AI Drafter 
TaxTMI 
TaxTMI 
2022 (2) TMI 841
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.... Department of Revenue (Central Economic Intelligence 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 passeng....
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....iala House Courts on 04.02.2019 along with other co-accused persons; (vii) Harmeet Singh is stated to have preferred a bail application 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Customs Act on the ground that they were recorded under duress and coercion; and these statements are stated to have been retracted on 11.02.2019; (ix) A second bail application was moved by Harmeet Singh on 14.02.2019 before the learned Chief Metropolitan Magistrate, Patiala House Courts.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 ....
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.... vidé order dated 19.04.2021 made in SLP (Crl.) No. 3108/2021; (xvii) Action under section 7(1)(b) of the COFEPOSA Act is stated to have been initiated against Harmeet Singh on 07.08.2020; and he 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 Si....
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....orded entirely in Hindi. In this behalf attention is drawn to statements dated 22.04.2019 and 31.01.2020 recorded by Harmeet Singh under section 108 Customs Act, which have been recorded entirely in Hindi. This, counsel submits, is because the languages in which Harmeet Singh 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 t....
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....as a language, even if the medium of instruction was not English. Furthermore, it is submitted that by the very acts for which Harmeet Singh has been detained, it is evident he was a frequent traveler abroad, which means he must necessarily have more than a working knowledge of the English language since otherwise, 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-supp....
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....nied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in 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 ....
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....ompliance of the mandate of Article 22(5). The Hon'ble Supreme Court accordingly held as under : "7. ... To a person, who is not conversant with the English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfil the requirements of the law. As has been explained by this Court in the case of State of Bombay v. Atma Ram Sridhar Vaidya clause (5) of Article 22 requires that the grounds 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....
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....etaining authority in the grounds of detention as contra-distinct from a document that finds a mere reference in such grounds. Explaining the aspect of prejudice caused to a detenu, the Hon'ble Supreme Court said this : "9. However, this Court has maintained a distinction between a document which has been relied-upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non-supply of a copy of the document relied upon in the grounds 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 furn....
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....ned number of documents in English, it must be presumed that he was fully conversant with English. This is an argument which is based on pure speculation when the detenu has expressly stated that he did not know English. Merely because he may have signed some documents it cannot be presumed, in absence of cogent material, that he had a working knowledge of English. It is also not in dispute that a translated script of the grounds were (sic, not) supplied to the detenu at the time when the grounds were served on him. This is undoubtedly an essential 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....
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....e detenu was constantly accompanied by his son and daughter, who knew English very well, and since the detenu had filed a mercy petition in English. This is what the Hon'ble Supreme Court said : "63. It will be appropriate to deal with the first ground. Whether the grounds should have been communicated in the language understood by the detenus ? The Constitution requires that the grounds must be communicated. Therefore it must follow as an imperative that the grounds must be communicated in a language understood by the person concerned so that he can make effective representation. 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 understan....
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....stances of each case." (emphasis supplied) 11.2 The Ministry has also relied upon the decision of the Hon'ble Supreme Court in Kubic Darusz (supra), where the detenu was a Polish national and had challenged the detention order furnished to him on the ground that he did not know English : "9. While it is the settled law that the detention order, the grounds of detention and the documents referred to and relied on are to be communicated to the detenu in a language understood by him so that he could make effective representation against his detention, the question arises as to whether the courts 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 s....
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....e detenu, translated into a language the detenu understands; and it is not necessary for the detenu to even demonstrate prejudice to obtain translated version of the 'relied-upon' documents. However, insofar as documents that are only 'referred-to' in a detention order are concerned, if the detenu complains of non-supply of those documents or their translations, the detenu must show what prejudice is caused to him by such non-supply in making an effective representation ; (v) For completeness, where a detenu is illiterate, it has been held by the Hon'ble Supreme Court that the mandate of Article 22(5) would be served if the grounds of 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 ; ....
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....ble to him. He wrote : मै आप लोगो से विनती करता ह ूँ। वक मुझे ये सारे कागज जेल मे विलिाांए जाए वहन्िी या पांजाबी मे विए जाए। .." since he said, he was unable to understand English copies of the same. In view of such express request, 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 positiv....