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CASE NO.: Appeal (crl.)  53 of 2004

PETITIONER: A.C. Razia                               

RESPONDENT: Government of Kerala & Ors.      

DATE OF JUDGMENT: 12/01/2004

BENCH: CJI. & P. VENKATARAMA REDDI.

JUDGMENT: JUDGMENT

With

Writ Petition (Crl.) No. 6 of 2003 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 153 OF 2003

P. Venkatarama Reddi, J.

       Leave granted in S.L.P.(crl.) No. 153 of 2003. Questioning the detention of the  petitioner’s husband   by name, P. Mohd. Kutty under the provisions of  Conservation of Foreign Exchange and Prevention of  Smuggling Activities  Act (COFEPOSA), Writ Petition (Crl.)  No.6 of 2003 has been filed by her praying for the issuance  of a writ of habeas corpus. The detention order was also  challenged in the High Court of Kerala by way of a petition  filed under Article 226.  The Writ Petition was dismissed on  29.11.2002.  The said judgment has been challenged in the  Special Leave Petition.  The Special Leave Petition came up  for hearing before a bench consisting of Rajendra Babu, J.  and G.P. Mathur, J.   Rajendra Babu, J. allowed the writ  petition by quashing the order of detention.  However,  Mathur, J. held that the writ petition and the SLP were liable  to be dismissed.  In view of this difference of opinion, the  matter has been placed before this three Judge Bench.         On 24.12.2000 the baggage of one Anodiyil Mammu,  who was  waiting to take the flight to Dubai, was inspected  at Trivandrum International Airport. He is related to the  detenu. On such inspection, foreign currencies were found in  a brief case and various other articles which he was  carrying.  Some of the foreign currency notes were  concealed in a cardboard carton.  The foreign currency was  seized and the statement of Mr. Mammu was recorded under  Section 108 of the Customs Act.  He stated that the foreign  currency was entrusted to him by P. Mohd. Kutty i.e. the  detenu for conveying it to Dubai and handing it over to one  Shafeek for which he was to be paid some remuneration. He  gave various details as to how and from where he got the  carton and foreign currency. On the same day and the next  day, the statements of Mohd. Kutty, the detenu and various  other persons, who were directly or indirectly involved in   this operation, were recorded under Section 108 of the  Customs Act and they were substantially in conformity with  the version of A. Mammu. Initially, Mohd. Kutty confessed to  his involvement.  However, the statements were retracted  later on.  Anodiyil Mammu claimed the ownership of foreign

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currency in his representation dated 15.01.2001 and  thus  retracted from earlier statement. On the basis of the  information together with the supporting material received  from the Directorate of Revenue  (Intelligence), the order of  detention was passed by the Government of Kerala (Home  Department) on 19.4.2001.  However, the detenu could only  be arrested on 24.6.2002.  The detenu was served with the  order and grounds of detention together with the copies of  various documents referred to in the grounds. The  representation addressed to the detaining authority was sent  by the detenu’s wife on 13.7.2002 and the same was  rejected by the State Government. The representation  addressed to the Central Government was also rejected on  29.7.2002.  The case of the detenu was referred to the  Advisory Board and on the basis of the report received, the  Government confirmed the detention order on 6.9.2002.  At  that stage the writ petition under Article 226 was filed in the  Kerala High Court challenging the detention.         The only point raised in the course of the arguments in  the High Court was that the documents furnished to the  detenu were not translated into Malayalam on account of  which he was unable to make proper representation against  his detention.  This contention was rejected by the Division  Bench of the High Court, relying on the averments in the  counter-affidavit filed  by the State.  The High Court referred  to the fact that the documents duly translated into  Malayalam were in fact furnished to the detenu and he  acknowledged the same on 24.6.2002.  The High Court also  observed that the detenu was familiar with the English  language.  The contention, which was rejected by the High  Court, has not been reiterated before this Court.  However,  the only contention urged is that the disposal of the  representation by the Central Government was not proper.  As many of the crucial documents were in Malayalam, the  officials  of the Central Government who dealt  with the case  being unacquainted with Malayalam language, should have  called  for translated copies of the documents.  The  authorities of Central Government would not have,  therefore, perused the relevant documents and in this sense  there was no proper application of mind. It is submitted that   the improper disposal of the representation has vitiated the  detention and the continued detention is violative of Articles  21 and 22 of the Constitution. Rajendra Babu, J. was of the view that for a proper  consideration by the Central Government, there shall be full  and independent application of mind on the representation  and on all the documents which formed the basis of  detention order. The grounds of detention and the  documents upon which it is based should be ’strictly  scrutinized’. For this purpose, the necessary documents  should be translated into the language which could be  understood by the concerned official without which full and  independent application of mind cannot be ensured. Since  the detaining authority had not placed the representation  and the alleged documents in a translated form before the  Central Government, the appellant’s representation was not  properly evaluated and therefore the guarantee under Article  22(5) was violated. G.P. Mathur, J. observed that the power under     Section 11 to revoke the order of detention is some kind of a  supervisory power. If so, while considering the  representation, it is not necessary for the Central  Government to look into and thoroughly examine all those  documents which have been supplied to the detenu along  with grounds of detention. The principle that the documents

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which are not material and to which only casual reference  was made in the grounds need not be supplied to the detenu  will equally apply in the matter of consideration of  representation by the Central Government. Basically, the  Central Government is required to examine the pleas raised  by the detenu in his representation and in the present case  the detenu hardly raised any specific plea which would  require perusal and examination of the document copies of  which were supplied to the detenu. If the translation is to be  insisted, it would often lead to delay and that itself may  become a ground to invalidate the detention. The only question on which the arguments have been  addressed before us is whether there could be due  application of mind on the part of the Central Government  and proper disposal of the representation in the absence of  English translated copies of documents relied on in the  detention order? Though the answer to this question lies in a  narrow compass, arguments on certain wider issues were  addressed before us, keeping in view the differing view- points expressed by the two Hon’ble Judges. The questions  debated relate to the ambit of the guarantee incorporated in  Article 22(5) vis-‘-vis the consideration of representation by  the Central Government and the nature and extent of power  under Section 11 of COFEPOSA Act. We have felt that it is  desirable to marshal the thoughts on the subject and restate  the principles with clarity. Hence, this wider discussion. The law of preventive detention is a drastic law as it  authorizes detention without trial in a court of law and is an  encroachment on the liberty of an individual which is a  cherished freedom under our Constitution.  At the same  time, the need for such law in larger public or national  interest has been recognized by the Constitution.  In order  to mitigate the rigour of the law, certain minimum  safeguards have been provided in the Constitution in  order  to ensure that there is no unjustified detention and the  detention should not continue unnecessarily.  The preventive  detention laws such as the COFEPOSA Act, with which we  are concerned, apart from ensuring the minimum safeguards  expressly mandated by the Constitution, have supplemented  to these safeguards especially by making provisions enabling  scrutiny and review of detention order by more than one  authority on the representation of the detenu or otherwise.  By judicial interpretation, some more ancillary safeguards to  effectuate the constitutional guarantees flowing from Articles  21 and 22 have been carved out. The twin constitutional safeguards related to preventive  detention are enshrined in clauses (4) and (5) of Article 22.   Clause (4) prescribes a ban on the law authorising  preventive detention for a period longer than 3 months  unless the Advisory Board reports before the expiration of a  period of 3 months that in its opinion there is sufficient  cause for such detention. This is however subject to the  exception laid down in sub-Clause (a) of Article 22(7). The  Advisory Board is composed of persons who are, or have  been or are qualified to be Judges of the High Court.  The  proviso to Clause (4) further mandates that the detention  cannot extend beyond the maximum period prescribed by a  law made by the Parliament vide clause (7) of Article 22.    We are concerned here with clause (5) of Article 22.   The dual rights under clause (5) are : (i) the right to be  informed as soon as may be of the grounds on which the  order has been made, that is to say, the grounds on which  the subjective satisfaction has been formed by the detaining  authority and (ii) the right to be afforded the earliest  opportunity of making a representation against the order of

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detention.  By judicial craftsmanship certain ancillary and  concomitant rights have been read into this Article so as to  effectuate the guarantees/safeguards envisaged by the  Constitution under Clause (5) of Article 22.  For instance, it  has been laid down by this Court that the grounds of  detention together with the supporting documents should be  made available to the detenu in a language known to the  detenu.  The duty to apprise the detenu of the right to make  representation to one or more authorities who have power  to reconsider or revoke the detention has been cast on the  detaining authority.  So also the duty to consider the  representation filed by or on behalf of the detenu with  reasonable expedition has been emphasized in more than  one case and where there was inordinate delay in the  disposal of representation, the detention was set aside on  that very ground. In COFEPOSA Act and cognate Acts, we find an array of  statutory safeguards with regard to detention "in tune with  the constitutional requirements" . Sub-section (2) of    Section 3 of COFEPOSA Act casts an obligation on the State  Government to forward to the Central Government within 10  days the report in respect of the detention order.  It is  obvious that this provision is meant to enable the Central  Government to address itself to the issue of detention at the  earliest opportunity and to intervene in appropriate cases by  exercising its power of revocation under Section 11.    Section 3(3) of the Act provides that the grounds of  detention shall be furnished ordinarily not later than 5 days  after the detention.  Section 8 provides for constitution of  Advisory Board, the procedure to be followed by the Board  and the action to be taken by the Government on receipt of  the opinion of the Board.  Section 10 prescribes the  maximum period of detention which is one year or two  years, depending on the applicability of Section 9.       Section 11 empowers the State Government or the Central  Government, as the case may be, to revoke the detention  order without prejudice to the power of the detaining  authority to rescind the same under Section 21 of the  General Clauses Act. The combined effect of the constitutional and statutory  provisions from the point of view of the detenu’s right to  make  the representation is to provide more than one forum  to re-examine or review the case of the detenu and to afford  him various means of redressal of his grievance. Thus, the  matter could be examined by (i) the Advisory Board, (ii) the  detaining authority and (iii) the State or Central  Governments acting under Section 11 or on receipt of  Advisory Board’s opinion.  This is apart from the power of  the Central Government to examine the validity of detention  acting suo motu on receipt of report under Section 3(2).   Under Section 11 \026 which is of immediate relevance in the  present case, the Central Government has the power to  revoke the orders made by (i) the State Government, (ii) an  officer specially empowered by the State Government and  (iii) an officer specially empowered by the Central  Government.  The order passed by an officer specially  empowered by a State Government can be revoked by the  State Government as well.  "The conferment of this power  on the Central and the State Governments does not,  however, detract from the power that is available to the  authority that has made the order of detention to revoke it".   This is ensured by the words "without prejudice to the  provisions of Section 21 of the General Clauses Act" in sub- section (1) of Section 11 (vide observations of the  Constitution Bench in paragraph 22 in the case of Kamlesh

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Kumar vs. Union of India, [(1995) 4 SCC 51]. Whether the right to make a representation to the  State or the Central Government under Section 11    becomes an integral part of Article 22(5) or it remains to be  a statutory safeguard only is the next aspect which merits  discussion.  Clause (5) of Article 22 does not, in express  terms, spell out the authority to whom the representation  has to be made.  Does it contemplate the representation  being made to and considered by the detaining authority?   Doubts in this respect have been cleared by the Constitution  Bench in Kamlesh Kumar’s case (supra) which is also a  case arising under COFEPOSA Act.  In that case, the stand  taken by the Union of India speaking through Additional  Solicitor General was that the use of the word ’a’ in singular  indicates that only one representation is to be made and  that representation is meant to be placed before the  Advisory Board which is the only authority contemplated  under the Constitution to consider such a representation.   This contention was unhesitatingly rejected by the Court and  it was observed that if such a restricted interpretation is to  be given to the expression "making a representation against  the order", the guarantee under clause (5) of Article 22 may  be rendered nugatory.  The Constitution Bench, having  noted that Article 22(5) does not specify the authority to  whom the representation is to be made, ruled thus : "Since the object and purpose of the  representation that is to be made by the person  detained is to enable him to obtain relief at the  earliest opportunity, the said representation has to  be made to the authority which can grant such  relief, i.e, the authority which can revoke the  order of detention and set him at liberty.  The  authority that has made the order of detention can  also revoke it.  This right is inherent in the power  to make the order.  It is recognized by Section 21  of the General Clauses Act, 1897 though it does  not flow from it.  It can, therefore, be said that  Article 22(5) postulates that the person detained  has a right to make a representation against the  order of detention to the authority making the  order.  In addition?, such a representation can be  made to any other authority which is empowered  by law to revoke the order of detention."

       Adverting to the cases beginning with S.K.Abdul  Karim [(1969) 1 SCC 433] in which it was held that the  representation should be considered by the State  Government  it was explained that all those cases related to  orders of detention made by the District Magistrate under  the Preventive Detention Act which specifically provides in  Section 7(1) that the authority making the order of  detention shall afford to the person detained the earliest  opportunity of making a representation against the order to  the ’appropriate government’.  It was observed that in those  cases, the court was not required to consider whether the  detaining authority should also consider the representation.   However, it was noticed that in Pankaj Kumar  Chakrabarty vs. State of W.B., (1969) 3 SCC 400, the  Constitution Bench did say that the detaining authority must  consider the representation when so made.  Approving the  majority view taken in Amir Shad Khan vs. L.  Hmingliana, (1991) 4 SCC 39, the legal position as to the  content of the right under Article 22(5) in the context of the  opportunity to make representation has been succinctly  stated thus in Kamlesh Kumar:

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"Article 22(5) must, therefore, be construed to  mean that the person detained has a right to  make a representation against the order of  detention which can be made not only to the  Advisory Board but also to the detaining authority,  i.e., the authority that has made the order of  detention or the order for continuance of such  detention, which is competent to give immediate  relief by revoking the said order as well as to any  other authority which is competent under law to  revoke the order for detention and thereby give  relief to the person detained.  The right to make a  representation carries within it a corresponding  obligation on the authority making the order of  detention to inform the person detained of his  right to make a representation against the order  of detention to the authorities who are required to  consider such a representation."

       We get even a clearer idea of the exposition of law in  this regard by referring to the three Judge Bench decision in  Amir Shad Khan’s case (supra) which was approvingly  cited by the Constitution Bench in Kamlesh Kumar’s case  (supra). The following passage makes the legal position  clear: "Thus on a conjoint reading of Section 21 of the  General Clauses Act and Section 11 of the Act it  becomes clear that the power of revocation can be  exercised by three authorities, namely, the officer  of the State Government or the Central  Government, the State Government as well as the  Central Government.  The power of revocation  conferred by Section 8(f) on the appropriate  Government is clearly independent of this power.   It is thus clear that Section 8(f) of the Act satisfies  the requirement of Article 22(4) whereas Section  11 of the Act satisfies the requirement of the  latter part of Article 22(5) of the Constitution.  The  statutory provisions, therefore, when read in the  context of the relevant clauses of Article 22 make  it clear that they are intended to satisfy the  constitutional requirements and provide for  enforcement of the right conferred on the detenu  to represent against his detention order.  Viewed  in this perspective it cannot be said that the power  conferred by Section 11 of the Act has no relation  whatsoever with the constitutional obligation cast  by Article 22(5)."

       Again, after referring to the observations in Razia  Umar Bakshi vs. Union of India, [(1980) 3 SCR 1398],  Ahmadi J. (as he then was) speaking for the majority  observed thus :- "This observation would show that the power of  revocation conferred by Section 11 of the Act has  a nexus with the right of representation conferred  on the detenu by Article 22(5) and, therefore, the  State Government when requested to forward a  copy of the representation to the Central  Government is under an obligation to do so."

       It is interesting to note that Punchi, J., though agreed  with the conclusion of the majority, was not inclined to hold  that Section 11 of COFEPOSA Act was part of the  constitutional guarantee under Article 22(5).  The learned

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Judge made the following crucial remarks:- "Have Section 11 of the Act repealed, it causes no  affectation to the constitutional guarantee under  Article 22(5) of the Constitution.  Correspondingly,  Section 11 of the Act derives no sustenance from  the said article.  Both operate in mutually  exclusive fields, though not as combatants."

       The reasoning of the  Constitution Bench in Kamlesh  Kumar’s case (supra) proceeded on similar lines as the  majority view in Amir Shad Khan’s case (supra).   The emerging result of the above discussion is that the  additional remedy or safeguard provided by Section 11 has  been projected into the fabric of Article 22(5) so as to be  absorbed into the ambit of safeguard provided by the latter  part of Article 22(5).  A provision like Section 11 may or  may not be necessary to give effect to that safeguard,  but,  once a provision like Section 11 finds its place in the  detention law, the detenu’s constitutional right to make  representation gets amplified.  His right extends to making  representations to all those authorities who can grant him  relief and the opportunity afforded to the detenu to submit  such representations thus becomes a part of the guaranteed  right under Article 22(5). That is how the ratio of the above  decisions has to be understood.  In fact, that is how it has  been understood by the detaining authority in the instant  case.  We find at the end of the order a note to the effect  that the detenu has the right to make representations to the  detaining authority, the Central Government and COFEPOSA  Advisory Board against the detention.  The addresses of the  said authorities were also mentioned. What then is the width and amplitude of the power  exercisable under Section 11 by the Central/State  Governments to revoke the order of detention?  Are there  inherent limitations in such power? This question assumes  some relevance in resolving the controversy arising in the  present case. The decisions of this Court starting from  Pankaj Kumar Chakrabarthy’s case [(1969) 3 SCC  400] make it clear that there is qualitative difference  between the manner of disposal of representation by the  Government on the receipt of the report from the Advisory  Board or otherwise and the manner of consideration by the  Advisory Board.  It was observed in the above case thus:  "whereas the Government considers the representation to  ascertain whether the order is in conformity with its power  under the relevant law, the Board considers such  representation from the point of view of arriving at its  opinion whether there is sufficient cause for detention."   These observations made in a series   of cases were in      the context of Preventive Detention Act where the order of  detention is passed by the District Magistrate who in turn  has to afford to the detenu the earliest opportunity of  making representation to the appropriate Government.   However,   in K.M.Abdulla Kunhi vs. Union of India  [(1991) 1   SCC 476] the Constitution Bench while dealing  with the case under COFEPOSA adopted the same line of  approach in regard to the powers of the Government in  considering the representation.  While pointing out that the  obligation of the Government to afford to the detenu an  opportunity to make representation and to consider such  representation is distinct from the obligation to refer the  case of detenu along with the representation to the Advisory  Board, it was observed thus: "The Government considers the representation to  ascertain essentially whether the order is in

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conformity with the power under the law.  The  Board, on the other hand, considers the  representation  and the case of the detenu to  examine whether there is sufficient cause for  detention.  The consideration by the Board is an  additional safeguard and not a substitute for  consideration of the representation by the  Government.  The right to have the representation  considered by the Government is safeguarded by  Clause (5) of Article 22 and it is independent  of  the consideration of the detenu’s case and his  representation by the Advisory Board under  Clause (4) of Article 22 read with Section 8(c) of  the Act."

Thus, the principle is well settled that the Government  in exercise of the power under Section 11 does not consider  the question of sufficiency or adequacy of the grounds but it  would only see whether the detention order is within the  parameters of the power conferred under the statute. In  other words, it will not review the case as if it is an original  or appellate authority. That is why the power under     Section 11 has been described as supervisory in nature as  pointed out by G.P. Mathur, J. taking support from the  observations in Sabir Ahmad  vs.  Union of India  [(1980) 3 SCC 295  and Sat Pal  vs. State of Punjab  [(1982) 1 SCC 12].  Obviously, this supervisory power  cannot be equated to the subjective satisfaction of the  detaining authority or the power of the Advisory Board to  examine whether there is sufficient  material for detention.  The range of consideration by the Advisory Board is thus  wider. The proposition that the power conferred under    Section 11 is supervisory does not however mean that the  exercise of power is purely discretionary or that the process  of consideration could be casual and superficial. No doubt,  as laid down in Abdulla Kunhi’s case (vide para 19), there  need not be a speaking order in disposing of such  representation. However, the Government has a duty to  consider the representation in proper perspective in order to  see whether the order of detention is in conformity with law.  The Government, should, quite apart from the points raised  in the representation, apply its mind broadly to the question  whether the detention is in accordance with law. For  instance, if the material relied upon  by the detaining  authority does not ex facie establish a nexus with the pre- conditions for the exercise of the power or the conclusions of  the detaining authority are found to be wholly perverse  or  the prescribed procedure has not been followed by the  detaining authority, the appropriate Government acting  under Section 11 has a duty to interfere and revoke the  order of detention. In order to achieve this end, the Central  Government must necessarily have regard to the  representation, the report received from the State  Government, the detention order and the material relied  upon in the detention order or referred to in the  representation. The exercise of the power under Section 11  should not be a mere formality or a farce. Care and vigilance  should inform the action of the Government while  discharging its supervisory responsibility. As observed in  Haradhan Saha’s case [(1975) 3 SCC 198] and  reiterated in K.M.Abdulla Kunhi’s case, what is required is  "real and proper consideration".  The following observations  in Abdul Karim,  are quite apposite in this context : "\005But it is a necessary implication of the language

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of Article 22(5) that the State Government should  consider the representation made by the detenu  as soon as it is made, apply its mind to it and, if  necessary, take appropriate action. In our opinion,  the constitutional right to make a representation  guaranteed by Article 22(5) must be taken to  include by necessary implication the constitutional  right to a proper consideration of the  representation by the authority to whom it is  made. The right of representation under Article  22(5) is a valuable constitutional right and is not a  mere formality."\005

The same proposition has been highlighted by  Rajendra Babu, J. by observing that "there should be full  and independent application of mind". The next and most relevant point to be considered in  the present case is whether in the absence of translated  copies of the relevant documents referred to in the detention  order, there could have been proper and effective  consideration by the Central Government. To put it in other  words, whether the decision making process under      Section 11 of the Act is vitiated by non application of mind  by reason of the fact that the translated copies of the  documents were not available with the concerned officials of  the Government who may be unacquainted with the  particular language? In our view, the question whether any  or all of the documents which formed the basis of the  detention order should be before the Central Government or  not, depends on the facts of each case. There can be no  hard and fast rule that the appropriate Government called  upon to take a decision under Section 11 should necessarily  have copies of all the documents relied upon by the  detaining authority with the translated version thereof. In  the context of the guarantee under Article 22(5), it was laid  down that "if the documents which form the basis of the  order of detention were not served on the detenu along with  the grounds of the detention, in the eye of law, there would  be no service of the grounds of detention and that  circumstance would vitiate the detention and make it void ab  initio (vide observations in M. AhmedKutty Vs. U.O.I.  [(1990) 2 SCC 1] and Shalini Soni Vs. U.O.I. [(1980) 4  SCC 544]). It was also clarified in a series of decisions that  it is unnecessary to furnish copies of documents to which  casual or passing reference is made and which are not relied  upon by the detaining authority (vide LMS Ummu Saleema  Vs. B.B. Gujaral [(1981) 3 SCC 317 etc). We are of the  view that the proposition laid down by this Court that the  copies of translated documents  forming the basis of the  detention order should be furnished to the detenu in order to  give effect to the guarantee enshrined in Article 22(5)  cannot be imported while dealing with the question in the  context of exercise of power of revocation under Section 11  on the basis of representation or otherwise. The question  whether there was due consideration of representation has  to be judged by general principles of administrative law.  There is no  constitutional requirement\027express or  necessarily implied that the authority considering the  representation should have before it all the documents  referred to in detention order with translated version  thereof. But, the availability or non-availability of such  documents with the empowered authority under Section 11  will only have bearing on the manner of consideration of  representation, which in turn depends on the facts of a  particular case. The endeavor of the Court in this regard is

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only to assess whether there was fair and proper  consideration by the Government by applying its mind to the  crucial aspects warranting its attention. The necessity or  otherwise of having copies of documents should be viewed  in that light. The Court has to be satisfied that there was  due application of mind to the crucial aspects. The points  raised by the detenu in the representation would naturally  assume importance, as pointed out by Mathur, J. though the  Government ought not to confine itself to the points  highlighted in the representation alone. If, for the purpose of  appreciating the points in the representation, the documents  are required to be seen, naturally, the Central Government  will be failing in its duty if it does not call for the documents  with translation. For instance, the detenu may say that a  particular statement relied upon in the detention order is  something different and it was misread. The document has  to be necessarily seen to appreciate that point. That apart,  the Government shall have a clear idea of the nature of  incriminating material against the detenu. If the detention  order does not spell out the details thereof, but only makes  a bare reference, here again, the need to peruse the crucial  documents or statements so as to judge the validity of  detention does arise; otherwise the Central Government will  not be fulfilling the supervisory responsibility cast on it in  the manner expected of it. However, we hasten to add that  there can be no rule similar to the one laid down in the  context of detenu’s right under the first part of Clause (5) of  Article 22. The question whether there could have been due  application of mind and proper consideration of  representation by the Government in the absence of crucial  documents/translated copies thereof has to be decided on  case to case basis. The approach cannot be abstract and  unrealistic. No inflexible rule of general application can be  laid down. However, we would like to make it clear that if in  a given case, the perusal of certain documents becomes  necessary, it is no answer to say that the translation  involves delay. It is trite to say that where there is  reasonable explanation for delay, the detention does not get  invalidated. Now, let us examine the factual situation in the instant  case. A perusal of the detention order would reveal that the  statements of Anodiyal Mammu, who was intercepted at the  airport and that of the detenu and the statements of all  others recorded under Section 108 of Customs Act as       well as the subsequent letters retracting from the earlier  statements were referred to in the detention order  elaborately and exhaustively.  The statements are almost  verbatim extracted in the detention order. We find         them at pages 29 to 49 of the Paper Book.  The contents of  the letters received from the Assistant Commissioner of  Customs and the counsel for A. Mammu have also been  referred to in paras 10 and 17. When the detention        order itself makes an elaborate reference to the  statements/letters of concerned persons which were either  relied upon or rejected by the detaining authority in the  detention order, the authority exercising the power under  Section 11 would, in no way be handicapped in dealing with  the issue in general and the representation in particular.     In the representations made by the petitioner (detenu’s  wife)\027the English version of which were on the record of  Central Government, the plea taken was that the statements  were obtained under threat and coercion and that is         why they retracted from the previous statements. Of course,  certain other grounds were urged which are not relevant    

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for the purpose of examining the issue with which we are  concerned. On the facts alleged or points raised, there was  really no need to have access to any of the documents  referred to in the detention order. Having regard to this  factual situation, we do not think that the Central  Government should necessarily have the translated copies   of the documents referred to and relied upon in the  detention order and that the absence of such documents    has vitiated the consideration of the representation, nor    can it be said that there was no application of mind on the  part of the Central Government for the simple reason that  the translated copies of the documents were not       available before it. The physical availability of such  documents or translated version thereof, would have made  no difference as regards the disposal of representation  or  the consideration of the question whether the detention was  in conformity with law. As already stated, the very perusal   of the detention order would give a clear picture of the  incriminating material relied upon by the detaining authority.  In the circumstances, to insist on the perusal of original or  true copies of statements and other documents referred to  in the detention order would amount to insisting on an  empty formality. The constitutional guarantee does not go to  that extent. Thus, the only contention raised before us touching on  the validity of detention order has to be negatived. The writ  petition and Criminal Appeal are therefore dismissed.