1984 (1) TMI 180 - HC - Indian Laws

Delhi High Court invalidates detention of Afghan nationals for lack of understanding grounds, emphasizes effective representation

The Delhi High Court ruled in two petitions concerning the detention of Afghan nationals under the Prevention of Smuggling Activities Act. The court found ... Detention Issues:Challenge to detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.Compliance with Article 22(5) of the Constitution for effective representation.Validity of detention due to non-compliance with Article 22(5).Analysis:The judgment by the Delhi High Court involved two petitions under Article 226 of the Constitution of India concerning the detention of two Afghan nationals under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The petitioners were detained to prevent activities prejudicial to foreign exchange augmentation. The grounds of detention were served in English and translated into Urdu, but the detenus claimed they did not fully understand the language. Additional affidavits were filed to show Urdu translations were provided, but doubts remained about whether the detenus truly understood the grounds of detention.The main issue raised was the compliance with Article 22(5) of the Constitution for effective representation. The petitioners argued that the detenus must not only understand the grounds of detention but also have the translated version in a language they comprehend to make an effective representation. The court emphasized the mandatory nature of Article 22(5) requirements, stating that mere translation once would not suffice. The absence of an affidavit from the person who translated the grounds of detention was also highlighted as a deficiency in the process.The court rejected the argument that explaining the grounds of detention in Peshto language was sufficient compliance with Article 22(5). It was noted that the detaining authority failed to prove that the detenus understood Urdu, given their Afghan nationality and lack of high education. The court also dismissed the claim that a fellow prisoner translated the grounds, as no supporting affidavit was provided. The judgment emphasized the importance of detenus being able to read and understand the grounds of detention multiple times to make an effective representation, which necessitates providing translations in their known language.Ultimately, the court held that the detention was vitiated due to non-compliance with Article 22(5) and ordered the release of the petitioners unless detained under a valid order. The judgment underscored the significance of upholding the right to make an effective representation, as mandated by Article 22(5) of the Constitution, for individuals held without trial in a civilized society.