Kubic Dariusz
Vs. Union of India & Ors [1990] INSC 15 (18 January 1990)
Saikia,
K.N. (J) 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.
HEAD NOTE:
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 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] 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.
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- 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 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 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- 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- 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.
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;
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 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 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 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.
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