JUDGMENT Dr. G.F. Couto, J.-The above three writ petitions can be conveniently disposed of by a single judgment, since the facts are common and the grounds of challenge are the same. 2. By three orders, all of them dated 27th April, 1987, and issued by the officer on Special Duty and Ex-Officio Secretary to the Government of Maharashtra, Home Department, the detention of George Fernandes, Brighton Pereira and Menino Beato Picifico Rebello had been ordered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing them from abetting the smuggling of goods. The said persons were detained and the order of detention along-with the grounds for detention had been served on them. The validity of these orders is being challenged in the above Writ Petitions. 3. Although several grounds of challenge had been advanced in the petitions, Mr. Dias, learned Senior Counsel appearing in each of the petitions, restricted his attack to the fact that the statement of one Dayalal Kapoor Chand Jain recorded by the Customs Authorities on 1st September, 1986 in Hindi has not been translated and supplied to each of the detenus. He contends that the detenus are not conversant with Hindi language and in any case, they do not know to read and write that language. The copy of the statement given to the detenus is written in Hindi. The said statement had been recorded by the Customs Authorities under Section 108 of the Customs Act and was relied upon by the Detaining. Authority for the purposes of issuing the detention order. The detenus were therefore, prejudiced inasmuch as they had no sufficient knowledge and understanding of the material relied upon in order to enable them to represent against their detention. 4. It is seen from the grounds of detention supplied to each of the detenus that a. statement of Dayalal Kapoor Chand Jain had been recorded by the Customs Authorities under Section 108 of the Customs Act and that the shop as well as the residential premises of the said Jain had been searched by the Customs Authorities although nothing incriminating had been found, It is further seen from the said grounds of detention that the Detaining Authority relied upon the said statement and a reference to the statements relied upon is made, in para 4 II of the grounds of detention. Then, the said statement finds a place at serial No. 12 of the annexure to the grounds of detention, which is a list of the documents and statement placed before the Detaining Authority. In the said list of documents and statement, it is clearly stated that the statement dated 1st September, 1986 of Shri Dayalal Kapoor Chand Jain is written in Hindi. Admittedly, therefore, translation thereof either in English or in Portuguese was not given to the detenus. Mr. Bhobe, the learned counsel appearing for the respondents, has produced for our perusal the statement given by the detenus before the Customs. Authorities under Section 108 of the Customs Act. It is clear that each of the detenus had statement they had studied upto some standard in English and Portuguese, but all of them further stated that they could only speak and understand the Hindi and Konkanni languages. It is clear from "the recording of the said statements that the detenus made it clear that though they can read and write in English and Portuguese they are not able to do so in Hindi and Konkanni although they are able to express themselves in such language and understand them. This being the case, it is clear that the Sponsoring Authorities had before them a clear statement that the detenus did not know to read and write Hindi and therefore, it was incumbent upon them to provide a translation either in English or Portuguese as those were the languages which, according to the detenus, were known to them and in which they could write and read. This omission in giving the said translation of a statement which was relied upon by the Detaining Authority to form its objective satisfaction in order to issue the detention orders is fatal inasmuch as the detenus were deprived of a particular piece of evidence for the purpose of making an effective representation against their detention. These writ petitions therefore, succeed and the detention orders are liable to be set aside. 5: The rule is accordingly made absolute and consequently, the aforesaid detention orders are hereby quashed and set aside. The detenus to be set free forthwith if not required in any other case. Petition allowed CAN WE CHANGE 1HE CONVENTION OF REFUSING BAIL? These writ petitions therefore, succeed and the detention orders are liable to be set aside. 5: The rule is accordingly made absolute and consequently, the aforesaid detention orders are hereby quashed and set aside. The detenus to be set free forthwith if not required in any other case. Petition allowed CAN WE CHANGE 1HE CONVENTION OF REFUSING BAIL? By Asrar Ahmad Refusal of bail to accused persons and their confinement to jail during trial has become such a usual and persisting phenomenon under the mechanism of our criminal justice that hardly one is moved to question an obvious antinomy or illegality in it. There was even a striking news report 'bail denied to 14 year old girl who was accused for assisting her brother in a murder case. The bail was denied to her even though she herself did not commit' murder and being of tender age could not be expected to act like a 'high-risk' male accused. In a free and democratic society like ours, it can well be asked as to why bail in all the offences be not granted as of right when' accused person is deemed as innocent until proven guilty? Is our fear about social insecurity due to criminals so deeply routed or is our law basically so defective that non-grant of bail has become a common feature? Whatever may be the reason, the fact remains that non-grant of bail is incongruous with the principles of legal justice and also poses a contempt of constitutional" Jaw guaranteeing protection to life and liberty as" envisaged by Article 21 pf the Constitution of India. Stark realities The adverse consequences of declining bail are quite often so demonstrably evident that State itself is faced with a serious situation. There are quite many instances where accused persons having been denied bail are ultimately acquitted, after their long confinement in custody during trial. What is the justification or otherwise compensation for such illegitimate confinement? It is indeed most unconscionable that the convicted person and the acquitted accused both are made to suffer imprisonment alike. No redeeming provision or legal antidote is available against such an injustice. Conceivably, perhaps, there could be none. But then our judicial system is also short of providing a quick manner of dispensing justice to minify the magnitude of this problem. No redeeming provision or legal antidote is available against such an injustice. Conceivably, perhaps, there could be none. But then our judicial system is also short of providing a quick manner of dispensing justice to minify the magnitude of this problem. As it happens, delayed disposal of cases due to lengthy prescribed' procedures coupled with inadequate employment of human force in the process of justice, only prolong the state of horrendous miseries of the accused in detention Asrar Ahmad besides diminishing enthusiasm in the prosecution machinery and confidence of the masses in judiciary. In some cases the accused person happens to be the only breadwinner of his family and his arrest leaves his innocent children and wife on the road as vagrant and destitute. Who would provide them bread if our law is to invariably refuse bail before conviction in offences punishable with death or long term imprisonment? However, the question would still remain as to who would provide Succur to such a family if the only breadwinner is ultimately found guilty and is sent to jail to meet his legitimate sentence of imprisonment? Much the same would again be the problem if one breadwinner kills another of a family, which may have our approval in favour of State to refuse bail to such an accused. It should not, however, be disputed that the accused if held guilty in law must be punished arid State is supposed to take due case of his suffering dependents as well. It should also be possible for the State to make a law imposing a responsibility on the guilty criminal to share the burden of family maintenance- in place of the family-head killed by him, besides the penal punishment of imprisonment. Nevertheless, the point here is that State cannot knowingly afford to deprive the innocent dependents for no fault of theirs by just putting their family-head behind the bars before his actual conviction, howsoever much he may appear to have been involved in a serious offence. It would also be against the spirit of Article 10 of the U.N. Covenant on Economic, Social and Cultural Rights, which provides protection to the family. It would also be against the spirit of Article 10 of the U.N. Covenant on Economic, Social and Cultural Rights, which provides protection to the family. Serious flaws Basically our Criminal Procedure Code by section 437 provides that bail shall not be granted to an accused if the court other than Session Court or High Court has 'reasonable ground' for believing that the accused is guilty of a non-bailable, offence punishable with either death or life imprisonment. However, in case of bailable offences, the law is that bail shall be granted as of right. This is an obvious discrimination. On principle if a person before trial is supposed as innocent then bail would have to be granted as of right in all cases because such presumption of innocence cannot be changed on the basis of enormity of offence but only on the basis of established guilt. That apart, the law has made grant of bail a discretionary concession in non-bailable offences. This discretion is a matter of subjective satisfaction of the court and subject to the error of judgment. Though bonafide wrong conclusions based on the best of understanding and judgment may not be a legal infirmity, yet such a feature in the context of liberty to an accused person is highly significant. While refusing bail a Delhi based Sessions Judge in 1986 noted that the case was 'only fixed for the purposes of bail' and the court 'could not be expected to scrutinize the evidence minutely so as to come to the conclusion whether the accused was guilty or not'. Such well conscious uncertainties and possibilities of errors in conclusions themselves form a good basis of 'reasonable doubt' benefit of which must go in favour of granting bail but it does not so happen. Apprehensions' merit In most American judicial jurisdictions State bears the burden of disproving the accused's entitlement to bail as a matter of right by establishing that the proof of guilt is evident and presumption so great. However, the bane of our system is that due to certain deep routed apprehensions we happen to develop a convention of always having a presumptiontion so great against release of an accused that state hardly needs an effort to oppose bail. In fact, there is no embargo on higher courts to grant bail even in offences of grave nature. However, the bane of our system is that due to certain deep routed apprehensions we happen to develop a convention of always having a presumptiontion so great against release of an accused that state hardly needs an effort to oppose bail. In fact, there is no embargo on higher courts to grant bail even in offences of grave nature. But the guiding principles laid down and followed by all the courts are that bail would not be granted if there is an apprehension of accused's absconsion for fear of receiving judgment or the accused is likely to tamper with evidence or hampers the tempo of progress which prosecution wants to maintain or the accused becomes a danger to society. These apprehensions looking apparently reasonable may not on merit be found so. If accused's liberty is curtailed on fear of tampering of evidence, it may well be a case of discrimination in the matter of liberty being given to the prosecution and the accused. An accused person can equally apprehend that in his absence evidence is likely to be falsely created against him at" the behest of prosecution which may necessitate his personal freedom to take care about his case. Even otherwise, the question of tampering of evidence might not comparatively pose so much a problem as when an accused person absconds and is not available for investigation or for receiving judgment. It appears that unless the ethic of police dealings with public is really free from doubt about its genuine purpose the evil of police terrorism would go on and such fear, perhaps, might remain the basis of an accused to abscond. Yet, this is not such a reason that grant of bail be restricted in general. Already there might be cases where accused person is not intercepted by police and case remains registered with them. Such cases are processed by them any way. If a notorious accused jumps bail and does not present himself before police, investigation proceedings can even then be completed with the cooperation of public and even police witnesses or accomplice, if any, available. An absconding accused, after a notice through publication to defend, can be tried in absentia on evidence produced by the prosecution and if convicted, he can be sent to jail to serve the sentence as and when arrested through the efficiency of the police. An absconding accused, after a notice through publication to defend, can be tried in absentia on evidence produced by the prosecution and if convicted, he can be sent to jail to serve the sentence as and when arrested through the efficiency of the police. So long as our society is not disturbed by an absconding accused, it would not' matter much if the guilty accused is not punished immediately on conviction. However, if he becomes a nuisance on his absconsion, police can again nab him like a fresh case. It is thus obvious that police insistence on accused's custody through direct arrest or judicial remands is not always necessary. Further, in the interest of keeping the accused person away from the ordeal of police tortures, it is desirable that police has least control on the presumed criminal. This is, however, a controvertible proposition. What would happen if powers of police are rendered innocuous? The effect would, perhaps, be that criminals with least fear of police torture and terror would not easily act to the wishes of the police-right or wrong and, on the other hand, police would plead impossibility to produce real criminals before the court for want of evidence. It is likely that proof of evidence such as discovery of weapon used in the commission of crime and other kind of objective evidence, may not be procured unless certain degree of police force is allowed to terrorize the hardened criminals. But the question is why courts and police should feel bound to attach so much importance to the piece of evidence or information coming through an accused. This only gives rise to the practice of judicial remands with social malady of police tortures on the one hand, and on the other, makes the police over active to procure by hook or crook false or true proofs from the accused in order to win the case and earn their incentive promotions. The need is to dispense with such a practice arid decide cases on the basis of eye-witnesses, circumstantial evidence, sequence of events and other material on record, if direct evidence like weapon of crime is not forthcoming. Viable approach It would appear that the concept of bail relief in our country thrives in a less visible atmosphere. The need is to dispense with such a practice arid decide cases on the basis of eye-witnesses, circumstantial evidence, sequence of events and other material on record, if direct evidence like weapon of crime is not forthcoming. Viable approach It would appear that the concept of bail relief in our country thrives in a less visible atmosphere. There is a need to change certain convictions against the accused and approach him with a great deal of restraint in refusing bail. An ideal situation can be expected if we revamp our system of criminal justice in such a fashion that criminal law and investigative procedures both are so rationalized that neither the freedom of the accused before conviction is unnecessarily gagged nor the capabilities of police' to maintain law and order are hampered. One step in this direction would be to give recognition to the practice of 'Conditional Bail' as of right in the first instance only. This would' be subject to cancellation if violation of any term thereof or commission of crime' second time by the same accused disqualifies him for such right. The rationale behind it is that unless a person accused of a serious crime falls within the meaning of notorious or hardened criminal by reason of his committing repeated crimes or posing a demonstrable threat to social morality and security, the purpose of 'reasonable restrictions' as broadly based in our Constitution cannot be invoked to refuse bail to him since he is basically presumed as innocent unless proved guilty. Thus, section 437 Cr. P.C. which is a very draconic provision concerning human liberty, can well be amended like this. "Whoever is arrested in connection with an offence punishable with either death or imprisonment for life or any other term of imprisonment whatsoever shall, in the first instance, be offered release or be released, on bail as of right subject to such reasonable terms and conditions by the Court as are consistent with the social status of the accused. "Whoever is arrested in connection with an offence punishable with either death or imprisonment for life or any other term of imprisonment whatsoever shall, in the first instance, be offered release or be released, on bail as of right subject to such reasonable terms and conditions by the Court as are consistent with the social status of the accused. Provided that no such relief shall be granted to any accused who, after his release in the first instance, has either violated any term and condition of the bail already granted to him or by reason of his repotted criminal act or in any other manner becomes a notorious person betraying the confidence of others or posing danger to national peace and security or disturbing social, morality." It is hoped that the well known phrase 'bail not jail' and the once shown magnanimity of the highest court in granting mid-night bail would not only remain a laudable gesture confined in the annals of our judicial history but mark the beginning of a milestone leading to a complete movement in favour of a new phrase 'bail without fail', of course, in the first instance.