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PETITIONER: KUBIC DARIUSZ

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT18/01/1990

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) RAY, B.C. (J)

CITATION:  1990 AIR  605            1990 SCR  (1)  98  1990 SCC  (1) 568        JT 1990 (1)    38  1990 SCALE  (1)55

ACT:     Conservation  of  Foreign  Exchange  And  Prevention  of Smuggling  Activities  Act. Section 9 Detention  of  foreign national  for smuggling activities--Communication of  ground in a language understood by him--Municipal law to be  inter- preted in accordance with State’s international legal  obli- gations.      Constitution  of  India 1950:  Article  22(5)--Detention Order-Detenu to be afforded opportunity to make  representa- tion--Effective  knowledge of grounds of detention  and  the prejudicial  acts,  which the authorities attribute  to  him must  be communicated to him--Non-communication  of  grounds violatire of Article 22(5) and mandate of the Constitution.

HEADNOTE:     Mr.  Kubic  Dariusz a Polish national  was  arrested  on 29.4.89 by the Customs Department on the ground that he  was in  possession of foreign gold weighing about 70  tolas.  On 30.4.89 he was produced before the Chief Judicial Magistrate who remanded him to jail custody till 15th May 89. His  bail application  was rejected by the Chief Judicial  Magistrate. While  still  in  custody he was served  with  the  impugned Detention Order dated 16.5.89 under the COFEPOSA Act  along- with  the  grounds of detention. On 24.5.89 he  was  granted bail  by the Calcutta High Court but the same could  not  be availed  of because of the detention order which  the  peti- tioner  challenged  by preferring the Writ  Petition  before this Court.     The  detention order is assailed on two grounds,  namely that the detenu did not know English wherefore he was unable to  read  and  be informed of the grounds  of  detention  to enable him to defend himself and secondly that the represen- tation  submitted by him through the Superintendent of  Jail to  Central Advisory Board, COFEPOSA was neither  considered nor acted upon or replied to at all by the detaining author- ity  wherefore the detention order was liable to be  quashed as violative of Article 22(5) of the Constitution of India. On behalf of the respondent it is contended that the  detenu was 99 conversant  with the English language as would  appear  from

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his  replies  to the questions put to him in the  course  of interrogation. Hence there was no question of furnishing the grounds  to  him  in Polish language.  Refuting  the  second contention  it was stated that after hearing the detenu  the Advisory Board found sufficient cause for his detention.  It was  also urged by the respondent that the so called  repre- sentation of the detenu dated 13.6.89 was not a  representa- tion  to  the appropriate Govt. against  the  detention  and could not be treated as such.     Allowing  the Writ Petition and setting at  liberty  the detenu, this Court,     HELD:  Continued detention of the detenu has  been  ren- dered illegal by non-consideration of his representation  by the  appropriate government according to law,  resulting  in violation  of  Article 22(5) of the Constitution  of  India. [114F]     Where  the grounds are couched in a language  which  was not known to the detenu, unless the contents of the  grounds were  fully explained and translated to the detenu it  would tantamount to not serving the grounds of detention and would thus  vitiate the detention ex facie. It is the settled  law that  the detention order, the grounds of detention and  the documents referred to and relied upon are to be communicated to the detenu in a language understood by him so that he can make  effective  representation against  his  detention.  To ascertain whether the detenu knew the language in which  the grounds were served or was reigning ignorance, it is open to Court  to consider the circumstances and facts of the  case. The  detenu  is not required to write an essay or  pass  any language  test. A working knowledge of English enabling  him to  understand  the  grounds would be enough  for  making  a representation.  He could very well send his  representation in the language known by him. [103G; 106E-H; 107A-E]     No  hesitation there is in the instant case  in  holding that  the  detenu understood the English Language,  had  the working  knowledge of it and was reigning ignorance  of  it. [109E]     Though the representation was addressed to the  Chairman Central  Advisory Board, the same was forwarded by the  Jail authorities and it must be taken to have been a  representa- tion to the appropriate government which was to consider  it before  placing  it before the Advisory Board and  the  same having been not done, Article 22(5) of the Constitution  has to be held to have been violated. Delay in disposing of 100 the  representation  when  inordinate  and  unexplained  the detention  would  be  rendered bad and the  detenu  must  be ordered to be released forthwith. [111A-B; 110E]     Preventive  detention of a foreign national who  is  not resident of the country involved an element of international law  and human rights and the appropriate authorities  ought not  to be seen to have been oblivious of the  international obligation  in  this regard. The  universal  declaration  of human rights include the right to life, liberty and security of person, freedom from arbitrary arrest and detention;  the right to fair trial by an independent and impartial tribunal and the right to presume to be innocent until proved guilty. [112G-H; 113A]     When  an act of preventive detention involves a  foreign national, though from the national point of view the munici- pal law alone counts in its application and  interpretation, it  is  generally a recognised principle in  national  legal system that in the event of doubt the national rule is to be interpreted  in  accordance with the  States’  international obligations. [113A-B]

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   The fundamental rights guaranteed under our Constitution are in conforming line with those in the Declaration and the Covenant  on  Civil and Political Rights and  the  Covenant, Economic,  Social  and Cultural Rights to  which  India  has become  a party by ratifying them. Crimen  Trahit  personam. The crime carries the person. Smuggling may not be  regarded as such a crime. [113C-D]     There may, therefore, be cases where while a citizen and resident of the country deserves preventive detention  apart from criminal prosecution, in the case of a foreign national not  resident of the country he may not be justifiably  sub- jected  to  preventive detention in the event  of  which  no international  legal assistance is possible unlike in  cases of criminal prosecution and punishment. [114D-E]     Harikisan  v. The State of Maharashtra, [1962] 2  Suppl. SCR  918; Razia Umar Bakshi v. Union of India, [1980] 3  SCR 1398;  Nainmal Partap Mal Shah v. Union of India,  [1980]  4 SCC 427; Surjeet Singh v. Union of India, [1981] 2 SCC  359; Lallubhai Jogibhai Patel v. Union of India & Ors., [1981]  2 SCC 427; Hadibandhu Das v. District Magistrate, [1969] 1 SCR 227;  [brahim Ahmad Batti v. State of Gujarat, [1983] 1  SCR 540;  Prakash Chandra Mehta v. Commissioner  and  Secretary, Government of Kerala & Ors., [1985] 3 SCR 697; Smt.  Shalini Soni  v.  Union of India, [1981] 1 SCR 962; John  Martin  v. State of West 101 Bengal, [1975] 3 SCR 211; Chandroo Kundan v. Union of India, AIR 1980 SC 1123; Pabitra N. Rana v. Union of India,  [1980] 2  SCR 869; Saleh Mohammed v. Union of India, [1980]  4  SCC 428;  Kamla  Kanyalal Khushalani v.  State  of  Maharashtra, [1981]  1 SCC 748; Rattan Singh v. State of Punjab  &  Ors., [1981] 4 SCC 481; Kirit Kumar Chaman Lal Kundaliya v.  Union of  India  & Ors., [1981] 2 SCC 426; Santosh  Anand’s  case, [1981]  2 SCC 420; B. Sundar Rao & Ors. v. State of  Orissa, [1972] 3 SCC 11; Vimalchand Jawantraj Jain v. Shri Pradhan & Ors., [1979] 4 SCC 401; Jolly George Verghese v. The Bank of Cochin, AIR 1980 SC 470 and Rex v. Halliday, [1917] AC  268, referred to.

JUDGMENT:     ORIGINAL  JURISDICTION: Writ petition (Criminal) No  359 of 1989. (Under Article 32 of the Constitution of India).     Dr. Shankar Ghosh, Ashok Ganguli, Md. Nizamuddin and Ms. Mridula Ray, for the Petitioner.     V.C.  Mahajan, A. Subba Rao and P. Parmeshwaran for  the Respondents. The Judgment of the Court was delivered by     K.N.  SAIKIA, J. Mr. Kubic Dariusz, a  Polish  national, holding  a  Polish passport arriving Calcutta  by  air  from Singapore  via Bangkok was arrested on 29.4.1989 under  sec- tion 104 of the Customs Act, by the officers of the  Customs Department attached to Calcutta Airport, on the ground  that he  was  carrying in his possession  foreign  gold  weighing about  70  tolas. On 30.4.1989, he was produced  before  the Chief Judicial Magistrate, Barasat who remanded him to  jail custody till 15th May, 1989. He was interrogated by Intelli- gence officer when he made, corrected and signed his  state- ments  in English. His application for bail was rejected  by the  Chief Judicial Magistrate. While still in  custody,  he was served with the impugned detention order dated 16.5.1989 passed  under  section 3(1) of the Conservation  of  Foreign Exchange and Prevention of Smuggling Activities Act, herein-

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after  referred  to  as ’the COFEPOSA  Act  along  with  the grounds  of detention. On 24.5. 1989 he was granted bail  by the Calcutta High Court but the same could not be availed of because of the detention order which is now being challenged in this petition. 102     The detention order was passed with a view to preventing the  detenu  from smuggling goods; and it  stated  that  the detaining authority, namely, the Additional Secretary to the Government  of India in the department of Revenue,  Ministry of  Finance,  was satisfied that the detenu  was  likely  to smuggle goods into and through Calcutta Airport which was an area  highly vulnerable to smuggling as defined in  Explana- tion  1 to section 9(1) of the COFEPOSA Act. In the  grounds of  detention  it was stated, inter alia, that  arriving  at Calcutta  by  Thai Airways the detenu opted  for  the  green Channel  meant  for the passengers not having  any  dutiable and/or prohibited goods for customs clearance and  proceeded towards the exit gate; that he declared that he did not have any  gold  with him, but on search 7 gold bars  weighing  70 tolas  valued approximately at Rs.2,71,728 deftly  concealed between  the inner soles of the left and right sports  shoes in  specially  made  cavities were recovered;  that  in  his voluntary  statement before the customs officer he  admitted the  recovery; that he had been able to learn English as  he was  with some English people during the period of  2nd  Ke- dardham Expedition or Kedarnath Dham Expedition in the  year 1987 and he was also learning English when he was in  France in  the  year 1985; that scrutiny of his  passport  revealed that  he visited Delhi on 6.2.1989 & 21.2. 1989,  Trichi  on 22.4.1989  and  Calcutta on 29.4.1989; that he  admitted  to have been in India in 1986, 1987 & 1988; and that on  chemi- cal  tests  the sample was found to be containing  99.9%  of gold.        Shankar Ghosh, the learned counsel for the petitioner assails the detention order primarily on two grounds,  name- ly,  that the detenu knew only the Polish language  and  did not  know  English wherefore he was unable to  read  and  be informed of the grounds of detention given in English and he was not given the grounds of detention in a language  under- stood by him so as to enable him to defend himself; and that the  representation  submitted by him  was  not  considered, acted  upon or replied to at all by the detaining  authority wherefore  the detention order was liable to be  quashed  as violative of Article 22(5) of the Constitution of India.     Mr.  V.C. Mahajan, the learned counsel for the  respond- ents  emphatically refutes the first ground submitting  that the detenu was conversant with the English language as would appear  from  the  answers to the questions put  to  him  in course of interrogation by the Intelligence authorities  and this  was  clearly stated in the grounds of  detention,  and consequently, there arose no question of his being furnished with the grounds of detention in Polish and not in English 103 language. Refuting the second submission Mr. Mahajan submits that the so called representation dated 13.6.1989  addressed to  the Chairman, Central Advisory Board,  COFEPOSA  through the Superintendent, Central Jail, Dum Dum, Calcutta was duly sent to and received by the Chairman and the detenu appeared before  the Advisory Board which, after hearing the  detenu, found  sufficient  cause for his detention  and  there  was, therefore, no question of the representation being separate- ly dealt with by the Central Government. Besides, Mr.  Maha- jan submits, had the detaining authority accepted the state- ment  that the detenu did not know English, they would  have

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been in a trap. Counsel would also submit that the so called representation  dated 13.6.1989 was not a representation  to the  appropriate Government against the detention and  could not be treated as such.    Taking  up  the first submission, we  find  that  Article 22(5)  of  the C of India provides that when any  person  is detained inpursuance of an order made under any law  provid- ing for preventive detention, the authority making the order shall, as soon as may be,  I communicate to such person  the grounds  on which the order has been made and  shall  afford him  the  earliest opportunity of  making  a  representation against the order. It is settled law that the  communication of the grounds which is required by the earlier part of  the clause  is for the purpose of enabling the detenu to make  a representation,  the  right to which is  guaranteed  by  the latter part of the clause. A communication in this  context, must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on  which the  order of detention is passed, that is, of the  prejudi- cial  acts  which the authorities attribute to him.  Such  a communication  would be there when it is made in a  language understood  by the detenu, as was held in Harikisan  v.  The State of Maharashtra, [1962] 2 Suppl. SCR 918. In Razia Umar Bakshi  v. Union of India, [1980] 3 SCR 1398, Fazal Ali,  J. held  that  the service of the grounds of detention  on  the detenu  was a very precious constitutional right  and  where the  grounds were couched in a language which was not  known to the detenu, unless the contents of the grounds were fully explained and translated to the detenu, it would  tantamount to  not serving the grounds of detention to the  detenu  and would thus vitiate the detention ex-facie.     In  Nainmal Partap Mal Shah v. Union of India, [1980]  4 SCC 427: AIR 1980 SC 2129 the detenu stated that he did  not know  the English language and, therefore, could not  under- stand  the grounds of detention, nor he was given a copy  of the grounds duly translated in 104  vernacular language. In the counter affidavit the detaining authority  suggested that as the detenu had signed a  number of  documents  in English, it must be presumed that  he  was fully  conversant with English. Rejecting the contention  it was  held  by  this Court that merely because  he  may  have signed some documents, it could not be presumed, in  absence of cogent material, that he had working knowledge of English and under those circumstances there had been clear violation of  the constitutional provisions of Article 22(5) so as  to vitiate  the  order of detention. Thus what  was  considered necessary was a working knowledge of English or full  expla- nation  or translation. In Surjeet Singh v. Union of  India, [1981]  2 SCC 359: AIR 1981 SC 1153, the  petitioner,  being served  the  detention  order and the  grounds  in  English, contended  that English was not a language which  he  under- stood  and  that this factor rendered it necessary  for  the grounds of detention to be served on him in Hindi which  was his  mother tongue and that the same having not  been  done, there  was in law no communication of such grounds  to  him; and it was held that under those facts and circumstances  it had  not been shown that the petitioner had the  opportunity which the law contemplated in his favour of making an effec- tive representation against his detention, which was, there- fore, illegal and liable to be set aside.     Where  it  is stated that the  detaining  authority  ex- plained  the grounds of detention to the detenu,  Court  in- sists  on adequate proof in the absence of  any  translation being  furnished. Thus in Lallubhai Jogibhai Patel v.  Union

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of  India & Ors., [1981] 2 SCC 427, the detenu did not  know English  but the grounds of detention were drawn up in  Eng- lish  and the detaining authority in affidavit  stated  that the Police Inspector while serving the grounds of  detention fully  explained  the  grounds in Gujarati  to  the  detenu. Admittedly, no translation of the grounds of detention  into Gujarati was given to the detenu. It was held that there was no  sufficient compliance with the mandate of Article  22(5) of  the  Constitution  which required that  the  grounds  of detention must be communicated to the detenu.  "Communicate" is  a strong word. It requires that sufficient knowledge  of the basic facts constituting the grounds should be  imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purpose- ful  and effective representation. If the grounds  are  only verbally  explained to the detenu and nothing in writing  is left with him in a language which he understands, then  that purpose  is  not served, and the constitutional  mandate  in Article 22(5) is infringed. This follows from the  decisions in Harikisan v. State of Maharashtra, (supra) and Hadibandhu Das v. District Magistrate, [1969] 1 SCR AIR 1969 SC 43. 105     Mr. Ghosh relies on the decision in Ibrahim Ahmad  Batti v. State of Gujarat,  [1983]  1 SCR 540, wherein the  detenu under the COFEPOSA Act was a Pakistani national to whom  the detention order and the grounds of detention were served  in English and he contended that as he did not know English and the grounds of detention and the document relied on were not furnished in Urdu within the statutory period the  detention was  bad. Urdu translation of all the documents  and  state- ments referred to in the grounds for reaching the subjective satisfaction had not been supplied to the detenu in time and translations of quite a few of such documents and statements had not been supplied at all. The petitioner’s mother tongue seemed to be Urdu and a little knowledge of English figured. It  was  evident that the petitioner knew  English  figures, understood English words written in capital letters and  was also  conversant  with  talking in Hindi  and  Gujarati  and therefore it was argued for the detaining authority that the non-supply of Urdu translation of the documents could not be said  to  have  caused prejudice to the  petitioner  in  the matter of making representation against his detention.  This Court held that the Explanation was hardly satisfactory  and could  not  condone the non-supply of  Urdu  translation  of those documents. In that case with the assistance of counsel of  either  side the Court had gone through  many  of  those documents and statements and for the Court it was not possi- ble  to  say that most of them were  statements  of  accused containing figures in English with English words written  in capital  letters. A large number of documents were in  Hindi and Gujarati and were material documents which had obviously influenced  the mind of the detaining authority in  arriving at  the  subjective  satisfaction and those were  all  in  a script or language not understood by the detenu and,  there- fore, it was held that the non-supply of Urdu translation of those  documents  had clearly  prejudiced  the  petitioner’s right  against his detention and hence the  safeguards  con- tained in Article 22(5) was clearly violated.     In the instant case the basis of the statement that  the detenu  did  not know English is  his  representation  dated 13.6.1989, that is, nearly one month after his detention. An English rendering of the representation is found at page  75 of the Writ Petition which is attested to have fully  corre- sponded to its original in Polish language. It is signed  by the detenu and is addressed to the Chairman, Central Adviso-

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ry Board (COFEPOSA), High Court of Delhi, through the Super- intendent, Central Jail, Dum Dum, Calcutta. It reads:       "Ref:  Govt. of India, Finance Department and  Revenue Department Order No. F No. 673/322/89-CUS-VIII dated  16.05. 1989 106              SUPREME COURT REPORTS   [1990] 1 S.C.R.      Sub: Representation against my detention under COFEPOSA Respected Chairman, 1. I am a Polish national.      2.  I  do  not know any other  language  except  Polish language.      3. I cannot speak, write and read English language  and do not know small English letters. 4. I know how to write my name in Block letters.      5.  I  have received all the documents  concerning  the above  mentioned case in English language and for  the  fact that  I  do  not know that language the  documents  were  so complicated for me to understand.      6.  In view of the above facts, I kindly  request  your goodself to provide me with the order of detention  together with  the grounds of detention in my language  (Polish  lan- guage) so that I can effectively present my defence."     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  represen- tation  against  his detention, the question  arises  as  to whether the courts have necessarily to accept what is stated by the detenu or it is 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 grounds 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  circum- stances 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  determina- tion.  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 107 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 reigning ignorance of the language  or he  has such working knowledge as to understand the  grounds of detention and the contents of the documents furnished.     In  the  instant case we find that  when  the  detention order  and the grounds of detention were served  the  detenu received  them and acknowledged the receipt thereof,  as  it appears from the records, putting his signature in  English. He  did not complain that the grounds of detention were  not understood by him. On the other hand in the very grounds  of detention  it was stated that in course of interrogation  he answered the questions in English including the questions as to how he happened to learn English. The gist of his answers in  this regard was also given in the grounds of  detention. We have perused the statements and find that those contained number of informations peculiar to the detenu himself  which could not have been communicated by him to the interrogators unless  he knew the English language. We also find  that  in several places he corrected the statements putting appropri-

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ate  English  words and signing the corrections.  While  the detention  order was passed on 16-5-1989 his  representation was  admittedly dated only 13-6-1989. In the  meantime  bail petitions were moved on his behalf before the Chief Judicial Magistrate and the High Court. There is nothing to show that he did not give instructions to his counsel. After all,  the detenu  is not required to write an essay or pass  any  lan- guage  test. A working knowledge of English enabling him  to understand  the  grounds  would  be  enough  for  making   a representation.  He could very well send his  representation in the language known by him.     In Parkash Chandra Mehta v. Commissioner and  Secretary, Government  of Kerala & Ors., [1985] 3 SCR 697,  Venilal  D. Mehta,  his daughter Miss Pragna Mehta and son Bharat  Mehta were detained under the COFEPOSA Act by an order dated  19th June,  1984 and the detention order was challenged  in  this Court  under Article 32 of the Constitution of  India.  They were alleged to have been in possession of 60 gold  biscuits of  foreign  origin. After their arrest the father  and  his daughter  were taken to the Central Excise and  Customs  De- partment,  Cochin  where  statements on  their  behalf  were written  in English by the daughter. The father  Venilal  D. Mehta  put his signature in English as Balvant Shah but  the daughter  told the officers concerned that the correct  name of her father was Venilal Mehta. In the writ petition it was the  case of the father that he could not understand,  read, speak  or  write  English but could only sign  his  name  in English. He was served 108 with  the grounds of detention in English language  on  20th June, 1984. A Hindi translation of the grounds of  detention was served on 30th June, 1984. On 27th May, 1984 the  father made a representation in Gujarati to the detaining authority praying  that  he  was unable to read and  write  either  in English or Hindi or ’Malayalam and the grounds of  detention may be given to him duly translated in Gujarati. In Court it was  contended that the order and grounds should  have  been communicated to the detenu in the language or languages they understood  and  Venilal  Mehta  understood  nothing  except Gujarati. He did not understand English or Hindi or  Malaya- lam. The Hindi translation was admittedly furnished beyond a period  of  5  days and no  exceptional  circumstances  were stated to exist. Following Harikisan v. State of Maharashtra (supra) and considering the definite case of Venilal  Mehta, this Court observed that the facts revealed that the  detenu Venilal Mehta was constantly in the company of his  daughter as well as son and both of them knew English very well.  The father  signed a document in Gujarati which was  written  in English  and which was his mercy petition in which  he  com- pletely accepted the guilt of the involvement in  smuggling. That document contained a statement--"I myself am  surprised to  understand what prompted me to involve in such  activity as  dealing  in Imported Gold." On those facts  and  circum- stances this Court observed: "There is no rule of law that common sense should be put  in cold storage while considering Constitutional provisions safeguards  against misuse of powers by  authorities  though these  Constitutional  provisions should  be  strictly  con- strued.  Bearing in mind this salutary principle and  having regard to the conduct of the detenu Venilal Mehta especially in the mercy petition and other communications, the  version of  the detenu Venilal in feigning lack of any knowledge  of English  must be judged in the proper perspective.  He  was, however,  in  any event given by 30th June, 1984  the  Hindi translation  of the grounds of which he  claimed  ignorance.

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The  gist  of the annexures which were  given  in  Malayalam language  had been stated in the grounds. That he  does  not know  anything except Gujarati is merely the ipse  dixit  of Venilal Mehta and is not the last word and the Court is  not denuded  of its powers to examine the truth. He goes to  the extent  that  he signed the mercy petition not  knowing  the contents, not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a 109 time  when he was under arrest, his room had been  searched, gold biscuits had been recovered from him. Court is not  the place where one can sell all tales. The detaining  authority came to the conclusion that he knew both Hindi and  English. It  had been stated so in the affidavit filed on  behalf  of the respondent. We are of the opinion that the detenu  Veni- lal Mehta was merely reigning ignorance of English."     After  referring to the decisions in Hadibandhu  Das  v. District Magistrate, Cuttack & Anr. (supra), Nainmal  Partap Mal  Shah v. Union of India & Ors. (supra), and  Ibrahim  v. State of Gujarat & Ors. (supra) this Court in Prakash  Chan- dra  Mehta (supra) rejected the contention that the  grounds of  detention  were not communicated to Venilal Mehta  in  a language understood by him.     Considering  the facts and circumstances of the  instant case  and  in view of the fact that no  objection  regarding non-communication of the grounds in a language understood by the detenu was made within the statutory period for furnish- ing  the  grounds and the fact that the  representation  was beyond  the  statutory  period, almost  a  month  after  the grounds  were served, along with the detenu’s statements  as to  how he learnt English, we have no hesitation in  holding that the detenu understood the English language, had working knowledge of it and was reigning ignorance of it, and  there was no violation of Article 22(5) of the Constitution on the ground of non-communication of the grounds of detention in a language  understood  by him. The first  submission  of  the detenu has, therefore, to be rejected.     Coming  to the second submission, in the  representation dated  13.6.  1989 the detenu clearly requested that  he  be provided  with  the  order of detention  together  with  the grounds  of detention in his language (Polish  language)  so that he could effectively present his defence. He called  it a "representation" against his detention under COFEPOSA Act. Admittedly,  this representation was not disposed of by  the appropriate Government and, indeed, has not been disposed of or acted upon till today. Mr. Mahajan submits that it having been  addressed to the Chairman, Central Advisory  Board  it need not have been dealt with by the Central Government  and it  could not be regarded as representation at all  and  the Government smarted out of the trap by not admitting that the detenu  did not know English. We are not inclined to  accept this  submission.  Admittedly the  representation  was  sent through the Superintendent, Central Jail, Dum Dum, 110 Calcutta.  There  was no scope to hold that  what  has  been stated to be ’representation’ was not representation at  all inasmuch  as it only requested for translated copies of  the grounds  of  detention and the annexed documents  in  Polish language. Supply of translated copies would have surely  not affected  the  detention order ipso facto. In  Smt.  Shalini Soni v. Union of India, AIR 1981 SC 431: 1981(1) SCR 962, it has  been  held  that under Article 22(5)  no  proforma  for representation has been prescribed and a request for release of the detenu, therefore, has to be deemed a representation;

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so also a request to supply copies of documents etc.  Oppor- tunity  to make a representation comprehends a  request  for supply of translated copies. Therefore, the detenu’s ’repre- sentation’  asking for copies of documents must be  held  to have  amounted to a representation and it was  mandatory  on the  part of the appropriate Government to consider and  act upon  it  at the earliest opportunity and failure to  do  so would  be  fatal to the detention order. There  has  been  a catena of decisions of this Court that the representation of the detenu must be considered by the appropriate  Government and  Article  22(5) does not say which is the  authority  to whom  representation shall be made or which authority  shall consider it. But it is indisputable that the  representation may be made by the detenu to the appropriate Government  and it  is the appropriate Government that has to  consider  the representation as was reiterated in John Martin v. State  of West Bengal, AIR 1975 SC 775:1975 (3) SCR 211.     It is settled law that delay in disposing the  represen- tation  when inordinate and unexplained the detention  would be bad and the detenu must be ordered to be released  forth- with.  Chandroo Kundan v. Union of India, AIR 1980 SC  1123; Pabitra  N. Rana v. Union of India, AIR 1980 SC 798:  (1980) (2)  SCR 869, Saleh Mohammed v. Union of India, AIR 1981  SC 111:  (1980) 4 SCC 428; Kamla Kanyalal Khusahalani v.  State of  Maharashtra, [1981] 1 SCC 748 are some of the  decisions settling this proposition of law.     In Rattan Singh v. State of Punjab & Ors., [1981] 4  SCC 481,  it  was held that section 11(1) of  the  COFEPOSA  Act confers upon the Central Government the power of  revocation of an order of detention made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to  the Central  Government  against  the order  of  detention.  The failure  of  the Jail Superintendent to either  forward  the representation  to the Government concerned or to have  for- warded  the same to the State Government with a request  for their onward transmission to the Central Government in  that case was held to have 111 deprived the detenu of his valuable right to have his deten- tion  revoked by the Government. The continued detention  of the  detenu was. therefore, held illegal and the detenu  was set free. In the instant case though the representation  was addressed  to the Chairman, Central Advisory Board the  same was  forwarded by the Jail authorities and it must be  taken to have been a representation to the appropriate  Government which was to consider it before placing it before the  Advi- sory  Board and the same having not been done Article  22(5) has to be held to have, been violated.     In Kirit Kumar Chaman Lal Kundaliya v. Union of India  & Ors., [1981] 2 SCC 426, a case under the COFEPOSA Act, where the order of detention was made by the Home Minister and the representation  made by the detenu had been rejected not  by the Home Minister but by the Secretary, this Court held that the  representation had been rejected by an authority  which had no jurisdiction at all to consider or pass any order  on the  representation of the detenu and that, therefore,  ren- dered a continued detention of the petitioner void,  follow- ing Santosh Anand’s case (1981) 2 SCC 420, where it was held that  the representation was not rejected by  the  detaining authority  and as such the constitutional  safeguards  under Article  22(5) could not be said to have been  strictly  ob- served or complied with. In B. Sundar Rao & Ors. v. State of Orissa,  [1972] 3 SCC 11, where the detention was under  the Orissa  Preventive Detention Act, 1970 and sections 7  &  11

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thereof conferred the right on the detenu to make  represen- tation  and have it considered by appropriate  authority  it was  held  that such consideration was  independent  of  any action  of Advisory Board as there was necessity of  Govern- ment to form opinion and judgment before sending the case to the Advisory Board.     In  Vimalchand  Jawantraj Jain v. Shri Pradhan  &  Ors., [1979]  4  SCC  401, it was held by this  Court  that  under Article  22(5) independent of the reference to the  Advisory Board, the detaining authority must consider the representa- tion  at the earliest and come to its own conclusion  before confirming the detention order and consideration and  rejec- tion  of  the  representation subsequent to  report  of  the Advisory  Board  would not cure the defect. It  was  clearly held that it is no answer for the detaining authority to say that the representation of the detenu was sent by it to  the Advisory  Board  and the Advisory Board had  considered  the representation  and then made a report in favour  of  deten- tion. Even if the Advisory Board had made a report upholding the  detention  the appropriate Government is not  bound  by such opinion and it may still, on considering the  represen- tation of the 112 detenu  and keeping in view all the facts and  circumstances relating  to the case, come to its own decision  whether  to confirm the order of detention or to release the detenu;  as in  that case there was nothing to show that the  Government considered  the representation before making the order  con- firming  the detention. The Constitutional obligation  under Article  22(5)  was not complied with. In the  instant  case there was no consideration before and even after the Adviso- ry  Board  considered  the case of the detenu.  It  can  not therefore,  be said that the representation was disposed  of in accordance with law.     Mr.  Ghosh faintly submits on merits of the case that  a single instance of possessing 70 tolas of gold in gold  bars was  not enough to genuinely satisfy the detaining  authori- ties to resort to preventive detention of the petitioner who is  a Polish national and not resident in India. It is  true that the detention order was passed with a view to  prevent- ing the detenu from repeating smuggling activities. That the detenu in the particular act indulged in smuggling could not of  course be denied. It is stated in the counter  that  the detention  of  persons  under the COFEPOSA  Act  serves  two purposes: (1) to prevent the person concerned from  engaging himself  in an activity prejudicial to the  conservation  of foreign  exchange  and also preventing  him  from  smuggling activities and thereby to render him immobile by the detain- ing  authority  so that during that period  the  society  is protected  from such prejudicial activities on the  part  of the  detenu; and (2) to break the links between the  persons so  engaged  and the source of such activity  and  from  his associates engaged in that activity or to break the continu- ity  of such prejudicial activities so that it would  become difficult, if not impossible, for him to resume the  activi- ties.  There is undoubtedly scope for interpreting that  the above  two  purposes envisage continuous  residence  of  the person engaged in smuggling and as such may be more  readily applicable  to a resident of the country. But such  habitual smuggling activity may not have similarly been envisaged  in respect of a foreign national who is not a resident of  this country. The customs Act itself makes appropriate provisions for adjudication, confiscation and punishment for  smuggling and prevents possible repetition or recurrence.     Preventive  detention of a foreign national who  is  not

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resident of the country involves an element of international law  and human fights and the appropriate authorities  ought not  to be seen to have been oblivious of its  international obligations  in  this regard. The universal  declaration  of human fights include the fight to life, liberty and security of person, freedom from arbitrary arrest and detention;  the right 113 to fair trial by an independent and impartial tribunal;  and the  right  to presume to be an innocent  man  until  proved guilty.  When  an  act of preventive  detention  involves  a foreign national, though from the national point of view the municipal law alone counts in its application and  interpre- tation,  it is generally a recognised principle in  national legal system that in the event of doubt the national rule is to  be interpretted in accordance with the State’s  interna- tional obligations as was pointed out by Krishna Iyer, J. in Jolly  George  Verghese v. The Bank of Cochin, AIR  1980  SC 470.  There  is  need for  harmonisation  whenever  possible bearing in mind the spirit of the Covenants. In this context it  may not be out of place to bear in mind that the  funda- mental  rights  guaranteed  under our  Constitution  are  in conforming line with those in the Declaration & The Covenant on  Civil and Political Rights and the  Covenant,  Economic, Social and Cultural Rights to which India has become a party by ratifying them. Crimen Trahit personam. The crime carries the person. The commission of a crime gives the court of the place where it is committed jurisdiction over the person  of the offender. Legal relations associated with the  effecting of legal aid on criminal matters is governed in the interna- tional  field either by the norms of  multilateral  interna- tional conventions relating to control of crime of an inter- national  character or by special treaties concerning  legal cooperation. Smuggling may not be regarded as such a  crime. The system of extradition of criminals represents an act  of legal  assistance  by one State (the requestee)  to  another State (the requestor) with the aim of carrying out a  crimi- nal prosecution, finding and arresting a suspected  criminal in  order  to bring him to court or for executing  the  sen- tence.  In concluding such convention the States base  them- selves on principles of humanitarianism in their efforts  to contribute  to the more effective achievement of the  objec- tives of the correction and re-education of violators of the law.  Where such conventions exist, the citizens of a  State who  were  convicted to deprivation of  freedom  in  another signatory State are in accordance with mutual agreement of     States,  transferred  to the country of which  they  are citizens  to  serve  their sentences. The  transfer  of  the convicted  person may take place only after the verdict  has entered  into  legal  force and may be carried  out  on  the initiative  of either of the interested States. The  punish- ment  decided  upon  with regard to a  convicted  person  is served on the basis of the verdict of the State in which  he was convicted. On the strength of that verdict the competent court of the State of which the person is a citizen adopts a decision  concerning its implementation and  determines,  in accordance with the law of its own State, the same period of deprivation  of freedom as was assigned under  the  verdict. While  such ameliorative practices may be available in  case of a foreign 114 national being criminally prosecuted, tried and punished, no such proceedings are perhaps possible when he is preventive- ly  detained. A preventive detention as was held in  Rex  v. Holiday,  1917  AC--268 "is not punitive  but  precautionary

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measure." The object is not to punish a man for having  done something  but  to intercept him before he does  it  and  to prevent  him  from doing it. No offence is proved,  nor  any charge  is formulated; and the justification of such  deten- tion is suspicion or reasonable probability and there is  no criminal  conviction  which can only be warranted  by  legal evidence.  In this sense it is an anticipatory action.  Pre- ventive  justice requires an action to be taken  to  prevent apprehended  objectionable activities. In case  of  punitive detention the person concerned is detained by way of punish- ment  after being found guilty of wrong doing where  he  has the fullest opportunity to defend himself, while  preventive detention  is  not by way of punishment at all,  but  it  is intended  to prevent a person from indulging in any  conduct injurious  to  the society. There may, therefore,  be  cases where  while a citizen and resident of the country  deserves preventive  detention  apart from criminal  prosecution,  in case  of a foreign national not resident of the  country  he may not be justifiably subjected to preventive detention  in the  event  of which no international  legal  assistance  is possible unlike is case of criminal prosecution and  punish- ment. Considering the facts and circumstances of the instant case,  however,  we find sufficient evidence of  the  detenu having  visited this country though on earlier occasions  he was not found to have been carrying on such smuggling activ- ities.  However,  in  view of our decision  in  the  earlier submissions  we do not express any opinion on  this  submis- sion.     In the result we find force in the second submission and hold  that continued detention of the detenu has  been  ren- dered  illegal by nonconsideration of his representation  by the  appropriate  Government according to law  resulting  in violation of Article 22(5) of the Constitution; and he is to be set at liberty forthwith in this case. R.N.J.                                              Petition allowed. 115