TaxTMI 
TaxTMI 
1986 (10) TMI 324
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....1974 (hereinafter referred to as "the COFEPOSA Act"). The said Order of detention mentioned that with a view to prevent the detenu from abetting the smuggling goods and also with a view to preventing him from keeping and concealing smuggled goods it was necessary to detain the detenu in the Central Jail at Aguada on the grounds of detention served on him. This Order of detention was served on the detenu on 14th June, 1986. On the same day the detenu was also served with the grounds in support of the said Order of detention. Along with the grounds of detention was served a Marathi translation of the grounds of detention dated 9th June, 1986, as also a list of documents relied on by the detaining Authority. 3. The Additional Secretary to the Government of India, Ministry of Finance, respondent 2 issued a declaration under S. 9(1) of the COFEPOSA Act dt. 11th July, 1986. This declaration was served on the detenu on 18th July, 1986 in Jail. Along with the declaration the detenu was furnished with a Marathi translation of the said declaration. 4. Mr. Karmali, learned counsel appearing on behalf of the detenu has impugned the Order of detention dt. 9th June, 1986, on three grounds.....
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....a view to preventing him from abetting the smuggling of goods and concealing and keeping smuggled goods"; (ii) "likely to abet the smuggling of goods into and through the coast of Goa"; and (iii) "is likely to engage in concealing and keeping smuggled goods in Honda, Sattari Taluka, Goa". According to Mr. Karmali, the Marathi translations supplied to the detenu, both of Para 36 of the grounds as also of the declaration under S. 9(1) of the COFEPOSA Act were so diametrically different that they did not convey to the detenu the correct purport of the original grounds and the declaration. Mr. Karmali argued that failure to give a faithful translation of the grounds and the declaration prevented the detenu from making an effective representation against the Order of detention and on that ground also the Order of detention ought to be quashed. 7. We shall now consider each of the three grounds submitted by Mr. Karmali. Mr. Karmali has drawn our attention to the Order of detention dt. 9th June, 1986. It will be relevant to recite the first para of the said Order of detention for the purpose of appreciating Mr. Karmali's argument. Para 1 of the Order of detention is in the followin....
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....preventing him from (i) and (ii) ........ (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) and (v) ...... it is necessary so to do, make an order directing that such person be detained." 9. According to Mr. Karmali the Order of detention was based on Cl. (ii) of sub-s. (1) of S. 3 of the said Act i.e., for abetting the smuggling of goods and also on Cl. (iii) of sub-s. (1) of S. 3 of the said Act for engaging in concealing or keeping smuggled goods. Mr. Karmali had no dispute with regard to Cl. (ii) which related to the abetting of smuggling of goods. However, with regard to Cl. (iii) Mr. Karmali submitted that the word "engaging" had been omitted and the Order mentioned that the Order had been passed :- "with a view to preventing him from keeping and concealing smuggled goods." 10. We find considerable substance in the argument put forth by Mr. Karmali. Normally we would not be inclined to set aside an order of detention merely on the ground that the detention Order omitted to mention a word here or a word there of the provisions of the COFEPOSA Act. However, as in the instant case, where the word omitted is a word omitted is a word....
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.... be invoked only to prevent a person from engaging in transporting or concealing or keeping smuggled goods. The Detaining Authority must be satisfied that it is necessary to prevent a person from engaging in such objectionable activities. The meaning of the word "engage" as found in the Concise Oxford Dictionary is "hold fast (attention), employ busily". There is thus a lot of difference between the activities of just "keeping" and the "engage in keeping" and the Detaining Authority obviously has not applied its mind. In Ram Manohar Lohia v. State of Bihar, the Supreme Court observed that where a man can be deprived of has liberty under a rule by the simple process of the making of a detention order, he could only be so deprived of if the order is terms of the rules and strict compliance with the letter of the rule is the essence of the matter, and if there is any doubt regarding the observance of the rules, that doubt must be resolved in favour of the detenu .............." 11. We must therefore be guided by the language of the Order and not by the intention of the Detaining Authority. We may also observe that if a Detention Order could be made to prevent a person from keeping ....
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....rder would hold good. Mr. Bhobe urged with some vehemence that if an Order of detention could be saved on the principle of severability then the Court should be inclined in favour of saying the Order of detention in respect of economic offenders Mr. Bhobe relied upon the provisions of S. 5-A of the COFEPOSA Act and contended that the provisions of S. 5-A would apply in the instant case. Section 5-A provided that were a person had been made on two or more grounds, such order of detention could be deemed to have been made separately on each of such grounds and accordingly such order could not be deemed to be invalid or inoperative merely because one or some of the grounds were (i) vague, (ii) non-existent (iii) not relevant, (iv) no connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever. Now it is necessary to point out that S. 5-A related to the grounds furnished to a detenu in support of the Order of detention. It does not apply to an Order of detention. The grounds of detention are supplied to a detenu under sub-s. (3) of S. 3 of the COFEPOSA Act. Sub-sec. (3) of S. 3 of the COFEPOSA Act is in the following terms :- "(3) For the ....
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....f detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred. The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade." An order of detention requires the closest scrutiny of the material on which the decision is formed leaving no room for errors or at least avoidable errors. We therefore hold that the order of detention is not in consonance with Cl. (iii) of sub-s. (1) of S. 3 of the COFEPOSA Act and is therefore vitiated. 15. We shall now deal with the second and third grounds of the submissions made by Mr. Karmali. Mr. Karmali has pointed out what he terms as distortions in the Marathi translations of the grounds and the declaration under S. 9(1) of the said Act, supplied to the detenu. Mr. Bhobe has pointed out that there was abundant material on the record to hold that the detenu knew English and knew it sufficiently well to the make an effective representation against the Order of detention and the grounds on which the said Order of detention was based. Mr. B....
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....years. He was also the Chairman of the Block Development Advisory Committee and he was a member of the Congress (I) party. All these facts find place in the petition itself. Mr. Bhobe also point out two document which were signed by the detenu in English. We are inclined to agree with Mr. Bhobe that the detenu is sufficiently conversant with the English language to the extent that he could have made an effective representation against the Order of the detention and the grounds supporting that Order. 16. Mr. Karmali, on the other hand, contended that the even if the detenu had a working knowledge of the English language, it could not be stated that it was sufficient to enable the detenu to make an effective representation against the Order of detention as envisaged under Art. 22(2) of the Constitution. We have considered the statement made by the detenu before the Customs Officer, where he has categorically stated that he could read, write and understand the English language although he was not proficient at writing the same. Such familiarity with the English language was sufficient to enable the detenu to make an effective representation against the Order of detention. We are th....
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.... of rupees. Therefore, I am fully convinced that there is sufficient cause to pass detention order against you with a view to the preventing you from abetting the smuggling of goods and also with a view to preventing you from keeping and concealing smuggled goods". Mr. Karmali has pointed out two distortions in Para 36 cited heretofore. Firstly, Mr. Karmali has pointed out that the words "smuggled goods" has been translated as "jakat chori cha mal". According to Mr. Karmali this was an innovative translation of the words "smuggled goods". According to the Mr. Karmali the correct word for smuggled goods is "taskari mal". According to the learned Advocate "jakat chori cha mal" would mean tax evaded goods and this could mean either evasion of excise, octroi, customs or any other levy and not necessarily smuggled goods. Therefore, according to learned counsel, the translation did not convey the correct meaning the words "smuggled goods". Secondly the word "engaged" had not been translated at all in the Marathi translation. So also the word "abetting", though the word "abetting" had been added in English as an interpolation in the Marathi translation would not at all convey to the deten....