TaxTMI 
TaxTMI 
TaxTMI 
2015 (5) TMI 1120
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....age which is situated in the interiors of the State of West Bengal. As per the petition, the native language of the petitioner is Bengali. He is educated upto Madhyamik (equivalent to class 10th) in the vernacular Bengali language. He understands and is conversant with Bengali language alone. According to the petition, this fact is known and accepted by the detaining authority; and also the fact that the knowledge of the petitioner of English language is limited to the extent of signing his name in English, and with difficulty and effort to copy a few lines if given to him in English. 5. The petitioner was lifted on 30.10.2014 from his house and brought to the Presidency Correctional Home, Alipore (Presidency Jail, Alipore), Calcutta. In jail he was served with the detention order dated 26.09.2014 along with the grounds of detention and copies of the documents relied upon; ninety six (96) pages in English were received by him; no translation in Bengali of the aforesaid documents was provided; and even the documents which were originally in Bengali were translated into English. It is also the case of the petitioner that under instructions of the Customs Officers, he read out a lett....
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....r of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our judgment, amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. The order made by the District Magistrate, Cuttack not having been followed up by service within five days as provided by Section 7(1) of the communication to him of the grounds on which the order was made must be deemed to have become invalid and any subsequent detention of the appellant was unauthorised." 8. For the same argument, reliance is also placed on Nainmal Pertap Mal Shah Vs. UOI and Ors. reported at AIR 1980 SC 2129, wherein the Supreme Court held that merely because the detenu had signed some documents in English, it cannot be presumed that he had working knowledge and was fully conversant with English. Reliance is also placed on Harikisan Vs. State of Maharashtra and Ors. reported at AIR 1962 SC 91. 9. In support of his argument that oral translation or explanation given to the person detained would not amount to communicating the grounds to the detenu, reliance is placed on ....
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....here were two holidays between 9.2.2015 and 18.2.2015, this would not come to the aid and rescue of the respondent, as the law with regard to the same is well settled and further the respondent would be well aware in advance about the holidays. In support of his submission counsel for the petitioner has placed reliance on Dheer Singh Vs. UOI [WP(Crl.)No.965/1998] and Sh. Nawal Kishore Ghanshyam Das Bangard Vs. UOI [WP(Crl.)No.867/1998]. Reliance is also placed on Mahesh Kumar Chauhan @ Banti Vs. UOI reported at AIR 1980 SC 1455; Julia Jose Mavely Vs. UOI & Ors. reported at AIR 1992 SC 139. 13. An additional ground (third ground) was raised by the petitioner by filing an additional affidavit which is ground (M). It has been strongly urged by counsel for the petitioner that the representation dated 1.12.2014 filed by the petitioner addressed to the COFEPOSA Board remains undecided by the Central Government and by the detaining authority. It is the case of the petitioner that it is a mandatory requirement that all representations are to be decided by the Central Government and the detaining authority, and in the absence thereof, the order of detention is liable to be quashed. 14. Co....
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.... has been addressed to the Advisory Board only, the detaining authority and the appropriate Government are not required to consider it. Counsel for the petitioner submits that in the present case, also merely because the representation has been made to the Advisory Board does not mean that the Central Government and the detaining authority are not required to consider the same. 16. Additionally (fourth ground) it has been argued that upon reading the additional affidavit, it seems that all the documents were not available with the Screening Committee and the Sponsoring Authority when the grounds of detention were formalized and on this ground alone the detention order is required to be quashed. Reliance is placed on The State of Maharashtra Vs. Ramesh Kumar reported at JT 1988 (1) SC 153. 17. Mr.Sanjay Jain, learned Additional Solicitor General, submits that the present petition is without any merit and the same is liable to be dismissed. It is submitted that the petitioner is fully conversant with English language. The petitioner has studied upto Madhyamik (equivalent to class 10th) in vernacular Bengali language, from the West Bengal Board, successfully in second division. As p....
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....the Advisory Board. Reliance is placed on D. Anuradha Vs. Joint Secretary & Anr. reported at (2006) 5 SCC 142; Smt.K.Aruna Kumar Vs. Govt. of Andhra Pradesh & Ors. reported at (1988) 1 SCC 296; and State of Uttar Pradesh Vs. Zavad Zama Khan reported at (1984) 3 SCC 503 and more particularly paragraph 13, in support of his submission that successive representation cannot be made, more particularly when the representation in question does not raise any fresh ground. Counsel submits that the identical grounds were raised by the wife of the detenu in her representation of the same date, which was duly decided within a period of 5 days. Paragraph 13 of the judgment State of Uttar Pradesh (Supra) reads as under: "13. The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under s. 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own source including that supplied by the State Government under sub-s. (5) of s. 3 or from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or not it should revoke the orde....
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....red their rival submissions and have also gone through the documents which have been filed along with the writ petition. The first ground which has been urged by counsel for the petitioner is that in the absence of translations of the detention order and the documents supplied along with the detention order in Bengali, the detention order is liable to be quashed. It has also been contended before us that the petitioner belongs to a village, resides in the interior of the State of West Bengal and has studied upto Madhyamik (equivalent to class 10th) in vernacular Bengali language, and he cannot read and write English. This submission of counsel for the petitioner is without any force. The petitioner has filed along with the writ petition an acknowledgement written by him in English dated 30.10.2014, in his own handwriting that he has received the order and grounds of detention along with the relied upon documents. He has also made an endorsement that the order of detention was read out to him and explained in Bengali which is his native language. The endorsement reads as under: "To, The Joint Secretary Government of India Ministry of Finance, C.E.I.B., Cofeposa Unit Ne....
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....etenu is not required to write an essay or pass any language test. A working knowledge of English enabling him to understand the grounds would be enough for making a representation. He could very well send his representation in the language known by him. 11. In Parkash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors., [1985] 3 SCR 697, Venilal D. Mehta, his daughter Miss Pragna Mehta and son Bharat Mehta were detained under the COFEPOSA Act by an order dated 19th June, 1984 and the detention order was challenged in this Court under Article 32 of the Constitution of India. They were alleged to have been in possession of 60 gold biscuits of foreign origin. After their arrest the father and his daughter were taken to the Central Excise and Customs Department, Cochin where statements on their behalf were written in English by the daughter. The father Venilal D. Mehta put his signature in English as Balvant Shah but the daughter told the officers concerned that the correct name of her father was Venilal Mehta. In the writ petition it was the case of the father that he could not understand, read, speak or write English but could only sign his name in English. He....
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....e 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 had been stated so in the affidavit filed on behalf of the respondent. We are of the opinion that the detenu Venilal Mehta was merely reigning ignorance of English." 12. After referring to the decisions in Hadibandhu Das v. District Magistrate, Cuttack & Anr., Nainmal Partap Mal Shah v. Union of India & Ors., and Ibrahim v. State of Gujarat & Ors. this Court in Prakash Chandra Mehta rejected the contention that the grounds of detention were not communicated to Venilal Mehta in a language understood by him. 13. Considering the facts and circumstances of the instant case and in view of the fact that no objection regarding non-communication of the grounds in a language understood by the detenu was made within the statuto....
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.... copy of the representation. The representation was made in "Tamil" and it is submitted by the Union Government that it took about three months to get a proper translation of the representation and as soon as the translation was received, the authorities took urgent steps and it was disposed of within a short period. In the facts and circumstances of the case, we do not think that there was inordinate delay in disposing of the representation. 17. It is true that this court in series of decisions has held that if there is any serious delay in disposal of the representation, the detention order is liable to be set aside. Nevertheless, it may be noticed that if the delay is reasonably explained and that by itself is not sufficient to hold that the detenue was bad and illegal. In Smt. K. Aruna Kumari Vs. Government of A.P. & Ors. (1988) 1 SCC 296 relying on State of U.P. Vs. Zavad Zama Khan (1984) 3 SCC 505 this Court held that there is no right in favour of the detenue to get his successive representations based on the same grounds rejected earlier to be formally disposed of again and also pointed out that in any event no period of limitation is fixed for disposal of an application.....
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....ontention raised by the appellant's learned Counsel is that some of the relevant materials were not placed before the detaining authority and the omission to place those materials before the detaining authority had caused serious prejudice to the detenue. It was urged that the investigating authorities had collected the materials and once these materials were received by the sponsoring authority, they had no right to edit and decide which materials were relevant and they were bound to send the entire materials to the detaining authority. The learned Counsel for the appellant drew our attention to some of the relevant documents which were not placed before the detaining authority. This contention was elaborately considered by the Division bench and it was held that all relevant materials were placed before the detaining authority." 25. While making representation is a statutory safeguard provided to the detenu under Article 22(5) of the Constitution of India, it is settled law that a representation is to be decided expeditiously, and in case it is not decided expeditiously, unexplained delay would be a ground for quashing the detention order. Although no timeframe has been fixe....
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....o exercise it arises only where new and relevant facts and circumstances come to light. This was not so here, and as observed in para 13 of the Judgment in State of Uttar Pradesh v. Zavad Zama Khan, [1984] 3 SCC 505, there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. In any event no period of limitation is fixed for disposal of an application under Section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed, was considered and rejected." 27. Additionally on examination of the details provided in the counter affidavit showing that the representation dated 05.02.2015 was received on 09.02.2015, sent to the Customs (Preventive) Calcutta on 10.02.2015; comments were received on 17.02.2015 and replied on 18.02.2015, we find that there is no inordinate unexplained delay in deciding the representation and more particularly for the reasons stated in the paragraph aforegoing being a third representation, wherein no additional ground was raised and thirdly, the same was made after the opinion of the Board. 28. Counsel for the petitioner has also urge....
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....rked to the Advisory Board and no copy was supplied to either the Central Government or the detaining authority, it is not open for the petitioner to say that the representation was not decided by them, irrespective of the fact that the representation was addressed to the Advisory Board. Undoubtedly, in case the representation had been served upon the Central Government or the detaining authority, it would have been mandatory for them to have decided the same. 31. The additional ground raised by counsel for the petitioner i.e., in the absence of documents as admitted by the respondents in the time-chart, the detention order is bad in law and is liable to be quashed, is also without any force, as the time-chart leaves no room for doubt that prior to the passing of the detention order all documents sought to be relied upon were received. The relevant endorsement of the time-chart reads as under: "TIME CHART PERTAINIG TO DETENTION OF SHRI SAHIDUL ISLAM MONDAL alias SAIDUL ISLAM MONDAL 06.05.2014 Shri Sahidul Islam Mondal alias Saidul Islam Mondal is a habitual offender of smuggling of gold of foreign origin and smuggled gold of foreign origin was seized twice from him within a pe....