2022 (2) TMI 841 - HC - Customs

Detention order quashed for language violation under Article 22(5) - Detenu to be released.

Jasvinder Kaur Versus Union Of India Through Its Secretary Ministry Of Finance Department Of Revenue And Ors.

The court quashed the detention order dated 05.06.2020 as it was not served in a language understood by the detenu, violating Article 22(5) of the ... Seeking release from preventive detention - COFEPOSA - Smuggling - Baggage Rules - drones, goods, cigarettes and certain other items in commercial quantity by six passengers on different flights - Illegal detention of respondents - seeking a direction in the nature of habeas corpus for the production of her son - detention order was not served upon the petitioner’s son in a language that he understands - HELD THAT:- 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 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, the legal position is best crystalized in various decisions. Reliance placed in the case of HARIKISAN VERSUS STATE OF MAHARASHTRA [1962 (1) TMI 58 - SUPREME COURT], 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). 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 - 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 detenu - 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 order. 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 - 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 obviate challenges such as the present one, which we find are frequently made. In the present case, detention order 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 - 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. The present habeas corpus petition is allowed and disposed of. Issues Involved1. Alleged illegal detention under COFEPOSA Act.2. Validity of the detention order under Article 22(5) of the Constitution.3. Language of communication of the grounds of detention.4. Compliance with procedural requirements for preventive detention.Detailed Analysis1. Alleged Illegal Detention Under COFEPOSA ActThe petitioner filed a writ petition under Article 226 of the Constitution and Section 482 of the CrPC, seeking a habeas corpus direction for the production of her son, who she alleges has been illegally detained by the respondents. The Ministry's case against the petitioner’s son involves specific intelligence about smuggling activities, leading to his apprehension and subsequent preventive detention under the COFEPOSA Act.2. Validity of the Detention Order Under Article 22(5) of the ConstitutionThe impugned detention order dated 05.06.2020 was confirmed by the Ministry on 11.08.2021. The petitioner challenged the detention order on the grounds that it violates Articles 21 and 22(5) of the Constitution due to non-compliance with the procedure established by law. The court emphasized the constitutional requirement under Article 22(5) that the grounds of detention must be communicated to the detenu in a language he understands to enable him to make an effective representation against the order.3. Language of Communication of the Grounds of DetentionThe petitioner argued that the grounds of detention were not communicated in a language understood by the detenu, thereby violating Article 22(5). The detenu, Harmeet Singh, primarily understands Hindi and Punjabi, and the detention order was served in English. The court noted that merely signing documents in English does not imply sufficient understanding of the language. The court relied on several judicial precedents, including Harikisan vs. State of Maharashtra and Lallubhai Jogibhai Patel vs. Union of India, which emphasize that the grounds of detention must be communicated in a language the detenu understands.4. Compliance with Procedural Requirements for Preventive DetentionThe court discussed the procedural requirements under Article 22(5) and relevant judicial precedents. It concluded that the detaining authority failed to provide the grounds of detention in a language understood by the detenu, thereby violating his fundamental rights. The court observed that the detenu had expressly requested translations of the grounds of detention, which were not provided. This non-compliance rendered the detention order constitutionally invalid.ConclusionThe court held that the detention order dated 05.06.2020 was not served upon the detenu in a language he understands, violating the constitutional mandate of Article 22(5). Consequently, the detention order was quashed, and the detenu was directed to be released from preventive detention unless required in any other case. The habeas corpus petition was allowed and disposed of with these directions.