Delhi High Court
Jasvinder Kaur vs Union Of India Through Its ... on 18 February, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18thFebruary, 2022
+ W.P.(CRL) 1388/2021 & CRL. M.A. No.11699/2021
JASVINDER KAUR ..... Petitioner
Through: Mr. Arjun Dewan, Advocate with
Mr. Shahryar Khan, Advocate.
versus
UNION OF INDIA THROUGH ITS SECRETARY
MINISTRY OF FINANCE DEPARTMENT OF REVENUE
AND ORS.
..... Respondents
Through: Mr. Dhruv Pande, Advocate for
respondent Nos.1 to 3.
Mr. Satish Kumar, Sr. Government
Standing Counsel for respondent
No.6/ Customs.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
The petitioner Jasvinder Kaur has filed the present writ
petition under Article 226 of the Constitution of India read with
section 482 of the Code of Criminal Procedure, 1973 (CrPC)
seeking a direction in the nature of habeas corpus for the
production of her son, Harmeet Singh, who the petitioner alleges,
has been illegally detained by the respondents. After amendment of
the array of party-respondents, the respondents in the proceedings
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are the Union of India, Through Its Secretary, Ministry of Finance,
Department of Revenue (Central Economic Intelligence Bureau);
Joint Secretary (COFEPOSA); and The Commissioner of Customs,
Terminal-3, IGI Airport, New Delhi, which parties are hereinafter
collectively referred to as the 'Ministry' or the 'respondents'.
2. The petitioner further seeks quashing of detention order bearing
No. PD-12002/05/2020-COFEPOSA dated 05.06.2020 issued
under section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act)
by the Joint Secretary COFEPOSA (the "impugned detention
order") under which the petitioner's son is in preventive detention
with The Superintendent, Tihar Jail, New Delhi, which detention
order also stands confirmed by the Department of Revenue,
Ministry of Finance vidé order dated 11.08.2021.
3. As per the record, the Ministry's case against the petitioner's son is
this :
(i) A specific intelligence input is stated to have been received
on 01/02.02.2019 by the Assistant Commissioner, Green
Channel (Shift-D) at the Indira Gandhi International Airport
(IGI Airport) about smuggling of drones, goods, cigarettes
and certain other items in commercial quantity by six
passengers on different flights. Pursuant to this intelligence
input, customs officers along with officers of the Directorate
of Revenue Intelligence (DRI) approached Exit Gate No. 5
of the Arrival Hall, IGI Airport to intercept eight passengers,
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including the petitioner herself; and upon conducting search
of their baggage, certain objectionable goods were found in
the baggage of two persons, Gagan Jot Singh and Gurpreet
Singh.
(ii) Subsequently, on information allegedly given by Gagan Jot
Singh, on the intervening night of 01.02.2019 and
02.02.2019, at around 1:30 a.m. the petitioner's son,
Harmeet Singh who arrived at IGI Airport from Dubai via
Kuwait Airways- Flight No. KU381 was also apprehended
for carrying contraband items and goods, along with three
other persons, by name Sumit Verma, Sourabh Chopra and
Amarjeet Singh.
(iii) Notice under section 102 of the Customs Act, 1962
(Customs Act) was served upon Harmeet Singh on
02.02.2019; officers of the Department of Revenue, Ministry
of Finance recorded his statement under section 108 of the
Customs Act, which is stated to have been self-incriminating
in nature. Importantly, it is the case of the respondents that
the statement of Harmeet Singh was typed in the English
language and was stated to have been explained to him in the
vernacular by an interpreter.
(iv) As per the impugned detention order, upon search of
Harmeet Singh's bags the following items were found :
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i. 238 dandas of Benson & Hedges Cigarettes;
ii. Boarding Pass dated 01.02.2019 for Flight No.
KU381 (Kuwait to Delhi) with seat No. 2H;
iii. Indian Passport No. Z5317414 issued on 16.01.2019;
iv. One Vivo Y53 mobile with Vodafone Sim No.
8860253525;
v. UAE Dirham 300/-
vi. 02 bottles of Chivas Regal 12-YO whiskey;
vii.Personal effects, old and used.
(v) The Ministry says that several other articles and goods,
including drones and cameras were recovered from the other
persons apprehended along with Harmeet Singh; and that the
total value of the goods seized and confiscated under
sections 110 and 111 of the Customs Act is stated to be
about Rs. 1,09,74,500/- (Rupees One Crore Nine Lacs
Seventy-Four Thousand Five Hundred Only);
(vi) Harmeet Singh was arrested on 03.02.2019, whereupon he
was produced before the learned Metropolitan Magistrate,
Patiala House Courts on 04.02.2019 along with other co-
accused persons;
(vii) Harmeet Singh is stated to have preferred a bail application
before the learned Metropolitan Magistrate, Patiala House
Courts on 04.02.2019, which was dismissed; and he was
remanded to judicial custody till 05.02.2019 along with other
co-accused persons. Harmeet Singh's judicial custody was
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subsequently extended from time-to-time; and the last
extension was granted till 06.04.2019 vidé order dated
02.04.2019 made by the learned Chief Metropolitan
Magistrate;
(viii) In the meantime, on 05.02.2019 Harmeet Singh as well as
other accused persons filed for retraction of their statements
dated 02.02.2019 recorded under section 108 of the Customs
Act on the ground that they were recorded under duress and
coercion; and these statements are stated to have been
retracted on 11.02.2019;
(ix) A second bail application was moved by Harmeet Singh on
14.02.2019 before the learned Chief Metropolitan
Magistrate, Patiala House Courts. Another application was
filed on 16.02.2019 to preserve the airport CCTV footage of
the intervening night of 01.02.2019 and 02.02.2019 as also
seeking transfer of investigation of the case to the CBI. The
second bail application was dismissed on 20.02.2019and the
application seeking to preserve the CCTV footage was
dismissed on 16.02.2019. A similar representation seeking to
preserve the CCTV footage and transfer investigation of the
case, was also made on behalf of the detenu to the Finance
Minister;
(x) On 25.02.2019 the Office of the Commissioner of Customs
placed before the Joint Secretary (COFEPOSA) the (first)
proposal for detention inter-alia of Harmeet Singh,
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enclosing a brief of the evidence gathered by them,
consequent to which Harmeet Singh was eventually detained
on 24.05.2021 under detention order dated 05.06.2020;
(xi) Another bail application was preferred by Harmeet Singh
before the learned Additional Sessions Judge, Patiala House
Courts on 27.02.2019, which was also dismissed on
19.03.2019;
(xii) On yet another bail application being preferred before the
learned Chief Metropolitan Magistrate, Patiala House Courts
on 04.04.2019, Harmeet Singh was released on statutory bail
on 06.04.2019since the investigating officer had failed to file
the chargesheet/complaint within the prescribed period under
section 167(2) CrPC;
(xiii) On 22.04.2019 Harmeet Singh was summonsed to appear
before the Air Customs Superintendent to tender his
statement under section 108 Customs Act and to seek the
password of his cell-phone. He was summonsed again on
31.01.2020 under section 108 Customs Act again, to
confront him with allegedly incriminating data recovered
from his cell-phone in the course of its forensic examination;
(xiv) The impugned detention order came to be passed by the
Detaining Authority on 05.06.2020;
(xv) On 10.07.2020 Harmeet Singh made a representation to the
Secretary, Ministry of Finance; the Joint Secretary
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(COFEPOSA) and to the Chairperson, COFEPOSA
Advisory Board, Delhi High Court, at the pre-execution
stage, for quashing the detention order, which representation
was rejected by the Ministry on 05.10.2020;
(xvi) A challenge was made to the impugned detention order at
the pre-execution stage vidé writ petition W.P.(CRL.)
No.1166/2020, which writ petition was dismissed vidé
judgment dated 16.02.2021. A Special Leave Petition
preferred against the dismissal of that writ petition, was also
dismissed by the Hon'ble Supreme Court vidé order dated
19.04.2021 made in SLP (Crl.) No. 3108/2021;
(xvii) Action under section 7(1)(b) of the COFEPOSA Act is
stated to have been initiated against Harmeet Singh on
07.08.2020; and he was finally detained on 24.05.2021. The
impugned detention order along with the grounds of
detention in the English language are stated to have been
served upon Harmeet Singh on 24/25.05.2021;
(xviii) On 24.06.2021 Harmeet Singh made a written request for
being provided a copy of the detention order along with the
grounds of detention in either Hindi or Punjabi language,
since he said he was unable to understand English copies of
the same. This request was forwarded by The
Superintendent, Tihar Jail to the Deputy Secretary,
Government of India on 26.06.2021. The said letter was
treated as a representation; which was stated to have been
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sent to the Joint Registrar (COFEPOSA), Delhi High Court,
along with the Ministry's para-wise comments thereon, for
being placed before the Central Advisory Board; which
conducted its meeting on 30.07.2021 via video-
conferencing, at which Harmeet Singh is also stated to have
been present along with his legal representative. Harmeet
Singh's request/representation was rejected by the Advisory
Board vidé memorandum dated 12.08.2021, the Advisory
Board having found that there existed sufficient grounds for
Harmeet Singh's detention;
(xix) The impugned detention order dated 05.06.2020 was
confirmed by the Ministry vidé order dated 11.08.2021.
Grounds of Challenge to the Detention Order
4. In the present proceedings, the impugned detention order is
challenged principally on the following grounds, the details of
which are discussed later in this judgment :
(i) That the impugned detention order violates Articles 21 and
22(5) of the Constitution of India, contending that the order
is vitiated for non-compliance of the procedure established
by law;
(ii) That the impugned detention order is vitiated since Article
22(5) of the Constitution requires the detaining authority to
"communicate" the grounds of detention to a detenu, which
has been interpreted by the Hon'ble Supreme Court to mean
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that such communication must be in a language known to the
detenu, which was not done in this case. For that reason, the
detenu has been unable to make an effective representation
against his detention, which he has a right to do under
Article 22(5);
(iii) That the language used in the impugned detention order is
".... hyper technical language which the Petitioners (sic) son
is not able to understand ... ";
(iv) That the detenu has only studied till class 10, after which he
dropped-out of school. Besides, the detenu has studied at a
Hindi medium school till class 5; and even in later classes in
his second school, the medium of instruction was Hindi. The
detenu therefore, barely understands English and could not
make sense of the voluminous detention order comprising
some 717 pages;
(v) That the detenu does not understand English is evident inter-
alia from the fact that the statements he made on 22.04.2019
and 31.01.2020 under section 108 of the Customs Act were
all in Hindi.
Submissions of Counsel
5. To make good the principal objection as regards the language of
communication of the impugned detention order, Mr. Arjun
Dewan, learned counsel appearing for the petitioner, has drawn the
attention of this court to the following aspects and circumstances :
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(i) Each time Harmeet Singh had to record a detailed statement,
it was recorded entirely in Hindi. In this behalf attention is
drawn to statements dated 22.04.2019 and 31.01.2020
recorded by Harmeet Singh under section 108 Customs Act,
which have been recorded entirely in Hindi. This, counsel
submits, is because the languages in which Harmeet Singh is
proficient are only Hindi and Punjabi, notwithstanding the
fact that he is able to write a few words or a short sentence in
English or that he can sign in English;
(ii) The mere fact that Harmeet Singh recorded that "I have no
objection if my personal and baggage search is conducted
by any customs officer" in English on the notice served upon
him under section 102 Customs Act on 02.02.2019 and also
signed the same in English, is not evidence of the fact that
Harmeet Singh knew English to any extent;
(iii) Though Harmeet Singh signed on panchnama dated
02.02.2019, on his seizure memo dated 02.02.2019 as also
on statement dated 02.02.2019 recorded under section 108
Customs Act in English, again does not mean that he
understands English with any level of proficiency. It is
pointed-out that in statement dated 02.02.2019 recorded
under section 108 Customs Act, Harmeet Singh specifically
wrote that "I can read, write and understand and speak
Hindi/English and Punjabi languages". By this, it is evident
that the principal language with which Harmeet Singh is
familiar is not English;
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(iv) It will be seen from his jamatalashi dated 03.02.2019 that on
05.09.2019 Harmeet Singh subscribed a handwritten note
upon it in Hindi, in acknowledgement of having received
back certain personal effects and only signed it in English.
Same was the position with panchnama dated 12.06.2019, in
which Harmeet Singh made a noting in Hindi
acknowledging receipt of a copy of that document and only
appended his signatures in English;
(v) Merely because Harmeet Singh has submitted and signed his
retraction statement in English, does not imply that he
understands English well enough for him to be able to make
a representation against the grounds of detention as he is
entitled to do under Article 22(5) of the Constitution. The
retraction statement was written in English by Gurpreet
Singh and was explained to Harmeet Singh in the vernacular
before he signed it;
(vi) In particular, in his communication dated 24.06.2021,
Harmeet Singh specifically says that he had requested for a
Hindi or Punjabi translation of the documents and was
assured he would be given such translation, which however
was not done; and that he later learned that he could make a
written request in that behalf. It is submitted that especially
since Harmeet Singh has no right to counsel at that stage, his
ability to put-up a defence depended entirely on his properly
understanding the grounds for his detention, which he was
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unable to do since the grounds were not supplied to him in a
language that he could understand.
6. On the other hand, Mr. Amit Mahajan, learned CGSC appearing
for respondents Nos. 1 to 3; and Mr. Satish Kumar, learned Senior
Government Standing Counsel appearing for respondent No. 6,
have stressed only upon one aspect, namely that Harmeet Singh is
proficient enough in English to be able to understand the grounds
of detention. Counsel submit that, as is evident from his school
leaving certificate dated 29.08.1998, issued by the Akali Baba
Phoola Singh Khalsa Senior Secondary School, Harmeet Singh has
studied upto class 10 (although he failed at that level) and since the
school was affiliated to the Central Board of Secondary Education,
he would have studied English as a language, even if the medium
of instruction was not English. Furthermore, it is submitted that by
the very acts for which Harmeet Singh has been detained, it is
evident he was a frequent traveler abroad, which means he must
necessarily have more than a working knowledge of the English
language since otherwise, he could not have travelled abroad. In
essence, the submission is that all that is required is a working
knowledge of the English language, which is evident from all the
foregoing factors; and especially from the fact that Harmeet Singh
can write and also sign in English.
Judicial Precedents Relied Upon by Parties
7. In support of her contentions, the petitioner has relied upon the
following judicial precedents :
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(i) Shri Lallubhai Jogibhai Patel vs. Union of India &
Others : for the proposition that the purpose of
communicating the grounds of detention is not served by
mere verbal explanation in the language that the detenu
understands; and a written translation in that language must
be provided;
(ii) Powanammal vs. State of T.N. & Another 2 : for the
proposition that non-supply of the detention order in a
language that the detenu understands impairs the detenu's
right to make an effective representation;
(iii) Chaju Ram vs. The State of Jammu & Kashmir3: for the
proposition that handing over the grounds of detection to
detenus in an alien language frustrates their right to make an
effective representation;
(iv) Haribandhu Das vs. District Magistrate, Cuttack &
Another4: for the proposition that if a detenu is served with
the order and grounds of detention in the English language,
which language the detenu does not understand, it would
constitute a violation of the guarantee under Article 22(5) of
the Constitution;
(1981) 2 SCC 427; para 20
(1999) 2 SCC 413; paras 4, 6, 7, 8, 10, 15 & 16
(1970) 1 SCC 536; paras 9 & 10
AIR 1969 SC 43; paras 5, 9, 10, 11 & 12
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(v) Harikisan vs. State of Maharashtra5: to emphasise that the
meaning of the word 'communication' is to impart to the
detenu all the grounds on which the detention order is
passed;
8. The respondents on their part have relied upon the following
judicial precedents :
(i) Prakash Chandra Mehta vs. Commissioner and Secretary,
Government of Kerela & Ors 6 : for the proposition that
determination of whether grounds of detention have been
adequately communicated, depends on the facts and
circumstances of each case;
(ii) Kubic Darusz vs. Union of India & Ors7: to emphasise that a
working knowledge of the English language enabling the
detenu to understand the grounds of detention would be
enough for making a representation;
(iii) Sumita Dey Bhattacharya vs. Union of India &Anr.8: for
the proposition that if the detenu can sign and write an
endorsement in the English language, he would have a
workable knowledge of the language.
(1962) Supp 2 SCR 918; paras 3, 4, 5, 6, 7 8 & 9
(1985) Supp SCC 144; paras 60, 61, 62, 63, 64 & 65
(1990) 1 SCC 568; paras 10 & 13
(2015) 219 DLT 536; paras 9-20
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Discussion
9. In our view, a discussion on the merits of the present case must
begin by setting-out the constitutional provision from which the
requirement of furnishing to a detenu the grounds for preventive
detention are required to be communicated. Article 22 of the
Constitution reads as under :
"22. Protection against arrest and detention in certain cases.--
(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall
be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate
and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply--
(a) to any person who for the time being is an enemy
alien; or
(b) to any person who is arrested or detained under any
law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the
detention of a person for a longer period than three months
unless --
(a) an Advisory Board consisting of persons who are,
or have been, or are qualified to be appointed as, Judges
of a High Court has reported before the expiration of the
said period of three months that there is in its opinion
sufficient cause for such detention:
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Provided that nothing in this sub-clause shall authorise
the detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-
clause (b) of clause (7); or
(b) such person is detained in accordance with the
provisions of any law made by Parliament under sub-
clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order
made under any law providing for preventive detention, the
authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity of
making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any
such order as is referred to in that clause to disclose facts which
such authority considers to be against the public interest to
disclose.
(7) Parliament may by law prescribe --
(a) the circumstances under which, and the class or
classes of cases in which, a person may be detained for a
period longer than three months under any law providing
for preventive detention without obtaining the opinion of
an Advisory Board in accordance with the provisions of
sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any
class or classes of cases be detained under any law
providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in
an inquiry under sub-clause (a) of clause (4)."
(emphasis supplied)
10. In the factual backdrop of the present case, the petitioner as well as
the respondents have premised their contentions essentially on
Article 22(5), namely the constitutional mandate for
communicating the grounds of detention to a detenu and affording
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him the opportunity of making a representation against a
preventive detention order. While several judicial precedents have
been cited by the petitioner on the law on communicating the
grounds of detention as aforesaid, in our view, the legal position is
best crystalized in the following decisions:
10.1 In Harikisan (supra) the Hon'ble Supreme Court took
the view that since the High Court had not returned a finding
that the detenu knew enough English, the High Court had
committed an error in holding that only because English was
the official language of the State of Maharashtra, supplying
the grounds of detention in English language was sufficient
compliance of the mandate of Article 22(5). The Hon'ble
Supreme Court accordingly held as under :
"7. ... To a person, who is not conversant with the English
language, service of the Order and the grounds of
detention in English, with their oral translation or
explanation by the police officer serving them does not
fulfil the requirements of the law. As has been explained
by this Court in the case of State of Bombay v. Atma Ram
Sridhar Vaidya clause (5) of Article 22 requires that the
grounds of his detention should be made available to the
detenue as soon as may be, and that the earliest
opportunity of making a representation against the Order
should also be afforded to him. In order that the detenue
should have that opportunity, it is not sufficient that he
has been physically delivered the means of knowledge
with which to make his representation. In order that the
detenue should be in a position effectively to make his
representation against the Order, he should have
knowledge of the grounds of detention, which are in the
nature of the charge against him setting out the kinds of
prejudicial acts which the authorities attribute to him.
Communication, in this context, must, therefore, mean
imparting to the detenue sufficient knowledge of all the
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grounds on which the Order of Detention is based. In
this case the grounds are several and are based on
numerous speeches said to have been made by the
appellant himself on different occasions and different
dates. Naturally, therefore, any oral translation or
explanation given by the police officer serving those on
the detenue would not amount to communicating the
grounds. Communication, in this context, must mean
bringing home to the detenue effective knowledge of the
facts and circumstances on which the Order of Detention
is based."
(emphasis supplied)
10.2 Relying upon the decision in Harikisan (supra) and in
the context of Article 22(5), the Hon'ble Supreme Court
further explained the meaning of the word 'communicate' in
Lallubhai (supra) in the following words :
"20. It is an admitted position that the detenu does not
know English. The grounds of detention, which were
served on the detenu, have been drawn up in English. It is
true that Shri C.L. Antali, Police Inspector, who served
the grounds of detention on the detenu, has filed an
affidavit stating that he had fully explained the grounds of
detention in Gujrati to the detenu. But, that is not a
sufficient compliance with the mandate of Article 22 (5)
of the Constitution, which requires that the grounds of
detention must be "communicated" to the detenu.
"Communicate" is a strong word. It means that
sufficient knowledge of the basic facts constituting the
"grounds" should be imparted effectively and fully to
the detenu in writing in a language which he
understands. The whole purpose of communicating the
"ground" to the detenu is to enable him to make a
purposeful and effective representation. If the "grounds"
are only verbally explained to the detenu and nothing in
writing is left with him, in a language which he
understands, then that purpose is not served, and the
constitutional mandate in Article 22 (5) is infringed. If
any authority is needed on this point, which is so obvious
from Article 22(5), reference may be made to the
decisions of this Court in Harikisan v. State of
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Maharashtra13 and Hadibandhu Das v. District
Magistrate9"
(emphasis supplied)
10.3 In fact, in a subsequent decision in Powanammal
(supra), the Hon'ble Supreme Court went further to draw a
distinction between a document relied-upon by a detaining
authority in the grounds of detention as contra-distinct from
a document that finds a mere reference in such grounds.
Explaining the aspect of prejudice caused to a detenu, the
Hon'ble Supreme Court said this :
"9. However, this Court has maintained a distinction
between a document which has been relied-upon by the
detaining authority in the grounds of detention and a
document which finds a mere reference in the grounds of
detention. Whereas the non-supply of a copy of the
document relied upon in the grounds of detention has
been held to be fatal to continued detention, the detenu
need not show that any prejudice is caused to him. This
is because the non-supply of such a document would
amount to denial of the right of being communicated the
grounds and of being afforded the opportunity of making
an effective representation against the order. But it
would not be so where the document merely finds a
reference in the order of detention or among the grounds
thereof. In such a case, the detenu's complaint of non-
supply of document has to be supported by prejudice
caused to him in making an effective representation.
What applies to a document would equally apply to
furnishing a translated copy of the document in the
language known to and understood by the detenu,
should the document be in a different language."
(emphasis supplied)
10.4. A very important aspect that came-up in the course of
submissions in this matter, is as to what would be the legal
position if a detenu happened to be illiterate. It transpires
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that this issue has also been dealt with by the Hon'ble
Supreme Court in Chaju Ram (supra), in which the position
of law has been explained as under :
"9. ... The detenu is an illiterate person and it is
absolutely necessary that when we are dealing with a
detenu who cannot read or understand English language
or any language at all that the grounds of detention
should be explained to him as early as possible in the
language he understands so that he can avail himself of
the statutory right of making a representation. To hand
over to him the document written in English and to obtain
his thumb-impression on it in token of his having received
the same does not comply with the requirements of the
law which gives a very valuable right to the detenu to
make a representation which right is frustrated by
handing over to him the grounds of detention in an alien
language. We are therefore compelled to hold in this case
that the requirement of explaining the grounds to the
detenu in his own language was not complied with."
(emphasis supplied)
10.5. Another contention raised on behalf of the Ministry
was that since Harmeet Singh could write a few sentences in
English and could sign in English, that showed he had
sufficient knowledge of the language to be able to understand
the grounds of detention furnished to him in that language.
This aspect was considered by the Hon'ble Supreme Court
in its decision in Nainmal Partap Mal Shah vs. Union Of
India And Ors 9 ,where an Hon'ble Single Judge of the
(1980) 4 SCC 427
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Hon'ble Supreme Court sitting as Vacation Bench had this to
say:
"2. Controverting this allegation, the Under-Secretary to
the Government of India stated that the grounds were
explained to the detenu by the prison authorities. In the
affidavit the name of the authority concerned or the
designation is not mentioned. Nor is there any affidavit
by the person who is stated to have explained the contents
of the grounds to the detenu. The Under-Secretary further
suggested that as the detenu had signed number of
documents in English, it must be presumed that he was
fully conversant with English. This is an argument
which is based on pure speculation when the detenu has
expressly stated that he did not know English. Merely
because he may have signed some documents it cannot
be presumed, in absence of cogent material, that he had
a working knowledge of English. It is also not in dispute
that a translated script of the grounds were (sic, not)
supplied to the detenu at the time when the grounds were
served on him. This is undoubtedly an essential
requirement, as held by this Court in Hadibandhu Das v.
District Magistrate [AIR 1969 SC 43 : (1969) 1 SCR 227
: 1969 Cri LJ 274]. In these circumstances, therefore,
there has been a clear violation of the constitutional
provisions of Article 22(5) so as to vitiate the order of
detention. The petition is, therefore, allowed, the
continued detention of the detenu being invalid, he is
directed to be released forthwith."
(emphasis supplied)
10.6 A view taken by a Coordinate Bench of the Hon'ble
Madras High Court in Daku Devi vs. State of Tamil
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Nadu 10 is also, in our opinion, the correct perspective as
regards a person who has some sketchy knowledge of a
certain language, when it holds that :
"7. From the grounds of detention itself, it is apparent
that the detenu was not conversant in English. As a
matter of fact, the statement of the detenu, on the basis
of which the grounds of detention was passed, was in
Hindi. Such statement also indicates that the detenu does
not know how to write English. The detenu himself had
made a representation indicating that he does not know
English and Hindi translation of several documents
relied upon by the detaining authority should be
furnished."
*****
"13. In the present case, as already indicated, the
materials on record indicate that the detenu was not
conversant in English, even though he could sign in
English. Even if a person is able to sign in English or
write few letters in English, that does not mean that
such person is "conversant with the language". Even if
a person may read something and he is in a position to
write something, yet he may not be in a position to
effectively understand the contents of documents
written. In the present case, the detenu has specifically
asked for translation of English documents in Hindi. It is
not disputed that the documents were relied upon by the
detaining authority to come to a conclusion that there is
necessity to detain the person under preventive detention.
The authorities have rejected the request of the detenu on
the pretext that those documents were in standardised
form."
(emphasis supplied)
10.7. Therefore, the Hon'ble Supreme Court has consistently
emphasised the absolute necessity of furnishing grounds of
detention in a language the detenu understands, holding that
Judgment dated 21.09.2004 in H.C.P. No. 590 of 2004 (Madras HC)
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it is purely speculative and no answer to say that merely
because a detenu has signed some documents in English, he
had working knowledge of the language to answer the
requirements of Article 22(5).
11. Insofar as the contentions raised by the Ministry are concerned,
these must be looked at in the context of the judicial precedents
cited by them, which are briefly discussed below :
11.1. The Ministry has drawn the attention of this court to
the decision of the Hon'ble Supreme Court in Prakash
Chandra Mehta (supra). In that case, the Hon'ble Supreme
Court held that the detenu was feigning lack of knowledge of
the English language since the detenu was constantly
accompanied by his son and daughter, who knew English
very well, and since the detenu had filed a mercy petition in
English. This is what the Hon'ble Supreme Court said :
"63. It will be appropriate to deal with the first ground.
Whether the grounds should have been communicated in
the language understood by the detenus ? The
Constitution requires that the grounds must be
communicated. Therefore it must follow as an imperative
that the grounds must be communicated in a language
understood by the person concerned so that he can make
effective representation. Here the definite case of the
petitioner's father is that he does not understand English
or Hindi or Malayalam and does understand only
Gujarati language. The facts revealed that the detenu
Venilal was constantly accompanied and was in the
company of his daughter as well as son -- both of them
knew English very well. The father signed a document in
Gujarati which was written in English which is his mercy
petition in which he completely accepted the guilt of the
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involvement in smuggling. That document dated June 30,
1984 contained, inter alia, a statement "I myself am
surprised to understand what prompted me to involve in
such activity as dealing in imported gold". He further
asked for mercy. There is no rule of law that
commonsense should be put in cold storage while
considering constitutional provisions for safeguards
against misuse of powers by authorities though these
constitutional provisions should be strictly construed.
Bearing this salutary principle in mind and having
regard to the conduct of the detenu -- Venilal Mehta
specially in the mercy petition and other communications,
the version of the detenu Venilal is feigning lack of any
knowledge of English must be judged in the proper
perspective. He was, however, in any event given by June
30, 1984 the Hindi translation of the grounds of which he
claimed ignorance. The gist of the annexures which were
given in Malayalam language had been stated in the
grounds. That he does not know anything except Gujarati
is merely the ipse dixit of Venilal Mehta and is not the
last word and the Court is not denuded of its powers to
examine the truth. He goes to the extent that he signed the
mercy petition not knowing the contents, not
understanding the same merely because his wife sent it
though he was sixty years old and he was in business and
he was writing at a time when he was under arrest, his
room had been searched, gold biscuits had been
recovered from him. Court is not the place where one can
sell all tales. The detaining authority came to the
conclusion that he knew both Hindi and English. It has
been stated so in the affidavit filed on behalf of the
respondent. We are of the opinion that the detenu Venilal
Mehta was merely feigning ignorance of English."
*****
"65. The principle is well settled. But in this case it has to
be borne in mind that the grounds were given on June 25,
1984 following the search and seizure of gold biscuits
from his room in the hotel in his presence and in the
background of the mercy petition as we have indicated
and he was in constant touch with his daughter and sons
and there is no evidence that these people did not know
Hindi or English. Indeed they knew English as well as
Hindi. It is difficult to accept the position that in the
peculiar facts of this case, the grounds were not
communicated in the sense the grounds of detention were
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not conveyed to the detenu Venilal. Whether grounds
were communicated or not depends upon the facts and
circumstances of each case."
(emphasis supplied)
11.2. The Ministry has also relied upon the decision of the
Hon'ble Supreme Court in Kubic Darusz (supra), where the
detenu was a Polish national and had challenged the
detention order furnished to him on the ground that he did
not know English :
"9. While it is the settled law that the detention order, the
grounds of detention and the documents referred to and
relied on are to be communicated to the detenu in a
language understood by him so that he could make
effective representation against his detention, the
question arises as to whether the courts have necessarily
to accept what is stated by the detenu or is it permissible
for the court to consider the facts and circumstances of
the case so as to have a reasonable view as to the
detenu's knowledge of the language in which the ground
of detention were served, particularly in a case where the
detenu is a foreign national. If the detenu's statement is to
be accepted as correct under all circumstances it would
be incumbent on the part of the detaining authority in
each such case to furnish the grounds of detention in the
mother tongue of the detenu which may involve some
delay or difficulty under peculiar circumstances of a
case. On the other hand if it is permissible to ascertain
whether the statement of the detenu in this regard was
correct or not it would involve a subjective
determination. It would, of course, always be safer
course in such cases to furnish translations in the
detenu's own language. We are of the view that it would
be open for the court to consider the facts and the
circumstances of a case to reasonably ascertain whether
the detenu is feigning ignorance of the language or he
has such working knowledge as to understand the
grounds of detention and the contents of the documents
furnished."
(emphasis supplied)
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Conclusions
12. From the foregoing discussion, the legal position as regards the
detaining authority's obligation to communicate to a detenu the
grounds of detention, may be crystallised as follows :
(i) A detenu has a fundamental right under Article 22(5) that
the grounds on which a detention order has been made against him,
be communicated to him as soon as may be; and that he be
afforded an opportunity of making a representation against the
detention order at the earliest;
(ii) Interpreting the scope and operation of this fundamental
right, the Hon'ble Supreme Court has laid down that
'communication', within the meaning of Article 22(5), means
imparting to the detenu sufficient knowledge of the grounds on
which a detention order has been made; so that the detenu is in a
position to effectively make a representation against the order.
More specifically, the Hon'ble Supreme Court has said that oral
explanation or oral translation of the grounds of detention would
not amount to communicating the grounds to a detenu11;
Harikisan (supra); para 7
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(iii) The purpose of Article 22(5) is not served if the grounds of
detention are only verbally explained and nothing in writing is left
with the detenu in a language which he understands12;
(iv) Communicating the grounds of detention effectively and
fully to a detenu implies that the grounds must be furnished to him
in a language which the detenu understands; and if that entails
translation of the grounds to such language, then that is part of the
Constitutional mandate. In fact, the Hon'ble Supreme Court goes
further to say, that it is incumbent that even the documents 'relied-
upon' in the grounds of detention must be supplied to the detenu,
translated into a language the detenu understands; and it is not
necessary for the detenu to even demonstrate prejudice to obtain
translated version of the 'relied-upon' documents. However,
insofar as documents that are only 'referred-to' in a detention order
are concerned, if the detenu complains of non-supply of those
documents or their translations, the detenu must show what
prejudice is caused to him by such non-supply in making an
effective representation13;
(v) For completeness, where a detenu is illiterate, it has been
held by the Hon'ble Supreme Court that the mandate of Article
22(5) would be served if the grounds of detention are explained to
Lallubhai (supra); para 20
Powanammal (supra); paras 8 and 9
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the detenu in a language that he understands, so as to enable him
to avail the fundamental right of making a representation14;
(vi) Merely because a detenu is able to sign or write a few words
in English or any other language, does not mean that the detenu is
'conversant with the language', since the detenu may yet not be
able to effectively understand the contents of the grounds of
detention and the relied-upon documents, to be able to make an
effective representation against the detention order15;
(vii) Whether a detenu is conversant with a given language; or is
merely feigning ignorance; or has sufficient working knowledge to
understand the grounds of detention and the contents of documents
relied-upon, would depend upon the facts and circumstances of
each case, which a court may reasonably ascertain16;
(viii) It would always be the safer course to furnish translations of
the grounds of detention and the documents relied-upon in the
language that a detenu understands.17
13. Applying the foregoing principles to the facts of the present case,
we are persuaded to accept that :
Chaju Ram (supra); para 9
Nainmal Partap (supra); para 2 and Daku Devi (supra); para 13
Prakash Chandra Mehta (supra); para 65 and Kubic Darusz (supra); para 9
Kubic Darusz (supra); para 9
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(i) Merely because Harmeet Singh signed several documents in
English and was able to string a few words into sentences,
evidently on the urging of the concerned officers, is no basis to
impute to him sufficient working knowledge of the English
language. We may add, that the record shows that Harmeet Singh
is a Class X drop-out and that he last attended a Hindi Medium
school, which is not controverted by the Ministry. Although, out of
his three statements recorded under section 108 of the Customs
Act, the first statement dated 02.02.2019 was recorded in English
and two statements dated 22.04.2019 and 31.01.2020 were
recorded in Hindi. Notably, in statement dated 02.02.2019, the
following notation appears:
"This statement of mine is typed on the computer system
available in the Customs Preventive Room on my own request
and explained to me in vernacular by an Interpreter Shri Varun
Kumar, arrange (sic) by Customs Officers on my request, who is
a working as a CSA at IGI Airport, New Delhi. My statement is
running into 03 pages. The behavior of the officers was good and
no harm was done either to me or my belongings /property or my
religious belief."
(emphasis supplied)
What this notation implies is firstly, that there was need for
this statement recorded in English to be explained to the detenu in
the vernacular by an interpreter, which was necessary, obviously
because English is not a language that Harmeet Singh sufficiently
understood; and secondly, the defensive wording of the notation
leaves no doubt that it was made at the behest and instance of
customs officials.
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(ii) All else apart, vidé his communication dated 24.06.2021,
Harmeet Singh specifically requested that a translation of the
grounds of detention be made available to him. He wrote : " .... मै
आप लोगो से विनती करता ह।ूँ वक मझु े ये सारे कागज जेल मे विलिाांए जाए वहन्िी या पांजाबी मे विए जाए। ...
", since he said, he was unable to understand English copies of the
same. In view of such express request, we are unable to understand
as to why the detaining authority did not furnish to Harmeet Singh
the requested documents in a language that he understood; and
stood obstinately on ceremony on the assertion that Harmeet Singh
understood sufficient English to be able to defend himself against
his preventive detention.
(iii) A tail-end argument advanced by the Ministry, to say that
since Harmeet Singh had travelled abroad on multiple occasions,
that was proof positive that he understood sufficient English, is to
be heard only to be rejected.
(iv) In fact, in our opinion, to also best serve the legal interests of
the detaining authority, it should be the preferred course of action
in all cases, that on the mere asking of a detenu, a complete set of
detention order along with the grounds of detention as also all
relied-upon documents, should be furnished to a detenu in the
language in which the detenu requests. It would be preferable that
the detaining authority should take such request in writing from a
detenu and must formally serve upon the detenu the translated
papers as requested expeditiously, against acknowledgement, to
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obviate challenges such as the present one, which we find are
frequently made.
(v) In our view, the above course of action would place the
communication of the detention order on firmer footing; and would
avoid unnecessary legal challenges to it.
14. In view of the foregoing, we hold, that in the present case,
detention order bearing No. PD-12002/05/2020-COFEPOSA dated
05.06.2020 was not served upon the petitioner's son, detenu
Harmeet Singh, in a language that he understands. Accordingly, the
impugned detention order falls foul of the constitutional mandate
contained in Article 22(5) of the Constitution as interpreted by the
Hon'ble Supreme Court in the various decisions referred to above.
15. Detention order bearing No. PD-12002/05/2020-COFEPOSA dated
05.06.2020 is accordingly quashed.
16. As a sequitur, detenu Harmeet Singh, son of the petitioner Ms.
Jasvinder Kaur, is directed to be released from preventive detention
forthwith, unless required in any other case.
17. The present habeas corpus petition is allowed and disposed of with
the above directions.
18. Other pending applications, if any, also stand disposed of.
19. A copy of this judgment be communicated to the detaining
authority as well as to the Jail Superintendent, Central Jail, Tihar,
New Delhi by electronic mail.
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20. A copy of the judgment be made available to learned counsel
appearing for the parties by electronic mail; and be also uploaded
on the website of this court forthwith.
SIDDHARTH MRIDUL, J
ANUP JAIRAM BHAMBHANI, J
FEBRUARY 18, 2022
ds/Ne
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