TaxTMI 
TaxTMI 
TaxTMI 
2004 (9) TMI 701
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....ith the description of the goods actually found on examination, and therefore, the goods were seized. It was found that there was shortage of pieces of readymade garments as against the declared quantity, but on the declared value of the said shipping bills, which was inflated, the draw back amount was claimed. Thereafter, the Customs officials visited the premises of M/s.M.J.Fabrics at a particular address, which address was also given for two more export companies, namely, M/s.Om Tex and M/s.Raj Tex, but it was found that the premises were locked. The residential house of the detenu was searched on 13.2.2004 and certain documents were seized as per the mahazar. The officers also searched the shop of the detenu in the name of M/s.Pooja Fabrics, but no incriminating document was seized therefrom. On the very same day, i.e., 13.2.2004, statement of the detenu was recorded in Hindi under Section 108 of the Customs Act, wherein it was inter-alia stated that the detenu was the proprietor of M/s.M.J. Fabrics having office at No. 87, M.C. Road, Manish Arcade, Room No. 7, Second Floor, Chennai-21, without proper office and there was only a Post Box to receive postal deliveries. In the sta....
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....admitted on 5.5.2004 with a direction to issue notice returnable by 21.6.2004. Subsequently, when the matter was listed on 15.7.2004, a Division Bench had granted one week time for filing counter. It was indicated therein " ... However, if the counter is not filed by then, the matter shall proceed without the counter." However, the matter was adjourned again on 22.7.2004. On 16.8.2004, the matter was again adjourned by two weeks to enable the respondents to file counter. The matter was again adjourned on 30.8.2004 to 10.9.2004 for filing counter. Ultimately, the matter was heard on 16.9.2004 and adjourned to 20.9.2004 "For Orders" and again, the same was adjourned to 21.9.2004 "For Orders". However, no counter has been filed on behalf of Respondent No. 1. 6. Even though several contentions have been raised as indicated earlier, we are confining our attention to the question relating to non-furnishing of translated copies of relevant documents as, in our opinion, the Habeas Corpus Petition is to be allowed on the said ground. 7. From the grounds of detention itself, it is apparent that the detenu was not conversant in English. As a matter of fact, the....
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....in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. There are the two outside time-limits provided by Section 3, sub-section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of clause (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of Section 3, sub-section (3) of the COFEPOSA Act. Now it is obvious that when clause (5) of Article 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may ....
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....#39; to the detenu. 'Communicate' is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imported effectively and fully to the detenu in writing in a language, which he understands. The whole purpose of 'communicating the grounds' to the detenu is to enable him to make a purposeful and effective representation." 4. Admittedly, the petitioner knows Tamil only and the copy of the customs clearance card incorporating oral declaration made by her has not been furnished to her in Tamil. The explanation offered is that the customs clearance card is only a standardised form and there is therefore no necessity to give a Tamil copy thereof. This explanation is not acceptable. It is not the standardised form that is furnished to the detenu, but the form containing the oral declaration of the detenu. The customs clearance card incorporating the oral declaration of the detenu is an important document, which in effect sets the core of the allegations against her. As the detenu was not provided with the Tamil translation of the said document, she could not make effective representation. The order of detention cannot there....
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....owing question was formed by the Full Bench itself : "Whether the failure on the part of the detaining authority to supply the Tamil translation of the documents like entries in the passport, boarding card, baggage check clearance card, air-ticket, etc., though asked for by the detenu, would vitiate the further detention and whether it can be held that such failure on the part of the detaining authority would amount to the breach of Art. 22(5) of the Constitution of India which gives the detenu a right to make an effective representation?" 17. The Full Bench opined that none of those documents, the translations of which have not been supplied to the detenu, can be described as "relied upon" documents. On the other hand, the Full Bench held that those documents can be described as "referred to" documents. Therefore, relying upon the decision of the Supreme Court in 1999CriLJ831 (POWANAMMAL v. STATE OF TAMIL NADU), it was observed that there was no necessity to supply the translation of documents, which had not been relied upon. It was further observed :- " The observations and more particularly the emphasised portion, which are applicable to t....
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....emanded by the detenu and more particularly the English portion therein." 18. After carefully going through the aforesaid decision, particularly the portions extracted above, we fail to see how this decision would come to the aid of the respondents. By no stretch of imagination, the documents in question in the present case can be considered as standard, printed and public documents of common nature. On the other hand, the Full Bench itself has observed that since the Boarding Pass has been relied upon, a translated copy was required to be furnished, and had been rightly furnished. In our opinion, Hindi translated copy of documents in English, which contains several entries, on the basis of which detention order has been passed, should have been furnished to the detenu. 19. Learned counsel for the State, however, contended that the detenu knew English, and therefore, there was no necessity to furnish translated copies. In support of such contention, he has placed reliance upon the decision of the Supreme Court reported in (KUBIC DARIUSZ v. UNION OF INDIA AND OTHERS). In the said case, even though the Supreme Court emphasised on the fact that translated copies of the relevant....
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....glish. On the face of such unassailed materials, a mere contention raised at the hearing stage without any convincing supporting materials, cannot be accepted. In such view of the matter, the order of detention is liable to be quashed as non-furnishing of translated copies of relied documents relied upon by the detaining authority himself has vitiated the order of detention. 21. In view of the above, it is unnecessary to deal with the other contentions raised by the Senior counsel for the petitioner. 22. For the aforesaid reasons, we quash the order of detention and the detenu is set at liberty forthwith unless he is required in any other connected case. 23. Before parting with the case, However, one aspect needs to be emphasised. The manner in which the Habeas Corpus Petition has been adjourned number of times on the request of the respondents for filing counter, is apparent from the earlier narration. Article 22 of the Constitution of India requires that a representation of the detenu is required to be disposed of without any unnecessary delay. It is of course true that nothing is indicated in Article 22 about the necessity to dispose of the Habeas Corpus Petition as expeditio....