Razia Umar Bakshi Vs. Union of India
& Ors [1980] INSC 129 (23 June 1980)
FAZALALI, SYED MURTAZA 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 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, because the liberty of the subject is in
peril.] 1399
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 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. In 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 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.
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