Preventive detention and changing foreign exchange law: detention failed after the statutory basis was repealed and replaced.

Tamil translations of a preventive detention order were found sufficient because Article 22(5) requires a true free translation conveying the substance, not a literal word-for-word version; the challenge for defective translation failed. The alleged delay in disposing of the detenu's representation was also treated as explained, since part of the delay resulted from the detenu's own request and the later period was satisfactorily accounted for. However, the repeal of FERA and its replacement by FEMA materially altered the foreign exchange law regime, and the Court held that the preventive detention basis under COFEPOSA could not survive that legal change. The detention order was therefore unsustainable.

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Issues: (i) Whether the Tamil translations of the detention order and grounds of detention were so defective as to prevent the detenu from making an effective representation under Article 22(5) of the Constitution of India; (ii) whether the disposal of the detenu's representation suffered from unexplained delay; and (iii) whether the repeal of the Foreign Exchange Regulation Act, 1973 and its replacement by the Foreign Exchange Management Act, 1999 destroyed the basis of the detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Issue (i): Whether the Tamil translations of the detention order and grounds of detention were so defective as to prevent the detenu from making an effective representation under Article 22(5) of the Constitution of India.

Analysis: The translations were tested against the original English detention order and grounds. The Court held that a literal word-for-word translation is not required; what is required is a true free translation conveying the real purport of the order. The expressions used in Tamil were found to convey the substance of the detention order and the grounds, including the reference to the detenu's tendency and likelihood to continue prejudicial activity, without introducing a materially different meaning.

Conclusion: The translations were held to be proper and the challenge based on defective translation failed.

Issue (ii): Whether the disposal of the detenu's representation suffered from unexplained delay.

Analysis: The representation had been addressed in a manner that led the prison authorities to forward all copies to the Advisory Board, and not directly to the detaining or central authorities. The Court found that the delay before receipt by the concerned authorities was attributable to the detenu's own request and not to official inaction. The later period, after receipt by the authorities, was also satisfactorily explained.

Conclusion: The delay in disposal was held to be explained and no invalidity of detention arose on this ground.

Issue (iii): Whether the repeal of the Foreign Exchange Regulation Act, 1973 and its replacement by the Foreign Exchange Management Act, 1999 destroyed the basis of the detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Analysis: The detention was founded on a need to prevent future conduct prejudicial to the augmentation of foreign exchange, in a regime then governed by FERA. The Court held that the regulatory and penal landscape changed materially with the repeal of FERA and enactment of FEMA, and that the very foundation of the preventive detention ceased to exist in the changed legal setting. The earlier detention could not be sustained on the basis of a repealed regime.

Conclusion: The detention order was held to be unsustainable on this ground.

Final Conclusion: The petition succeeded because the preventive detention could not survive the change in the foreign exchange law regime, and the detention order was quashed.

Ratio Decidendi: Where preventive detention is founded on a statutory and regulatory regime that has been repealed and materially replaced, the detention cannot continue unless the new legal framework independently sustains the preventive basis; translations and representation procedure must also preserve the detenu's effective right under Article 22(5).

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