the detaining authority under
Article 22(5) of the Constitution.............."
This is reinforced in Thahira Haris (supra), where the Supreme Court held
as under:-
"29. There were several grounds on which the detention of the
detenu was challenged in these appeals but it is not necessary
to refer to all the grounds since on the ground of not supplying
the relied upon document, continued detention of the detenu
becomes illegal and the detention order has to be quashed on
that ground alone.
30. Our Constitution provides adequate safeguards under
Clauses (5) and (6) of Article 22 to the detenu who has been
detained in pursuance of the order made under any law
providing for preventive detention. He has right to be supplied
copies of all documents, statements and other materials relied
upon in the grounds of detention without any delay. The
predominant object of communicating the grounds of detention
is to enable the detenu at the earliest opportunity to make
effective and meaningful representation against his detention.
31. On proper construction of Clause (5) of Article 22 read
with Section 3(3) of the COFEPOSA Act, it is imperative for
valid continuance of detention that the detenu must be supplied
with all documents, statements and other materials relied upon
in the grounds of detention."
8. The only plea taken by the learned counsel for the respondent
was that this grievance was not made before the Advisory Board, which
submitted its report on 02.06.2010. We do not see how that would make
any difference because the Supreme Court decisions on the above point are
clear and categorical that unless and until all the documents, which are
relied upon, are supplied to the detenu within the stipulated period, it would
obstruct the detenu‟s right to make an effective representation and when
there is such an obstruction, the detention itself become illegal.
9. For the aforesaid reasons, the writ petition is allowed. The
detention order is quashed and the detenu is liable to be released forthwith,
provided he is not in custody in any other case. The detenu is presently
lodged at Presidency Correctional Home, Kolkata, West Bengal.
BADAR DURREZ AHMED, J
V.K. JAIN, J
AUGUST 05, 2010
SR
