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PETITIONER: RAZIA UMAR BAKSHI

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT23/06/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA

CITATION:  1980 AIR 1751            1980 SCC  (3)1398  CITATOR INFO :  RF         1981 SC 728  (15)  RF         1982 SC1500  (8)  RF         1984 SC1095  (9)  R          1990 SC 605  (5)  C          1991 SC1983  (4,5)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling  Activities   Act,  Section   3-When  grounds   of detention are  couched in  English, a  language not known to the detenu and the grounds are not explained in the language known to the detenu either, the detention order is vitiated- Fact that  the grounds  of detention  was explained  to  the detenu  in   the  language  should  be  explained  by  sworn affidavit by  the officer  who explained the grounds and not by any  other-Constitution of  India, Article 22(5)-Right to representation lo  the  Central  Government  Section  11  of COFEPOSA, explained.

HEADNOTE:      Allowing the petition, the Court ^      HELD: 1.  Where the  detaining authority  is  satisfied that the  grounds are  couched in  a language  which is  not known to  the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds  have  been  explained  to  the  detenu  in  the language, which he understands. [14O0 D-E]      A bare  denial at  the stage  when  the  Habeas  Corpus petition is  filed in  the court  by the detaining authority that  those   formalities  were  observed  would  be  of  no consequence particularly  when it  is not  supported by  any document or  by any affidavit of the person who had done the job of explaining or translation. [14O0 E-F]      Hadibandhu Das v. District Magistrate, Cuttack and Anr. [1968] 1 SCR 227; followed.      2. Courts  frown on  detention without trial and insist on the  strict compliance  of the  constitutional safeguards enshrined in Article 22(5) to She letter of the law, because a  non-compliance   of  these  safeguards  would  itself  be sufficient to vitiate the order of detention. [14O0 F-G]      3. Section  ll of  COFEPOSA  confers  a  constitutional right on the detenu to have his representation considered by

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the  Central   Government.  It  is  true  that  the  Central Government  has  a  discretion  to  revoke  or  confirm  the detention but  the detenu  has undoubtedly  a right that his representation  should   be  considered   by   the   Central Government for  whatever worth it is. The mere fact that the detenu had  sent a  copy to  the Central Government does not absolve the  detaining authority  from the statutory duty of forwarding the  representation to  the  Central  Government. [14O1 B-D]      [The Court  expressed  the  hope  that  in  future  the detaining authorities should fully apply their mind so as to result  in   a  strict   compliance  of  the  constitutional safeguards contained in the Constitution, more particularly, be cause the liberty of the subject is in peril.] 1399

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 631 of 1980.      Under Article 32 of the Constitution.)      Ram Jethmalani,  M. M.  Lodha and  Harjinder, Singh for the Petitioner.      R. B.  Datar, R.  N. Sachthey  and M. N. Shroff for the Respondents.      FAZAL ALI,  J. (Vacation Judge) The detenu was detained under sub-Section  (t) of  Section 3  of The Conservation of Foreign Exchange  and Prevention of Smuggling Activities (in short COFEPOSA)  by the  Government of  Gujarat by its order dated January  30, 1980.  The order  was passed by Mr. P. M. Shah, Deputy  Secretary to  the Government  of  Gujarat  who authenticated  the   said  order  on  behalf  of  the  State Government. The  detenu while making a representation to the State Government  also prayed for supply of documents to him in order  to make  a more  effective  representation.  These documents however  were supplied  on March 27, 1980 although the order  of detention  was itself  confirmed on  March 21, 1980. In  the representation  sent to  the  Government,  the detenu had  made a  specific prayer  that his representation should be  forwarded to  the Central  Government  for  being considered.      In support  of the  rule, Mr.  Ram Jethmalani,  counsel appearing for  the detenu  raised  two  points  before  this Court. In  the first place it was submitted that the counsel on behalf  of the  detenu has  expressly  pleaded  that  the grounds of  detention were  couched in  English, a  language which the detenu did not understand at all and these grounds were not  explained to him. A specific ground on this aspect of the  matter has  been taken in ground No. XIII at page 21 of the petition which may be extracted thus:-           "That  the  detenu  does  not  know  English.  The      grounds of detention and the order of detention were in      English. No  vernacular translation  of the grounds was      given nor  they were  explained to detenu in a language      known to him."      This allegation  seems  to  have  been  denied  by  the respondents in  para 14  of the affidavit of Mr. P. M. Shah, on behalf  of the  detaining authority, where he stated that the grounds  were explained  to the  detenu in  the language known to  him. It  was averred  in para 5 that one Mr. A. K. Sharma, Police  Inspector, C.I.D.  (Crime Branch), Ahmedabad had explained  to the  detenu the order of detention and the grounds communicated  to  him  on  January  30,  1980.  This affidavit,  in   my  opinion,   is  wholly  inadmissible  in evidence. If it was

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14O0 a fact  that Mr. Sharma had personally explained the grounds to the  detenu then  the respondents  should have  filed  an affidavit of Mr. Sharma himself to show that he had actually explained the  contents of  the grounds  to  the  detenu  by translating the same in the language which he understood. No such affidavit is forthcoming. No Contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated  the grounds to the detenu. The service of the ground of  detention  on  the  detenu  is  a  very  precious constitutional right  and where the grounds are couched in a language which  is not  known  to  the  detenu,  unless  the contents of  the grounds  are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention  to the  detenu  and  would  thus  vitiate  the detention ex-facie.      In case  of  Hadibandhu  Das  v.  District  Magistrate, Cuttak &  Anr. [1969  (1) SCR 227], it was clearly held that merely oral  explanation of an order without supplying him a translation  in  a  script  or  language  which  the  detenu understood  amounted   to  a   denial  of   right  of  being communicated the  grounds. Tn  the instant  case, it  is not even  alleged   in  the  affidavit  of  Mr.  Shah  that  any translation  or   translated  script   of  the  grounds  was furnished to the detenu.      In case  of  Hadibandhu  Das  v.  District  Magistrate, Cuttack & ground alone. I would however like to observe that in cases where the detaining authority is satisfied that the grounds are  couched in a language which is not known to the detenu, it  must see to it that the grounds are explained to the detenu,  a translated  script is  given to  him and  the grounds bear  some sort  of a  certificate to  show that the grounds have  been explained  to the  detenu in the language which he understands. A bare denial at the stage when Habeas Corpus petition  is filed  in the  court  by  the  detaining authority that   these formalities were observed would be of no consequence  particularly when it is not supported by any document or  by any affidavit of the person who had done the job of  explaining or  translation. We  have pointed  out in several cases  that courts  frown on detention without trial and insist  on the  strict compliance  of the constitutional safeguards enshrined  in Article  22(5) to the letter of the law, because  a non-compliance  of  these  safeguards  would itself be  sufficient to  vitiate the  order  of  detention. Despite our  repeated observations,  unfortunately,  however the  detaining   authority  continues   to  pass  orders  of detention in  a casual  or cavalier  fashion with the result that the  courts are  compelled to  release the  detenus. We hope an  trust that  in  future  the  detaining  authorities should fully  apply their  mind so  as to result in a strict compliance of the constitutional safeguards contained in the Constitution more  particularly because  the liberty  of the subject is. in peril. 14O1      Another ground  taken by  Mr. Ram Jethmalani in support of the  rule is that although the detenu had made a specific prayer in  his representation  to the  State Government that his  representation  should  he  forwarded  to  the  Central Government for  consideration under  section 11  of the Act, yet the  detaining authority  did not  choose to forward the representation  to  the  Central  Government  at  all.  This position is  admitted and  the defence  taken is that as the detenu had  himself sent  a copy  to the Central Government, the detaining  authority  did  not  think  it  necessary  to forward the  representation to  the Central Government. This

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defence is  wholly unacceptable.  Section l  l  of  the  Act confers a  constitutional right  on the  detenu to  have his representation considered  by the  Central Government. It is true that  the Central Government has a discretion to revoke or confirm  the detention  but the  detenu has undoubtedly a right that  his representation  should be  considered by the Central Government  for whatever  worth it is. The mere fact that the  detenu had  sent a  copy to the Central Government does not  absolve the detaining authority from the statutory duty of  forwarding the  representation of the detenu to the Central Government.      For these  reasons therefore  I am  satisfied that  the continued detention  of the  detenu in  this case is legally invalid. I  therefore allow this application and direct that the detenu be released forthwith.      As the  detenu has  now been  transferred to Bhavnagar, the order be sent to the Jailor at Bhavnagar. S.R.                                       Petition allowed.