Meer Khan v. State of Rajasthan (3) — 1993 DIGILAW 49 (RAJ)

Honble KAPUR, J.—Jaggu Khan is the detenu who has been detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred as COFEPOSA). The detention order was passed on 8.12.1988, but the detenu was actually detained only on 3.3.1992. This habeas corpus petition has been preferred by his brother on several grounds. Before coming to them we may look into the facts and grounds on which detention order has been passed. On 12.9.1988 an official of the Customs Department, Banner and LB. Police apprehended a Nisan Truck bearing No. RJC 4456 on the Barmer-Harsani route 3 kms. from village Bhadres. When the truck came to a halt one person wearing tahmatt got down from the truck and ran away and could not be caught. The driver of the truck gave out his own name as Bakhtaram and he stated that the person who had run away was Jaggu Khan son of Hotti Khan resident of village Mapuri. The vehicle was searched and above the driver seat in the cabin, there was a plate fixed with nuts and bolts and on removing this plate, 228 silver slabs weighing 194.300 kgs. and two cloth bags were found. These bags were found to contain 2 kgs. heroin. Attempts to catch Jaggu Khan were not successful. The details were placed before the Home Commissioner and on 8.12.1988 the detention order, Annexure 1 was passed. The details of the grounds on which detention order Annexure 1 is based is Annexure 2. (2) A regular complaint about the case was lodged in the Court of Munsif and Judicial Magistrate Barmer. (3) The detenu Jaggu Khan was detained on 3.3.1992 and the grounds of detention were served upon him on 6.3.1992. According to the detenu he was not aware that an order under section 3 of the COFEPOSA had been passed against him. The detention has been challenged on a number of grounds which are that he is unable to read or write and the only language which he understands is Sindhi and the grounds of detention were not explained to him in the language known to him. In absence of properly understanding the same he was not able to get effective opportunity of making a representation. In absence of properly understanding the same he was not able to get effective opportunity of making a representation. (4) The next ground is that the detention order was passed as early as 8.12.1988, but the detenu has been arrested only on 3.3.1992 and this delay in securing the arrest has not been explained. On similar grounds in the case of Bawal Khan, who also happens to be a brother of the detenu, the detention order was quashed. (5) The other ground is that the representation made by the detenu should have been dealt with from day to day and the delay in rejecting the same has not been explained, which also makes the detention illegal. The detenu made a representation before the Advisory Board and he wanted to appear through a friend or lawyer and lead oral evidence, but he was not allowed to do so. This is also said to amount to denial of an effective opportunity of putting his case. (6) In reply the Additional Advocate General has submitted that the detenu understood the order of detention as well as grounds of detention when they were served upon him and were explained to him and he had given a certificate about it. An affidavit of Jagat Pal Singh has been filed in support of the explanation for the delay in securing his detention. The details have been given as to what efforts were made to trace him and arrest him but he was absconding and a notification under section 7 of the COFEPOSA was also issued. He was heard by the Advisory Board also and his representation was considered by the appropriate authority. (7) We may now take up the grounds one by one. (8) The petitioners contention is that the detenu is an illiterate person and knows only Sindhi language and the detention order as well as grounds of detention were not explained to him in the language understood by him. It is also contended that the documents in support of the grounds of detention were not read over and explained to the detenu with the result that he has been prevented from making an effective representation. The detention order Annexure R/1 bears the endorsement that the original detention order bearing No. F. 5 (2) Home 9/88 dated 8th Dec. It is also contended that the documents in support of the grounds of detention were not read over and explained to the detenu with the result that he has been prevented from making an effective representation. The detention order Annexure R/1 bears the endorsement that the original detention order bearing No. F. 5 (2) Home 9/88 dated 8th Dec. 1988 has been received and that the order has been explained to him in his language and he has understood the same. This bears the thumb impression of the detenu and the endorsement of the Deputy Superintendent, Barmer Jail stating that the detention order was served by him and explained to him in the language of the detenu. The thumb impression was attested on 3.3.1992. Annexure R/3 is the letter written by the Superintendent Central Jail, Ajmer, which is to the effect that the detention grounds have been served upon the detenu on 6.3.1992 and a receipt has been obtained and the same have been explained to the detenu in Hindi. (9) The learned counsel for the petitioner has relied upon Chhaju Ram vs. State of Jammu and Kashmir (1), in which it has been held that it is absolutely necessary that when the court is dealing with a detenu who cannot read or understand English language or any language at all then the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. In this case it was not accepted that the endorsement taken at the time of serving the documents and the grounds, which were in English language, the detenu understood the same and the detenu had not been able to make any representation at all as the grounds for detention were in an alien language. (10) We have to consider the facts of the case in order to decide whether the detenu was explained the detention order and the grounds of detention. The main contention is that he knows only Sindhi language and therefore cannot understand what was explained to him. There is no affidavit of the detenu Jaggu Khan to the effect that the only language he can understand in conversation is Sindhi. He is an illiterate person who does not know English and Hindi but then he does not write or read Sindhi also. There is no affidavit of the detenu Jaggu Khan to the effect that the only language he can understand in conversation is Sindhi. He is an illiterate person who does not know English and Hindi but then he does not write or read Sindhi also. He could have understood something orally, which has been certified by him by putting his thumb impression after having understood what was explained to him. Without the affidavit of the detenu it is difficult to accept that he is unable to understand Hindi in conversation. There are no details as to how he conversed with the members of the Advisory Board while putting his case. It would have been noted that he could speak only Sindhi language and he spoke in that language. The detention order as well as the grounds of detention are in Hindi language and the endorsement made on them goes to show that they were read over and explained to the detenu in the language he understood. It would have been better if the person who explained the orders filed an affidavit. But then in the additional affidavit of Jagatpal Singh the endorsement and the certificate of the Deputy Superintendent, District Jail Barmer and Superintendent Central Jail, Ajmer have been produced from record. This endorsement and certificate no where shows that the detenu speaks a language which was not spoken to him. It may also be said that when an illiterate person wants to make representation then he has to take assistance of another and in this case it is his brother who has made a representation on his behalf. In the petition or the affidavit of Meer Khan it is. no where positively stated that the detenu does not speak or understand spoken Hindi. It is only stated that he is unable to read the documents supplied to him. A specific affidavit of the detenu himself would have gone a long way in explaining the position and his not doing so is only to make out a ground for claiming that the detention order is illegal. The first ground fails and the detention order cannot be quashed on the same. (11) The second point is whether on account of delay in obtaining the arrest of the detenu, the detention order deserves to be quashed. The first ground fails and the detention order cannot be quashed on the same. (11) The second point is whether on account of delay in obtaining the arrest of the detenu, the detention order deserves to be quashed. The detention order was passed as early as on 8.12.1988 and the detenu was arrested on 3.3.1992. At the very outset we may state that if the person to be detained conceals himself and makes himself unavailable then he cannot get a premium over it. If that was so then every person who is required to be detained would conceal himself for a specific period and then claim that he should not be detained. We have to see as to what efforts were made by the respondents in securing his arrest and if on that basis they are able to justify the delay then the detention cannot be quashed on account of delay. While looking into this explanation we have to be conscious of the fact that a department dealing with such cases or the police which has to search a particular person cannot be expected to deal with a single case only but they deal with several cases and if efforts are made from time to time to secure the arrest of a particular person then it would be adequate explanation. In this case the detenu was declared an absconder under section 7 of the COFEPOSA Act in December, 1990. The period before this date is to be explained. It is contended by the learned counsel for the petitioner that in the explanation submitted, a period of three and half months goes unexplained and even the period prior to the Notification under Section 7 of the COFEPOSA is not explained. (12) In T.A. Abdul Rahman vs. State of Kerala (2) it has been held that when there is delay in securing arrest of detenu, then the subjective satisfaction of the authority becomes doubtful. In this case there was delay of three months in obtaining the arrest after the passing of the detention order and there was no explanation for this delay. In this case there was delay of three months in obtaining the arrest after the passing of the detention order and there was no explanation for this delay. The general view in case of delay in securing arrest of detenu after an order is passed was summarised as under: — "The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the livelink between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has broken in the circumstances of each case. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner." (13) The case of Banwala Khan vs. State (3) decided on 09.9.1991 at Principal seat of this Court has also been referred. In this case the Notification under Section 7 of the COFEPOSA had not been issued and there was a period of four months between the detention order and the surrender of the detenu and no explanation had been given about the attempts which were made to secure the arrest of the detenu. In this case the Notification under Section 7 of the COFEPOSA had not been issued and there was a period of four months between the detention order and the surrender of the detenu and no explanation had been given about the attempts which were made to secure the arrest of the detenu. Hence we have to look into the facts and circumstances of the present case in order to see whether the delay in securing the arrest of the detenu is on the genuineness of the subjective satisfaction of the detaining authority. In this case the details of the efforts made to trace whereabouts of absconder Jaggu Khan were made after the passing of the detention order and these details show that from time to time information was collected about his whereabouts, surprise visits were paid at his residence and various authorities were contacted to trace him out. When a person has decided to conceal himself and make himself unavailable and the concerned officers keep on making searches for him then it cannot be said that the long delay in arresting him is because of the fact that the detaining authority was in doubt about the satisfaction of the grounds of detention. The present case is not similar to the decisions which have been cited by the learned counsel for the petitioner and we are satisfied that from time to time adequate steps were taken to trace the detenu and even a notification under section 7 of the COFEPOSA was issued describing him as an absconder. The detention of the petitioner cannot be said to be unlawful. (14) The next contention of the learned counsel for the petitioner is that the detenu made a representation on 15.3.1992 but the same was not dealt with day to day and was rejected only on 16.4.1992 and on this ground the detention is unlawful. Reliance has been placed on Reena Mirchandani vs. U.O.I. (4), wherein it was held that the representation made by the detenu must be considered within the reasonable time and delay invalidates detention. This decision was based on AIR 1981 SC 1126 (5). Reliance has been placed on Reena Mirchandani vs. U.O.I. (4), wherein it was held that the representation made by the detenu must be considered within the reasonable time and delay invalidates detention. This decision was based on AIR 1981 SC 1126 (5). (15) In 1991 (1) SCC 144 (6), the time taken in communicating the representation from Jail at Madras to Central Government at Delhi and the time taken in taking comments of the detaining authority was considered and it was held that there was no unreasonable delay in considering the representation. (16) In this connection we would like to see that one who seeks equity must himself come with clean hands before the court. Here is a case of a person who knowing it very well that he was required and the detention order was passed against him and even a notification declaring him absconder was issued keeps himself concealed for a long time and when arrested he wants that everything in the concerned department should come to a halt and attend to his case only. No specific ground has been taken about this in the petition, hence there is no explanation from the department about this. If the ground had been taken the explanation would have been submitted and that would have been considered whether it is sufficient or not. We are unable to grant relief to the detenu on the basis of the delay in consideration of his representation looking to his own conduct. (17) The last ground is that the Advisory Board has not given any opportunity of producing witnesses even though they were present and that the request to be assisted by next friend was not allowed. Reliance has been placed on Harbans Lal vs. M.L. Wadhawan (7) and other decisions. This plea has been raised by way of an additional affidavit and even in the additional affidavit it has not been mentioned as what they wanted to depose before the Advisory Board. Instead of making a claim for purposes of legal complication they ought to have given out what they wanted to depose before the Advisory Board. In that case the Advisory Board would have appreciated the desirability of calling for affidavits of witnesses or examining them. Instead of making a claim for purposes of legal complication they ought to have given out what they wanted to depose before the Advisory Board. In that case the Advisory Board would have appreciated the desirability of calling for affidavits of witnesses or examining them. In absence of details we are unable to appreciate the bonafides of the detenu in seeking permission to examine witnesses before the Advisory Board and his detention cannot be quashed on this ground. The plea of the petitioner that the department was represented by a competent person before the Advisory Board and he was not allowed the assistance of lawyer or next friend is rebutted by the affidavit of Shri Sita Ram Sharma, Superintendent Customs at Barmer. He was not allowed to be present before the Advisory Board when the meeting took place. (18) We do not find any grounds in this petition on the basis of which the detention can be quashed, hence this petition is dismissed.