AI Drafter 
TaxTMI 
TaxTMI 
2024 (1) TMI 294
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....elding huge quantity of gold, along with the recovery of foreign currencies of various denominations. As a consequence, the detenue was arrested, followed by a detention order passed by the detaining authority in exercise of the powers conferred under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA Act"). Prior to the said order he obtained an order of bail. 4. The detention order was passed against the detenue on 05.09.2023 after which he was subsequently detained on 19.09.2023 from his home, in the presence of his family members. Following the heels of the said order, the respondents made an endeavor to serve the grounds of detention along with the relevant documents on the very next day i.e., 20.09.2023 with due translation in the Bengali language. The detenue who was in a correctional home steadfastly refused to receive them despite persuasive attempts made by the Respondents. A panchnama was prepared, and before its due execution another abortive attempt was made to make him receive the grounds of detention, along with the relevant documents. The detenue reiterated his earlier stand, ho....
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.... Thahira Haris v. Govt. of Karnataka, (2009) 11 SCC 438 SUBMISSIONS OF THE RESPONDENTS 8. Repelling the contentions of the appellant, the learned Additional Solicitor General appearing for the respondents submitted that due procedure has been followed and ample opportunities were provided. The translated version of the grounds of detention along with the relevant documents were attempted to be served upon the detenue on the very next day after his detention in due compliance of Section 3 of the COFEPOSA Act. A panchnama was drawn in the presence of two independent witnesses to cover the incident of detenu's refusal in accepting the ground of detention as per the extant principles of law. The panchnama bears the signature of the detenue with a remark "I have refused to receive any document", this sufficiently indicates that twin test enshrined in Article 22(5) of the Constitution of India was duly complied with. Even in the grounds of detention there are adequate averments clearly indicating detenue's right to make representation to the named authorities. The contention raised is only an afterthought and therefore the present appeal deserves to be dismissed. 9. Despite re....
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....tion of his right can either be oral or in writing. This right assumes importance as a detenue in a given case may well be a literate, semi-literate or illiterate person. Therefore, it becomes a cardinal duty on the part of the authority that serves the grounds of detention to inform a detenue of his right to make a representation. 13. While the aforesaid two rights and duties form two separate parts of Article 22(5) of the Constitution of India, they do overlap despite being mutually reinforcing. Though they travel on different channels, their waters merge at the destination. This is for the due compliance of Article 22(5). The entire objective is to extend knowledge to the detenue leading to a representation on his decision to question the detention order. Such a right is an inalienable right under scheme of the Constitution of India, available to the detenue, corresponding to the duty of the serving authority. 14. Having reiterated the said principle of law, the question for consideration is 'to what extent a communication can be made both orally and in writing'. In a case where a detenue is not in a position to understand the language, a mere verbal explanation would not ....
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....objections against the order of detention. Moreover, "the earliest opportunity" has to be given to him to do that. While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the conclusions in the grounds are founded could and should equally be conveyed to the detained person to enable him to make out his objections against the order. To put it in other words, the detaining authority has made its decision and passed its order. The detained person is then given an opportunity to urge his objections which in cases of preventive detention comes always at a later stage. The grounds may have been considered sufficient by the Government to pass its judgment. But to enable the detained person to make his representation against the order, further details may be furnished to him. In our opinion, this appears to be the true measure of the procedural rights of the detained person under Art. 22(5). xxx xxx xxx 12...The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds i.e., materials on whic....
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....any of the fundamental rights mentioned in Part III of the Constitution. This is, of course, subject to the limitations prescribed in clause (5) of Art. 22. That clause, as noticed above, requires two things to be done for the person against whom the order is made. By reason of the fact that cl. (5) forms part of Part III of the Constitution, its provisions have the same force and sanctity as any other provision relating to fundamental rights. As the clause prescribes two requirements, the time factor in each case is necessarily left fluid. While there is the duty on the part of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make a representation which obligations, as shown above, are correlated, there exists no express provision contemplating a second communication from the detaining authority to the person detained. This is because in several cases a second communication may not be necessary at all. The only thing which emerges from the discussion is that while the authorities must discharge the duty in furnishing grounds for the order of detention "as soon as may be" and also provide "the earliest opportunity to th....
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....his was not sufficient compliance in this case with the requirements of the Constitution, as laid down in cl. (5) of Art. 22. 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 The State of Bombay v . Atma Ram Sridhar, 1951 SCR 167 : (AIR 1951 SC 157), cl. (5) of Art. 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 hi....