TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 841
X X X X Extracts X X X X
X X X X Extracts X X X X
....telligence Bureau); Joint Secretary (COFEPOSA); and The Commissioner of Customs, Terminal-3, IGI Airport, New Delhi, which parties are hereinafter collectively referred to as the 'Ministry' or the 'respondents'. 2. The petitioner further seeks quashing of detention order bearing No. PD-12002/05/2020-COFEPOSA dated 05.06.2020 issued under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) by the Joint Secretary COFEPOSA (the "impugned detention order") under which the petitioner's son is in preventive detention with The Superintendent, Tihar Jail, New Delhi, which detention order also stands confirmed by the Department of Revenue, Ministry of Finance vidé order dated 11.08.2021. 3. As per the record, the Ministry's case against the petitioner's son is this : (i) A specific intelligence input is stated to have been received on 01/02.02.2019 by the Assistant Commissioner, Green Channel (Shift-D) at the Indira Gandhi International Airport (IGI Airport) about smuggling of drones, goods, cigarettes and certain other items in commercial quantity by six passengers on different flights. Pursuant to this intelligenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on before the learned Metropolitan Magistrate, Patiala House Courts on 04.02.2019, which was dismissed; and he was remanded to judicial custody till 05.02.2019 along with other co-accused persons. Harmeet Singh's judicial custody was subsequently extended from time-to-time; and the last extension was granted till 06.04.2019 vidé order dated 02.04.2019 made by the learned Chief Metropolitan Magistrate; (viii) In the meantime, on 05.02.2019 Harmeet Singh as well as other accused persons filed for retraction of their statements dated 02.02.2019 recorded under section 108 of the Customs Act on the ground that they were recorded under duress and coercion; and these statements are stated to have been retracted on 11.02.2019; (ix) A second bail application was moved by Harmeet Singh on 14.02.2019 before the learned Chief Metropolitan Magistrate, Patiala House Courts. Another application was filed on 16.02.2019 to preserve the airport CCTV footage of the intervening night of 01.02.2019 and 02.02.2019 as also seeking transfer of investigation of the case to the CBI. The second bail application was dismissed on 20.02.2019and the application seeking to preserve the CCTV footage was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was finally detained on 24.05.2021. The impugned detention order along with the grounds of detention in the English language are stated to have been served upon Harmeet Singh on 24/25.05.2021; (xviii) On 24.06.2021 Harmeet Singh made a written request for being provided a copy of the detention order along with the grounds of detention in either Hindi or Punjabi language, since he said he was unable to understand English copies of the same. This request was forwarded by The Superintendent, Tihar Jail to the Deputy Secretary, Government of India on 26.06.2021. The said letter was treated as a representation; which was stated to have been sent to the Joint Registrar (COFEPOSA), Delhi High Court, along with the Ministry's para-wise comments thereon, for being placed before the Central Advisory Board; which conducted its meeting on 30.07.2021 via videoconferencing, at which Harmeet Singh is also stated to have been present along with his legal representative. Harmeet Singh's request/representation was rejected by the Advisory Board vidé memorandum dated 12.08.2021, the Advisory Board having found that there existed sufficient grounds for Harmeet Singh's detention; (xix) The i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is proficient are only Hindi and Punjabi, notwithstanding the fact that he is able to write a few words or a short sentence in English or that he can sign in English; (ii) The mere fact that Harmeet Singh recorded that "I have no objection if my personal and baggage search is conducted by any customs officer" in English on the notice served upon him under section 102 Customs Act on 02.02.2019 and also signed the same in English, is not evidence of the fact that Harmeet Singh knew English to any extent; (iii) Though Harmeet Singh signed on panchnama dated 02.02.2019, on his seizure memo dated 02.02.2019 as also on statement dated 02.02.2019 recorded under section 108 Customs Act in English, again does not mean that he understands English with any level of proficiency. It is pointed-out that in statement dated 02.02.2019 recorded under section 108 Customs Act, Harmeet Singh specifically wrote that "I can read, write and understand and speak Hindi/English and Punjabi languages". By this, it is evident that the principal language with which Harmeet Singh is familiar is not English; (iv) It will be seen from his jamatalashi dated 03.02.2019 that on 05.09.2019 Harmeet Singh subscr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se, he could not have travelled abroad. In essence, the submission is that all that is required is a working knowledge of the English language, which is evident from all the foregoing factors; and especially from the fact that Harmeet Singh can write and also sign in English. Judicial Precedents Relied Upon by Parties 7. In support of her contentions, the petitioner has relied upon the following judicial precedents : (i) Shri Lallubhai Jogibhai Patel vs. Union of India & Others (1981) 2 SCC 427; para 20 : for the proposition that the purpose of communicating the grounds of detention is not served by mere verbal explanation in the language that the detenu understands; and a written translation in that language must be provided; (ii) Powanammal vs. State of T.N. & Another (1999) 2 SCC 413; paras 4, 6, 7, 8, 10, 15 & 16: for the proposition that non-supply of the detention order in a language that the detenu understands impairs the detenu's right to make an effective representation; (iii) Chaju Ram vs. The State of Jammu & Kashmir (1970) 1 SCC 536; paras 9 & 10: for the proposition that handing over the grounds of detection to detenus in an alien language frustrates their righ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless - (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him. In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. Communication, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based. In this case the grounds are several and are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communicating the grounds. Communication, in this context, must mean bringing ho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because the non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenu's complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document would equally apply to furnishing a translated copy of the document in the language known to and understood by the detenu, should the document be in a different language." (emphasis supplied) 10.4 A very important aspect that came-up in the course of submissions in this matter, is as to what would be the legal position if a detenu happened to be illiterate. It transpires that this issue has also been dealt with by the Hon'ble Supreme Court in Chaju Ram (supra), in which the position of law has been explained as under : "9. ... The detenu is an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ential requirement, as held by this Court in Hadibandhu Das v. District Magistrate [AIR 1969 SC 43 : (1969) 1 SCR 227 : 1969 Cri LJ 274]. In these circumstances, therefore, there has been a clear violation of the constitutional provisions of Article 22(5) so as to vitiate the order of detention. The petition is, therefore, allowed, the continued detention of the detenu being invalid, he is directed to be released forthwith." (emphasis supplied) 10.6 A view taken by a Coordinate Bench of the Hon'ble Madras High Court in Daku Devi vs. State of Tamil Nadu Judgment dated 21.09.2004 in H.C.P. No. 590 of 2004 (Madras HC) is also, in our opinion, the correct perspective as regards a person who has some sketchy knowledge of a certain language, when it holds that : "7. From the grounds of detention itself, it is apparent that the detenu was not conversant in English. As a matter of fact, the statement of the detenu, on the basis of which the grounds of detention was passed, was in Hindi. Such statement also indicates that the detenu does not know how to write English. The detenu himself had made a representation indicating that he does not know English and Hindi translation of several d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....resentation. Here the definite case of the petitioner's father is that he does not understand English or Hindi or Malayalam and does understand only Gujarati language. The facts revealed that the detenu Venilal was constantly accompanied and was in the company of his daughter as well as son - both of them knew English very well. The father signed a document in Gujarati which was written in English which is his mercy petition in which he completely accepted the guilt of the involvement in smuggling. That document dated June 30, 1984 contained, inter alia, a statement "I myself am surprised to understand what prompted me to involve in such activity as dealing in imported gold". He further asked for mercy. There is no rule of law that commonsense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. Bearing this salutary principle in mind and having regard to the conduct of the detenu - Venilal Mehta specially in the mercy petition and other communications, the version of the detenu Venilal is feigning lack of any knowledge of English must....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s have necessarily to accept what is stated by the detenu or is it permissible for the court to consider the facts and circumstances of the case so as to have a reasonable view as to the detenu's knowledge of the language in which the ground of detention were served, particularly in a case where the detenu is a foreign national. If the detenu's statement is to be accepted as correct under all circumstances it would be incumbent on the part of the detaining authority in each such case to furnish the grounds of detention in the mother tongue of the detenu which may involve some delay or difficulty under peculiar circumstances of a case. On the other hand if it is permissible to ascertain whether the statement of the detenu in this regard was correct or not it would involve a subjective determination. It would, of course, always be safer course in such cases to furnish translations in the detenu's own language. We are of the view that it would be open for the court to consider the facts and the circumstances of a case to reasonably ascertain whether the detenu is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f detention are explained to the detenu in a language that he understands, so as to enable him to avail the fundamental right of making a representation ; (vi) 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 ; (vii) Whether a detenu is conversant with a given language; or is merely feigning ignorance; or has sufficient working knowledge to understand the grounds of detention and the contents of documents relied-upon, would depend upon the facts and circumstances of each case, which a court may reasonably ascertain ; (viii) It would always be the safer course to furnish translations of the grounds of detention and the documents relied-upon in the language that a detenu understands. 13. Applying the foregoing principles to the facts of the present case, we are persuaded to accept that : (i) Merely because Harmeet Singh signed several documents in English and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....est, we are unable to understand as to why the detaining authority did not furnish to Harmeet Singh the requested documents in a language that he understood; and stood obstinately on ceremony on the assertion that Harmeet Singh understood sufficient English to be able to defend himself against his preventive detention. (iii) A tail-end argument advanced by the Ministry, to say that since Harmeet Singh had travelled abroad on multiple occasions, that was proof positive that he understood sufficient English, is to be heard only to be rejected. (iv) In fact, in our opinion, 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 ....