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1991 DIGILAW 120 (KAR)

MOHAMMED HANIF v. STATE OF KARNATAKA

1991-02-11

K.J.SHETTY, M.RAMA JOIS

body1991
RAMA JOTS. J,, J. ( 1 ) HAS challenged the legality of the order made by the State Government under Section 3 (l) (iii) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 ('the Act' for short), the following two questions of law arise for consideration: (1) Whether in a case where the grounds of detention including the documents on the basis of which the detention order is made, are not supplied in a language which the detenu is able to read and understand, which constitutes a serious defect and furnishes a ground for setting aside an order of detention, giving of legal assistance to the detenu to assist him to make a representation, with whose assistance the detenu had in fact made a representation, cures the defect of not furnishing the documents in the language known to the detenu? (2) Whether the Government is under a duty to consider the representation made by the detenu, though addressed to the Advisory committee, independently even after accepting the recommendation of the Advisory Committee and confirming the order of detention. ( 2 ) BRIEF facts of the case, are these: On 9-1-1989 the Superintendent of Customs and Central excise, Belgaum, who had information that the petitioner travelling in a bus plying from Bombay to Bangalore, was carrying smuggled gold, entered the bus when it was parked opposite to hotel Hanuman at Belgaum. After interrogating the petitioner, who was sitting on seat No. 27 of the bus, he was taken to Hotel Hanuman. When a search was made of the person of the petitioner, ten primary gold pellets totally weighing 1166. 600 gms. valued at Rs. 3,78,000-00, were found in the possession of the petitioner. The Superintendent, under the reasonable belief that gold was smuggled into India, seized the same. Thereafter, after collecting necessary information, the State Government made the impugned order of detention on 21-4-1989. Pursuant to the said order, the petitioner was detained on 21-9-1990. Questioning the legality of the said order, the petitioner has presented this writ petition. The Superintendent, under the reasonable belief that gold was smuggled into India, seized the same. Thereafter, after collecting necessary information, the State Government made the impugned order of detention on 21-4-1989. Pursuant to the said order, the petitioner was detained on 21-9-1990. Questioning the legality of the said order, the petitioner has presented this writ petition. ( 3 ) THE learned counsel urged the following two contentions: (1) The order of detention, the grounds of detention and the documents in support of detention, referred to and relied on in the grounds of detention, were all supplied in english or Hindi language, which were not known to him and as his request for supplying those documents in Urdu language was not complied with, the order of detention was liable to be set aside on the ground that the petitioner was deprived of the valuable right of making representation against the detention under Article 22 (5) of the Constitution of India. (2) Even though a representation was in fact made by the petitioner on 22-10-1990 to the Advisory Committee, it was obligatory on the part of the State Government to consider the said representation independently and failure to do so renders the further detention of the petitioner illegal. ( 4 ) ELABORATING the first contention, thelearned counsel submitted as follows: The petitioner made a representation on 8-10-1990, which reads:"i am kept in this Jail. I don't know any language other than Urdu but I have been given all the documents written in Hindi. I request that I may please be given those documents in Urdu. And if it is not possible, I may please be released. "to the said representation, a reply dated 23-10-1990 was given by the State Government, which reads:" ENDORSEMENT sub. : Representation dated 8-10-1990 of sri Mohammed Hanif, COFEPOSA detenu in Urdu through the Sr. Superintendent, central Prison, Bangalore, reg. furnishing of documents in Urdu. With reference to your representation cited above Sri Mohammed Hanif, cofeposa detenu is hereby informed that in your statement dated 9-1-1989 before the superintendent, Central Excise, Headquarters, Belgaum, had stated that your mother-tongue is Hindi and since you cannot write fluently and requested one of the officers to write your statement by giving him the translation of it in Hindi. Accordingly all the documents were given in Hindi. Your request, therefore, for furnishing the documents in Urdu is hereby rejected. Accordingly all the documents were given in Hindi. Your request, therefore, for furnishing the documents in Urdu is hereby rejected. As there exists no grounds to release you, your request to release by revoking the order of detention is also hereby rejected. "from the aforesaid endorsement, it is clear the Government declined to furnish the documents in Urdu asserting that the petitioner was fully conversant with the Hindi language. Actually, the petitioner is not at all conversant with hindi language, though Hindi happens to be his mother-tongue. Therefore, non-supply of documents in Urdu language itself constitutes a valid ground for quashing the order of detention. ( 5 ) IN support of the contention that non-furnishingof the order of detention, the grounds of detention including the documents referred to and relied on in the grounds of detentioin in writing and in the language known to the detenu renders the detention illegal, the learned counsel relied on the Judgment of the Supreme Court in the case of Tsering Dolkar v The Administrator, union Territory of Delhi, AIR 1987 SC 1192 . The relevant portion of the Judgment reads:"11. The detenu has contended that he understands only Ladakhi language but he can hardly write, read or converse in that language. Admittedly his wife who is the petitioner before us in a Tibetan refugee and apparently is conversant with both Tibetan as also English. It is the case of the respondents in the affidavit of Shri Tripathi filed on january 13,1987 that:"it is thus apparent that the detaining authority while passing the detention order has fully considered all the 17 documents running to pages 1 to 45 which have been supplied to and received by the detenu along with translation thereof in the Tibetan language as admitted in the writ petition. "it is not disputed that the law as laid down by this Court requires the detaining authority to provide the material to the detenu in a language which he understands in order that an effective representation against his detention may be made. "it is not disputed that the law as laid down by this Court requires the detaining authority to provide the material to the detenu in a language which he understands in order that an effective representation against his detention may be made. A Constitution Bench of this court in the case of Hadibandhu Das v District magistrate, Cuttack, AIR 1969 SC 43 at p. 46 has indicated:"mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our Judgment, amount to denial of the right of being communicated the grounds and of being afforded an opportunity of making a representation against the order. "this view has been reiterated in several decisions of this Court (see 1962 Supp. (2) scr 918 : AIR 1962 SC 911 , (1969)1 SCR 227 : AIR 1969 SC 43 , (1975)2 SCR 215 : AIR 1974 SC 2125 . 12. The learned Additional Solicitor general relied upon the feature that the petitioner-wife knew both English and tibetan languages and an effective representation as a fact had been made. There can be no two opinions that the requirement of law within the provisions of Article 22 (5) of the Constitution is that the detenu has to be informed about the grounds of detention in a language which he understands. The fact that the detenu's wife knew the language in which the grounds were framed does not satisfy the legal requirement. Reliance was placed by the learned Additional Solicitor General on a decision of this Court in Prakash Chandra mehta v Commissioner and Secretary, Government of Kerala, AIR 1986 SC 687 in support of his contention that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the documents accompanying the grounds were not in a language known to the detenu the order would not be vitiated. There is no clear indication of the test of prejudice being applied in that case. On the f?cts relevant before the court, a conclusion was reached that the detenu was merely feigning ignorance of english and on the footing that he knew english, the matter was disposed of. There is no clear indication of the test of prejudice being applied in that case. On the f?cts relevant before the court, a conclusion was reached that the detenu was merely feigning ignorance of english and on the footing that he knew english, the matter was disposed of. We must make it clear that the law as laid down by this court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order (see air 1975 SC 1513 , (1975)2 SCR 832 : AIR 1975 SC 550 , AIR 1975 SC 245 . "the learned counsel also relied on the Judgment of the Supreme Court in the case of Kubic dariusz v Union of India. The relevant portion of the Judgment reads:". . . . "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 purposeful 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, AIR 1962 SC 911 (supra) and hadibandhu Das v District Magistrate, 1969 (1) scr 227 : AIR 1969 SC 43 . "in view of the ratio of these decisions, the learned counsel contended that the order of detention is liable to be set aside on the ground that the detention order and grounds of detention were not communicated to the detenu. "in view of the ratio of these decisions, the learned counsel contended that the order of detention is liable to be set aside on the ground that the detention order and grounds of detention were not communicated to the detenu. ( 6 ) AS against this, Sri B. A. Somayaji, thelearned Government Advocate, submitted thit admittedly the mother-tongue of the petitioner was Hindi and he had studied upto the 9th standard and even on the basis that he had primary education in Urdu language he would have certainly taken Hindi as one of the other languages upto 9th standard and in fact there was intrinsic evidence to show that he knew reading and understanding hindi language, though he was feigning ignorance of the said language when he made representation before the Government and also before this Court and therefore it cannot be said that there was no communication. In support of this contention, the learned counsel relied on the Judgment of the Supreme Court in the case of Prakash Chandra v Government of kerala, AIR 1986 SC 687 . The relevant portion of the Judgment reads:"62. It will be appropriate to deal with the first ground. Whether the grounds should have been communicated in the language understood by the detenus? The Constitution requires that the grounds must be communicated. Therefore, it must follow as an imperative that the grounds must be communicated in a language understood by the person concerned so that he can make effective representation. Here the definite case of the petitioner's father is that he does not understand English or Hindi or Malayalam and does understand only Gujarati language. The facts revealed that the detenu Venilal was constantly accompanied and was in the company of his daughter as well as son - both of them knew English very well. The father signed document in Gujarati which was written in English which is his mercy petition in which he completely accepted the guilt of the involvement in smuggling. That document dated 30th June, 1984, contained, inter alta, a statement "i myself am surprised to understand what prompted me to involve in such activity as dealing in Imported Gold". He further asked for mercy. There is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. He further asked for mercy. There is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. Bearing this salutary principle in mind and having regard to the conduct of the detenu venilal Mehta specially in the mercy petition and other communications, the version of the detenu Venilal is 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 dint 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 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 has been stated so in the affidavit filed on behalf of the respondent. We are of the opinion that the detenu Venilal Mehta was merely feigning ignorance of English. " the learned counsel invited our attention to the endorsement made below the order of detention and grounds of detention in Hindi language in which it is stated that the contents of the order was explained to the petitioner in Hindi and he understood the same. The learned counsel submitted that the matter written in Hindi was written by the petitioner himself. The learned counsel submitted that the matter written in Hindi was written by the petitioner himself. In the petition, the petitioner has specifically pleaded that he does not know Hindi language and the endorsement made below the grounds of detention and the order of detention in Hindi were recorded by some official and the endorsement so written in hindi was read out to him, which of course he understood, as his mother-tongue was Hindi and he signed below it and it was not correct to say that the endorsement made in Hindi was in his handwriting. There is no categorical statement in the statement of objection that the endorsement made in Hindi was actually written by the petitioner himself. In the absence of such statement in the statement of objection and in view of the categorical statement made by the petitioner that he had not made the written endorsement in hindi and he was incapable of doing so, the only inference that can be drawn is that the petitioner was not conversant with Hindi. From that it follows that non-supply of documents in Urdu, the language known to the detenu, would vitiate the order of detention. ( 7 ) HOWEVER, the learned Government Advocate submitted that even in a case where an order of detention, the grounds of detention as also documents referred to and relied on in the grounds of detention, are supplied in a particular language, which the detenu was not conversant with, if it is found that he had made an effective representation, then it cannot be said that there was no communication as required under Article 22 (5) of the Constitution. In support of this submission, the learned counsel for the State relied on the Judgment of the Supreme Court in Didar singh v District Magistrate, Amritsar, AIR 1973 sc 1264 . Relevant portion of the Judgment reads:"3. The appellant has accepted in his writ petition that the grounds of detention were served on him in English together with a transliterated copy in Punjabi (Gurmukhi script ). But his plea is that he does not possess any knowledge of Punjabi or English, as his mother-tongue is Urdu. It is accepted on behalf of the appellant that he did send a very lengthy representation covering several typed pages in English and signed in Punjabi. But his plea is that he does not possess any knowledge of Punjabi or English, as his mother-tongue is Urdu. It is accepted on behalf of the appellant that he did send a very lengthy representation covering several typed pages in English and signed in Punjabi. If that is so, it is reasonable to infer that the appellant was able to fully understand the nature of the allegations made against him. If that were not so, it is difficult to appreciate how he was able to make such a lengthy representation dealing with the several allegations contained in the copies of the grounds served on him. This cannot be considered to be a case where no effective opportunity was furnished to the appellant because of his alleged language difficulty. Therefore, the decision of this Court in Chaju Ram v State of Jammu and Kashmir, air 1971 SC 263 , is of no assistance to the appellant. Therefore, the first contention has to be rejected. "the learned counsel also relied on the Judgment of the Supreme Court in the case of Jayantha Jadav v State of west Bengal AIR 1974 SC 1707 . The relevant portion of the Judgment reads:"4. It is also contended that the petitioner is illiterate and since the order of detention was not explained to him orally in his own language, he had no opportunity to make an effective representation. The affidavit of the i Deputy Secretary shows that the vernacular translation of the detention order was supplied to the petitioner on the very day that the order of detention was served on him. Besides the petitioner had made his representation to the Government and had also appeared in person before the Advisory board. It cannot therefore be said that the petitioner was not aware of the nature of allegations made against him. Besides the petitioner had made his representation to the Government and had also appeared in person before the Advisory board. It cannot therefore be said that the petitioner was not aware of the nature of allegations made against him. " relying on these decisions, the learned government Advocate submitted that in a case in which the detenu is unable to read and understand the order of detention and the grounds of detention, if at his request the assistance of counsel as sought for by him was given in order to enable him to make an effective representation to the Government and vith the aid and assistance of an Advocate a representation in fact had been made, the order of detention cannot be set aside merely on the ground that the documents were not supplied in the languages which the detenu concerned was able to read and understand. In support of the contention advanced by the learned Government Advocate, he produced the original records which contained a request made by the detenu on 4-10-1990 to give him the assistance of an Advocate to enable him to make a representation to the Government. The request was complied with by the Government on 5-10-1990. The learned counsel who is appearing for the petitioner in the petition, himself, at the request of the detenu, was permitted to interview the petitioner in Jail to assist him in drafting the representation. Accordingly, a representation was drafted on 22-10-1990 and the same was addressed to the Chairman of the Advisory Committee. A copy of the representation made, is produced by the petitioner. The said representation runs to four pages and all possible grounds, which the detenu could urge in support of his prayer for his release, have been set out therein. The learned counsel for the State therefore submitted that there was no merit in the contention of the detenue that there was no proper communication of grounds and as a result the detenue was denied of the right to make an effective representation. The learned counsel for the State therefore submitted that there was no merit in the contention of the detenue that there was no proper communication of grounds and as a result the detenue was denied of the right to make an effective representation. ( 8 ) THE learned Government Advocate alsosubmitted that communication of the order of detention and the grounds of detention in the official language of the State or the Union, as the case may be, coupled with the giving of assistance of a legal practitioner or a friend of the detenue in order to assist the detenu to make an effective representation, would satisfy the requirements of article 22. The learned counsel submitted that several persons coming from different States who were conversant with their respective language, indulge in smuggling activities in the State and when they are detained, it would become difficult for the State to furnish the order of detention and the grounds of detention and the documents in the respective language, for, in the nature of things it would be difficult for the State to have officers proficient in translating the order of detention and grounds of detention from the official language to such other language and consequently there would be defects in translation, which again would become a ground for setting aside an order of detention though on facts the detention was fully justified. The learned counsel also pointed out that in the case of illiterate persons, communication of the order of detention in any language would be of no consequence as they do not understand any of the languages. He, therefore, submitted that in all such cases, if assistance of a friend or counsel of the choice of the detenu is found to have been given to the detenu, with whose assistance he could make an effective representation, no prejudice would be caused to the detenu and it cannot also be said in such cases there was no proper communication of the order and grounds of detention. All that we need say in the matter is that the requirement of communication of grounds of detention and the order of detention prescribed under Article 22 (5) is mandatory and as the matter concerns the liberty of an individual, it cannot be diluted. All that we need say in the matter is that the requirement of communication of grounds of detention and the order of detention prescribed under Article 22 (5) is mandatory and as the matter concerns the liberty of an individual, it cannot be diluted. Therefore, in cases where the detenu is illiterate or even if literate is unable to read aud understand the order and grounds of detention or is not conversant with the official language of the State in which the order and grounds of detention are written, it is for the Government to ensure that the assistance of a legal practitioner or a friend of the choice of the detenu is given with or without his asking for it, within the period statutorily fixed for communicating the grounds of detention, with whose assistance the detenu could make an effective representation. If such precaution is taken and assistance is given, then the detenu cannot make any legitimate grievance, ( 9 ) IN fact, similar question was considered bya Division Bench of this Court in the case of bhawarlal Jain v Mahendra Prasad, ILR 1991 kar. 454. The relevant portion of the Judgment reads:"33. The last ground urged as to the delay in considering the request of the detenu to supply Hindi versions of documents. Two representations were made, one on 20-8-1990 seeking Hindi version of documents and the other on 22-8-1990 seeking assistance of the counsel. The petitioner in para 18 of the petition states that the order of detention is vitiated for the reason that the detenu's representation for Hindi version of the grounds of detention dated 20-8-1990 has not been considered expeditiously. Non-furnishing of documents and delay in consideration of representation has rendered the detention illegal. Respondents 1 and 2 in para 18 of their objections statement have stated that the representation of the detenu for furnishing Hindi version of the documents has been considered expeditiously and replied. They have further submitted that the grievance of the detenu in this regard was illusory inasmuch as the detenu in this regard was illusory inasmuch as the detenu is fully conversant with english. They have further submitted that the grievance of the detenu in this regard was illusory inasmuch as the detenu in this regard was illusory inasmuch as the detenu is fully conversant with english. Further, in the light of the fact that the detenu had been permitted to consult an advocate at the earliest and that the detenu had made a detailed representation with the aid of the Advocate makes it clear that his right to make effective representation was in no way affected at all and that there has been full compliance with the requirement of Article 22 (5) of the Constitution of India. The two representations dated 20-8-1990 and 22-8-1990 were received in the COFEPOSA Cell on 28-8-1990 and 30-8-1990. The representations seeking the assistance of the counsel was allowed on 3-9-1990 and communicated on 5-9-1990. Representation seeking Hindi version was not one under Section 11 of the COFEPOSA Act for revocation of the order of detention. In the case of kumarunnissa v Union of India, Judgments today, 1990 (4) SC 7, in para 14 of the said judgment, it is observed thus: "it is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the non-supply has impaired the detenu's right to make an effective and purposeful representation. "in the instant case, since a detailed representation was made with the assistance of the counsel, we hold that no prejudice is caused to the detenu by non-consideration of sentation seeking Hindi version of documents. Hence this contention of the petitioner also fails. " (emphasis by us) the ratio of the above decision covers the point. We are also in respectful agreement with the view taken that in cases where the order of detention, grounds of detention and other documents have been communicated and the detenu pleads thereafter that he is unable to understand the same and therefore he wants the assistance of a counsel, if such assistance is given, thereafter he cannot be permitted to say that the provisions of the Act or that the provisions of Article 22 (5) of the Constitution has not been complied with, for, through the assistance of the counsel, there would be more effective communication. ( 10 ) FOR these reasons, we answer the first question as follows:"in a case where the grounds of detention including the documents on the basis of which the detention order is made, are not supplied in a language which the detenu is able to read and understand, which constitutes serious defect and furnishes a ground for setting aside an order of detention, giving of legal assistance to the detenu with or without his asking for it, forthwith and within the time prescribed for communication of the grounds of detention, to assist him to make a representation, with whose assistance the detenu could have/had in fact, made an appropriate representation, cures the defect of not furnishing the documents in the language known to the detenu. " ( 11 ) NOW coming to the second question, there is no dispute that the petitioner, with the assistance of his Advocate did made a representation on 22-10-1990 praying for his release. No doubt the said representation was addressed to the chairman of the Advisory Committee. It is not disputed that the said representation was conidered by the Advisory Committee, who even thereafter opined that the detention should be confirmed. It was sent to the Government along with the proceedings by the Advisory Committee. The Government accepted the opinion of the advisory Committee and confirmed the detention. The question, however, for our consideration is, whether it was not obligatory for the government to consider the said representation independently. As far as this question is concerned, it is covered by the Judgment of this court in the case of Rama Hari Sindhe v State, w. P. No. 119 of 1989, DD: 15-1-1990. Following the said Judgment, by a separate order made today, we have allowed another writ petition in w. P. No. 178 of 1990. In the Judgment in the case of Rama Han Sindhe, W. P. No. 119 of 1989, DD: 15-1-1990, this Court held that even though a representation was addressed to the Advisory committee, after it reaches the Government, it has to consider the representation independently. It was also pointed out that the government has got two fold responsibility in considering the representation, one with the assistance of the Advisory Committee and another independently. It was also pointed out that the government has got two fold responsibility in considering the representation, one with the assistance of the Advisory Committee and another independently. For the reasons stated in the case of Rama Han Sindhe, W J. No. 119 of 1989, DD: 15-1-1990, we answer the second question as follows: "the Government is under a duty to consider the representation made by the detenu, though addressed to the Advisory Committee, independently, even after accepting the recommendation of the Advisory Committee and confirming the order of detention. " in the present case, only the first obligation has been complied with. But the obligation to consider the representation independently has not been complied with. ( 12 ) IN the result, we make the following order: (I) Rule made absolute; (ii) A writ in the nature of habeas corpus shall issue declaring the further detention of the petitioner as per the order bearing No. HD 68 SCF 89, dated 21-4-1989 (Annexure-A), as illegal and without authority of law; (iii) The petitioner shall be set at liberty forthwith. --- *** --- .