SEETHAMMA v. GOVERNMENT OF KERALA — 1987 DIGILAW 624 (KER)

Judgment :- 1. The petitioner is the mother of K.Shyama Sunder, Nagarkotta Read, Kcrakcde, Kasaragod District. Shyama Sander was detained under Ext. P1 order issued by the Government under S.3(1) (iv) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (the "COFEPOSA Act"). The petitioner prays for a writ of habeas corpus to produce her son; for a writ of certiorari to quash Ext. P1; and, for an order directing the release of her son. 2. Shyama Sunder (the "detenu") was detained on 28-8-1987 as per Ext. P1 dated 20-8-1987. Within 5 days of the detention, the grounds of detention as well as 61 documents in English accompanied by their Malayalam translations were served on him. He was produced before the COFEPOSA Board on 20-11-1987 and the Board reported that in their opinion there was sufficient reason for his continued detection. The detenu has not sent a representation against the order of detection. It is stated by the petitioner that the detenu could not send any representation at all as he could not read or write any language other than Kannada and that he was educated only upto the third standard with Kannada as the medium. It is further stated that the incident in respect of which Ext. P1 was issued is alleged to have occurred during October - November, 1986. But Ext. P1 was issued only about nine months later. The detenu had been arrested in connection with a criminal case in respect of the very same incident as early as 13-12-1986. That case is still pending and no charges have so far been framed against the detenu. He was released on bail by the criminal court at the end of December, 1986, subject to the condition that he would report to the customs authorities at Kasaragod everyday and that he would reside within the Kasaragod municipal town. This order was subsequently varied without demur from the customs authorities so as to delete the condition that he should report to the customs authorities everyday. 3. This order was subsequently varied without demur from the customs authorities so as to delete the condition that he should report to the customs authorities everyday. 3. Counsel for the petitioner, Shri. J. Jose, in bis extremely well prepared arguments, submits that there is no allegation that since the occurence of the alleged incident in October-November, 1986 and during the period of enlargement on bail the detenu had at any time continued his connections with the alleged offenders or had in any manner continued the activities alleged against him. There is thus a long and unexplained delay of nine months between the alleged incident and the order of detention with no intervening incident to condone the delay. Secondly, counsel submits that, as clearly admitted by the State Government in their counter affidavit dated 30-11-1987, sworn by the Additional Secretary to the Government, the detaining authority could not apply their mind to the fact that the detenu bad been enlarged on bail by the criminal court as the concerned files had not been placed before that authority. The failure of the authority to have due regard to the proceedings in the criminal court and the order of bail show that they have not only acted in a leisurely and casual manner, but have also failed to apply their mind to the question whether the relevant circumstances warranted interference with the liberty of a subject by recourse to the extraordinary power dispensing with the trial required by the normal law of the land. Thirdly, counsel submits that it is not denied that the detenu knew no language other than a smattering of Kannada and no translation of the documents, including the grounds of detention, had been given to him, and no ere had explained to him the contents of those documents. The detenu was thus deprived of his constitutional right to make an effective representation at the earliest opportunity against the order of detention. For all these reasons, counsel points out, the principles enunciated by the Supreme Court in a number of decisions have been flouted by the careless and indifferent manner in which the authority exercised the power under the COFEPOSA Act. 4. The Government Pleader submits that there was no undue delay between the alleged offence and the order of detention. For all these reasons, counsel points out, the principles enunciated by the Supreme Court in a number of decisions have been flouted by the careless and indifferent manner in which the authority exercised the power under the COFEPOSA Act. 4. The Government Pleader submits that there was no undue delay between the alleged offence and the order of detention. He refers to the averments in Para.6 of the counter affidavit where it is seated: "6 Since It was a major case involving a number of persons it look sometime to complete the Investigation. Furthermore, the main accused, Shri. Thottiyil Mammu Haji had absconded immediately after the seizure and surfaced to give evidence only on 19-2-1987. Evidence of certain other persons involved in the case viz: S/Shri. Kappi Abdulla and B. M. Mohamood could be taken only during March, 1987. Soon after this, COFEPOSA proceedings were initiated and proposal for detention of K. Shyamsunder and others were forwarded to Government on 21-7-1987. Proposals were then placed before the Screening Committee and after getting their decision and after examining the proposals in detail, detention orders were issued against them on 20-8-1987. Hence, there was no undue delay as contended " The Government Pleader submits that in the circumstances of this case and in view of the fact that a number of other persons were also involved in the very same smuggling activities, a time lag of nine months cannot be considered to be an undue delay. He further submits that the detaining authority adverted to the relevant facts disclosed by the available records before issuing Ext. P1. Although the file relating to the criminal case was not placed before the authority, it would Dot be correct to say that the authority did not apply their mind to the necessary facts. As regards the detenu's ability to understand the language, the Government Pleader says, the detenu did not raise any complaint, and, in any view, his brother who shared the prison cell with him knew sufficient Malayalam to explain the contents of the documents to the detenu. 5. We agree that the averments in Para.6 as well as in Para.9 of the counter affidavit show that, in the circumstances of this case, there is no merit in the petitioner's allegation regarding undue delay. This is not, however, the position with regard to the other allegations. 6. 5. We agree that the averments in Para.6 as well as in Para.9 of the counter affidavit show that, in the circumstances of this case, there is no merit in the petitioner's allegation regarding undue delay. This is not, however, the position with regard to the other allegations. 6. In answer to the petitioner's allegation about the non-application of the mind of the detaining authority concerning the criminal case pending against the detenu and his enlargement on bail, subject to certain conditions, and the subsequent variation of that order to delete one of the conditions, this is what is stated in Para.10 of the counter affidavit: "10. The bail application and the orders of the Court there on were not placed before the detaining authority by the Customs Department as they were not readily available with them. However the detaining authority on carefully perusing the records came to the finding that this is a fit case for detention under S.3 (1) (iv) of the COFEPOSA Act, 1974. The detenu is a member of a gang headed by one Thottiyil Mammu. Haji engaged In large scale smuggling of gold. A large quantity of gold was recovered from this gang." 7. Counsel for the petitioner relies upon two decisions of the Supreme Court. Khalid, J speaking for a Bench composed of R. S. Pathak, J., as he then was, and himself, in Anant Sakharam Raut v. State of Maharashtra, (1986) 4 S. C. C. 771, observes: "The petitioner was detained pursuant to an order of detention dated January 15, 1986, issued by the Commissioner of Police. Bombay who is respondent 2 herein, under S.3(2) of the National Security Act, 1980 "5. We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the lime the detention order was made that the detenu had moved. applications for bail in the three pending cases and that he was enlarged on ball on January 13, 1986, January 14, 1986 and January 15, 1985 (sic. 1986). We have gone through the detention order carefully. applications for bail in the three pending cases and that he was enlarged on ball on January 13, 1986, January 14, 1986 and January 15, 1985 (sic. 1986). We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This Indicates a total absence of application of mind on the part of detaining authority while passing the order of detentions. "6. In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the ball granted to him, the authorities would be at liberty to move the appropriate court to get the bail orders cancelled. One does not know bow the detaining authority would have acted if he was made aware of the above details." (emphasis supplied) Counsel also refers to another decision of the Supreme Court to the same effect in Sita Ram Samant v. State of Rajasthan, (1986) 2 S. C. C.86. Counsel asserts that the detaining authority did not apply their mind to the fact that the detenu was arrested in a criminal case still pending in regard to the very same offence, and released on bail subject to two conditions, and that the customs authorities did not seriously oppose the deletion of one of the conditions, namely, requirement that he should report to them daily. The customs authorities took no steps to get the bail order discharged. If they had any apprehension that the incident of November, 1986 involving the detenu would be repeated and that he continued his associations with the persons involved in that incident, they would have taken timely steps to get the bail order discharged. This vital aspect of the matter, counsel says, was not in the mind of the detaining authority, as clearly admitted by them in Para.10 of the counter affidavit. If the facts asserted are correct, there is indeed mush force in Shri. Jose's submissions on the point. Strangely enough, these facts are not disputed. Admittedly the concerned file regarding the criminal case and the order of bail was not placed before the authority. If the facts asserted are correct, there is indeed mush force in Shri. Jose's submissions on the point. Strangely enough, these facts are not disputed. Admittedly the concerned file regarding the criminal case and the order of bail was not placed before the authority. A very important and material fact was, therefore, not considered by them before ordering detention under the COFEPOSA Act. The authority had a duty to consider with reference to the totality of the relevant facts whether the detention was necessary. In so far as the relevant circumstances had not been taken into account by the authority, there was non-application of the mind. It is not a question of the authority wanting in jurisdiction, but of the proper application of the mind in the exercise of such jurisdiction. The jurisdiction of the authority to make an order of detention is beyond challenge. But it is incumbent an the authority in the exercise of such jurisdiction to take into account matters which are relevant and eschew from its mind matters which are irrelevant. An order of detention which is not the result of the proper application of the mind, as in the present case, is invalid. 8. We shall now deal with the allegation regarding language. The detenu was produced before us this morning. He told us that he did not know the script of any language, although he had studied upto the third standard with Kannada as the medium; his written knowledge of Kannada was so little that he could not understand any document written in that language; since he did not know the script of any other language, he was incapable of reading any document; no one had explained to him the contents of the documents given to him; and, when he was heard by the COFEPOSA Board he had mentioned this fact to them. 9. There is no averment in the counter affidavit to the effect that anyone had read and explained to the detenu in Malayalam or Kannada the contents of the documents given to him. The detenu is conversant with the spoken Malayalam, although he cannot read it. He told us that if the documents were explained to him in Kannada or in Malayalam he could understand. The detenu spoke to us in Malayalam and we are satisfied that he is capable of understanding Malayalam if spoken to. The detenu is conversant with the spoken Malayalam, although he cannot read it. He told us that if the documents were explained to him in Kannada or in Malayalam he could understand. The detenu spoke to us in Malayalam and we are satisfied that he is capable of understanding Malayalam if spoken to. In the absence of any attempt on the part of the respondents to explain to the detenu the contents of the documents, the respondents have denied the detenu an effective opportunity to make a representation. They have thus deprived him of his right guaranteed under Art.22(5) of the Constitution of India. 10. The Government Pleader refers to the decision of the Supreme Court in Prakash Chandra v. Commr. & Secy., Govt. of Kerala, A. I. R.1986 S.C. 687, and contends that the detenu's brother, who is also involved in the very same incident, has been sharing with him the very same cell in the prison and, therefore, he could have explained the contents of the documents to the detenu. This decision has no application to the facts of this case. It is true that the detenu's brother has not so far complained about his lack of knowledge of Malayalam to understand the documents supplied to him. But we are dealing with a constitutional right and the burden is upon the respondents to show that they have afforded the detenu the earliest opportunity to make an effective representation. It is not sufficient that one presumes that the brother of the detenu understood the language end that he explained the contents of the documents to him sufficiently well to enable him to make a representation. It is not clear to us whether the brother knew either Malayalam or English any better than the detenu himself. May be the brother, as pointed out by the Government Pleader with reference to a document signed by him, could read Malayalam, but it is a matter of mere conjecture whether he had sufficient knowledge of that language to comprehend the meaning and significance of the legal documents supplied to the detenu so as to explain them to him well enough for making an effective representation at the earliest opportunity. The burden is indeed on the respondents in a case like this to show that someone bad explained the contents of the documents to the detenu. The burden is indeed on the respondents in a case like this to show that someone bad explained the contents of the documents to the detenu. As stated by the Supreme Court in Smt. Raziya Umar Bakshi v. Union of India, 1980 S.C.C. (Cri) 846, an affidavit to that effect ought to have been sworn by the very person who explained the contents of the documents to the detenu and it is not sufficient that someone else had sworn an affidavit for the purpose. In the present case there is no affidavit by the detenu's brother or by anybody else to shew that the documents had been explained to the detenu. Mere presumption that the brother would have explained to the detenu the consents of the documents is not sufficient, especially when there is no evidence that the brother knew the language well enough to do so. The respondents have not discharged their burden on this point. The fact that the detenu did not complain does not lessen that burden. This is another serious infirmity affecting the validity of the order. 11. We express no view as to the merits of the contentions regarding the circumstances warranting the exercise of the power under S.3 (1) (iv) of the COFEPOSA Act in regard to the detenu. We express no view as to whether or not such exercise of power in regard to the detenu is warranted in the future. All that we say is that the power has been wrongly exercised because of what we have stated above. We repeat, the authority, from the documents produced before us, is not shown to have exercised their mind with reference to the relevant facts and circumstances relating to the criminal case against the detenu and the order enlarging him on bail; and, there is total lack of evidence that the contents of the documents supplied to the detenu had been explained to him in a language which he understood so as to enable him to make bis representation against the order of detention at the earliest opportunity. These two defects are fatal to the order that is impugned in this proceeding. 12. Accordingly, we quash Ext. P1 and direct the respondents to release the detenu forthwith. The Original Petition is allowed in the above terms. No costs. Issue Carbon/photo copies of this judgment to the parties on the usual terms. Allowed.