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Allahabad High Court · body

1991 DIGILAW 1116 (ALL)

Ishtiaq Ali v. State of U. P.

1991-08-29

R.K.AGRAWAL, S.SAGHIR AHMED

body1991
JUDGMENT S. Saghir Ahmad. J. 1. The petitioner, who is under detention under the impugned order dated 31.7.91 passed by the State Government under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter referred to as the Act), has challenged the order on the grounds, inter aha, that there has been a violation of the fundamental rights guaranteed to him under Article 22 (5) of the Constitution of India inasmuch as he was supplied the grounds of detention as also the documents in support thereof in a language which was not known to him and, therefore, he could not make an effective representation against the order of detention. Another ground raised in this case is that the material which were extremely relevant to his detention were not placed before the detaining authority, namely, the State Government. 2. Taking up the first ground first, it will be noticed that the petitioner in his statement recorded on 31890 by the Customs authorities under section 108 of the Act, had given out that he can understand only Urdu language. A copy of this statement has been furnished to the petitioner as part of the order of detention. It was, therefore, within the knowledge of the Customs authorities that the petitioner does only know the Urdu language. In para 3 of the petition the petitioner has reiterated that he does not know any language properly and that he is only conversant with the Urdu language. It is further stated that a number of documents in support of the grounds of detention were in English language which the petitioner could not understand. 3. In para 5 of the counter affidavit which has been filed on behalf of opposite parties 1 and 2, it is stated as under: That in reply to the contents of paragraph 3 of the writ petition it is sated that the statement of the petitioner was recorded in Hindi as he could not write in Urdu also. The statement was dictated in Hindi by the petitioner which was read over to him and when he was satisfied with the same, he has put his signatures. Since the petitioner cannot read and write English, Hindi or Urdu his plea that the records given to him are in English, which he does not know is not relevant. The statement was dictated in Hindi by the petitioner which was read over to him and when he was satisfied with the same, he has put his signatures. Since the petitioner cannot read and write English, Hindi or Urdu his plea that the records given to him are in English, which he does not know is not relevant. It is further stated that the petitioner's statement which is in question answer form may kindly be perused which have been filed at page No. 66 of the writ petition, particularly page No. 71 wherein it has been stated by the petitioner that whatever has been written has been understood by him after being read over to him and found correct. The petitioner had signed the statement given by him. 4. It would thus appear that the opposite parties themselves do not dispute that the petitioner is conversant with the Urdu language and not with English language. 5. The order of detention has been filed as Annexure1 to the petition. This order is in Hindi and a large number of documents in support of the order of detention are in Hindi while a number of other documents including the copies of the arrest memo, bail application of Mohd. Suhail in the court of Sessions Judge, Allahabad, order dated 9890 passed by the Sessions Judge, Allababad, affidavit in support of the bail application, copy of the writ petition of Mohd. Suhail as also the accompanying affidavit are all in English language, which the petitioner admittedly, does not know. There is no assertion in the counter affidavit that these documents were read out and explained to the petitioner. 6. Supply of documents to a detenu in a language which he does not understand has been held in several decisions to amounts to a violation of Article 22 (5) of the Constitution which guarantees to the person a; right to make a representation against the order of detention. If the order or the grounds in support there of are supplied to the detenu in a language which he does not understand, it cannot be said that there was any compliance of the provisions of Article 22 (5). In Ibrahim Ahmad Batti alias Mohd. If the order or the grounds in support there of are supplied to the detenu in a language which he does not understand, it cannot be said that there was any compliance of the provisions of Article 22 (5). In Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam v. Slate of Gujarat and others (1982) 3 SCC 440 the documents in support of the grounds of detention served on the petitioner were in a language other than the language which was his mother tongue. The Supreme Court held that failure on the part of the authorities to supply Urdu translation of the documents constituted breach of Article 22 (5) of the Constitution read with section 3 (3) of the Act which had the effect of vitiating the detention of the petitioner of that case. In Kubic Darusz v. Union of India and others, 1990 SCC (Crl) 227 (1990) 1 SCC 568 it has been held that communication of grounds of detention in a language not known to the detenu would amount to noncommunication and would be violative of Article 22 (5) of the Constitution. It is another matter that in this case the Supreme Court, on the facts of the case, came to the conclusion that the petitioner to whom documents were supplied in English knew English language but had actually feigned ignorance. 7. In the instant case, as pointed out earlier, there is no assertion in the counter affidavit that the petitioner was conversant with the English language or that all the documents were read over and explained to him or that the translated copies of those documents were supplied to him. 8. A Division Bench of this court of which one of us (S.S. Ahmad,J) was a member, had taken a similar view in Latoori Singh v. Union of India and others, 1982 LLJ 138. 9. 8. A Division Bench of this court of which one of us (S.S. Ahmad,J) was a member, had taken a similar view in Latoori Singh v. Union of India and others, 1982 LLJ 138. 9. Since in the instant case the documents in support of the order of detention were not supplied to the petitioner in the language with which he was conversant and they were supplied in English or in Hindi with which he was, admittedly, not conversant, we are satisfied that there has been a breach of the provisions of Article 22 (5) of the Constitution read with Section 3 (3) of the Act and that the petitioner has been denied the opportunity of making an effective representation against the order of detention. 10. Another ground on which the order of detention has been challenged is that the relevant material was not placed before the detaining authority, namely, the State Government. 11. In this connection, it is pointed out by the learned counsel for the petitioner that the petitioner had earlier filed Writ Petition No. 8060 of 1990 in this court in which an interim order was passed on 18890 directing the respondents not to arrest the petitioner subject to the condition that the petitioner would make himself available for interrogation by the Customs authorites. It is asserted in para 5 of the writ petition that a copy of this writ petition was not placed before the detaining authority and, instead, writ petition of another person, namely, Mohd. Suhail, who, incidentally, is the petitioner's son, were placed before the detaining authority. This position is not disputed by the opposite parties in their counter affidavit in which the assertion made on their behalf is that whatsoever material was sent by the Reporting Officer was placed before the detaining authority. There is also a clear admission that a copy of the writ petition filed by petitioner in this court was not placed before the State Government. 12. The Supreme Court In a 'recent decision in P. U. Abdul Rahiman v. Union of India, and others, AIR 1991 SC 336 has held that if vital materials which have the potentiality of affecting the mind of the detaining authority are not placed before the detaining authority, the order of detention will be vitiated. 12. The Supreme Court In a 'recent decision in P. U. Abdul Rahiman v. Union of India, and others, AIR 1991 SC 336 has held that if vital materials which have the potentiality of affecting the mind of the detaining authority are not placed before the detaining authority, the order of detention will be vitiated. The Supreme Court has referred to its earlier decision in M. Ahmedkutty v. Union of India, (1990) 2 SCC 1 and has relied upon the said decision in laying down that if the relevant documents are not considered, satisfaction of the detaining authority itself will be found impaired. 13. The petitioner has raised a number of other grounds but since we are satisfied that the writ petition can be disposed of on the two grounds discussed above, we need not go into other grounds. 14. In view of the above infirmities, the writ petition is allowed and the impugned order of detention dated 31791 contained in Annexure1 passed by the State Government under section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is hereby quashed with the direction that the petitioner shall be set at forthwith unless his detention is required in some other case.