Raheem Khan v. State of Rajasthan — 1997 DIGILAW 1052 (RAJ)

Honble GUPTA, J.–This habeas corpus petition under Article 226 of the Constitution of India has been put in on behalf of Raheem Khan who has been detained under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) vide order dt. 10.9.92 passed by Shri D.D. Sud, Dy. Secretary, Home (Security) Rajasthan, Jaipur. (2). The detention has been called in question mainly on the ground that (i) the detention order Anx.1 was passed after delay of nearly six months from the alle-ged seizure of the 250 foreign marked gold biscuits from a bag held by the petitioner on 20.3.1992, (ii) the detenue was already in custody and, therefore, there was no justification for passing the detention order, (iii) the detenue is illiterate and he was not read over and explained the grounds of detention and, therefore, he could not make effective representation; (iv) the detention order was served after a periodof 4-1/2 years and no explanation has been given for the inordinate delay caused in the service of order of detention, and (v) the detention order was passed by the Dy. Secretary to the Government whereas such power could be exercised by the Secretary to the Government. An affidavit has been filed in support of the petition. (3). Respondent No.2 in his reply justified the detention of Raheem Khan. Itwas averred that the detenue was arrested by the police on 20.3.92 under Sec. 3/6 of I.P.P.R. and under Section 307 IPC and he was subsequently arrested on 11.4.1992 under the Customs Act whereupon proposals for his detention under the COFEPOSA Act were sent to the headquarters on 17.6.1992 at Jaipur and the orders were issued by the Government of Rajasthan on 10.9.1992, and thus there was noinordinate delay in issuing the detention order. Regarding the averment in the petition that the petitioner was illiterate and grounds of detention were not read over and explained to him, it was averred that the Superintendent, Central Jail has not been made party who could alone give suitable reply to the averments in this regard. Regarding the averment in the petition that the petitioner was illiterate and grounds of detention were not read over and explained to him, it was averred that the Superintendent, Central Jail has not been made party who could alone give suitable reply to the averments in this regard. For the delay caused in the service of the detention order, it was stated thatthe detenue was hiding in Pakistan and 78 attempts were made to arrest him during the period November, 1992 to November, 1996 but as he was in Pakistan he could not be arrested and the order could not be served. (4). Respondent no.1 did not file reply to the petition. Shri Jasmatia, Additional Advocate General chose to adopt the reply filed by the respondent no.2. (5). We have heard the learned counsel for the parties. (6). Mr. Mehta confined his arguments to two grounds only; (i) the grounds of detention were not read over the explained to the detenue and, therefore, he was unable to make effective representation and (ii) the detention order was served after a period of 4-1/2 years and no explanation has been given of this delay. (7). Mr. Sunil Joshi appearing on behalf of respondent no.1 contended that the detenue did not request the jail authorities to explain the detention order and, therefore, he cannot raise this objection in these proceedings. He pointed out that the detention order as well as the grounds were recorded in Hindi and the detenue has not pleaded that he did not understand Hindi and, therefore, the detention orderis not liable to be struck down on this ground. His further contention was that the detenue chose to remain underground and he even did not appear in the case pending against him in the court of Special Judicial Magistrate (Economic Offences), Jaipur and, therefore, it ws not possible to serve the detention order on him. (8). Mr. Jasmatia, learned Additional Advocate General contended that the detention order does not suffer from any infirmity. He submitted the file of the detenue maintained in the Central Jail Jodhpur to establish that the detention order was read over and explained to the detenue. (9). We have given the matter our thoughtful consideration. The first question to be determined is whether the detenue is illiterate person and he could not read and understand the grounds of detention. He submitted the file of the detenue maintained in the Central Jail Jodhpur to establish that the detention order was read over and explained to the detenue. (9). We have given the matter our thoughtful consideration. The first question to be determined is whether the detenue is illiterate person and he could not read and understand the grounds of detention. In the petition it has been stated that the petitioner is an illiterate man. Affidavit has been filed in support of the averments made in the habeas corpus petition. This fact has not been denied in the reply filed by the respondent no.1. There is therefore no escape from this conclusion that the detenue is an illiterate person. (10). In the petition it has been stated that the grounds of detention were not read over and explained to the detenue at the time of service of the detention order. This fact has not been denied in the reply. What has been stated in the reply is thatthe detenue ought to have requested the Central Jail authorities that he was illiterate and he could not read the language in which the detention order was served and in that case the Supdt. Central Jail would have read over and explained the contents of the detention order. it is thus obvious that the respondent does not plead that the detention order was read over and explained to the detenue. (11). However, at the time of arguments Mr. Jasmatia relied on a photo copy of the detention order, available on the file of the Central Jail, Jodhpur, whereon there is an endorsement at the bottom that the detention order was served on detenue on 10.12.1996 by Shri J.K. Katta, Supdt. Customs and the order was read over the explained to the detenue in his language and the detenue fully understoodthe detention order. Thus the endorsement indicates that the detention order was read over and explained to the detenue by Shri J.K. Katta, Supdt. himself on 10.12.1996, though this fact is not stated in the return filed by respondent no.2. It is significant to point out that the affidavit, filed in support of reply, has been signed by Shri J.K. Katta, Supdt. himself. In this affidavit, he has nowhere stated that he hadread over and explained the detention order to the detenue. himself on 10.12.1996, though this fact is not stated in the return filed by respondent no.2. It is significant to point out that the affidavit, filed in support of reply, has been signed by Shri J.K. Katta, Supdt. himself. In this affidavit, he has nowhere stated that he hadread over and explained the detention order to the detenue. Even it has not been stated in the affidavit that he was present when the detention order was served on the detenue. (12). In such circumstances, on the basis of the endorsement appearing on the photo copy it is not possible to hold that the detention order was read over andexplained to the detenue. A note also appears on the detention order to this effect that the detenue has understood the detention order in his language and that he could read Hindi, followed by signatures purported to have been made by Raheem Khan s/o Ratan. No affidavit of the Superintendent, Central Jail has been filed to prove that detenue Raheem had put his signatures on the copy of the detention or-der and he had also written that he could read Hindi. We have already seen that the person in whose presence the detention order is said to have been served has not testified that the order was read and explained to the detenue. In such situation, it is difficult to accept the contention raised by Mr. Jasmatia that the detention order was read over and explained to the detenue on 10.12.1996 when it was served uponhim. (13). The fact that the detenue did not make request to the Supdt. Central Jail to read over and explain the detention order, does not absolve the authorities to read and explain the detention order in the language, which the detenue understood. The reply indicates that it was the duty of the detenue to make a request to explain him the grounds of detention in his language. This plea is not tenable. Rather it was the duty of the detaining authority to have read over and explained the detention order and the grounds of detention to the detenue when he was illiterate, in order to enable him to make effective representation. (14). There is no substance in this plea of the respondent that the petitionerought to have impleaded the Superintendent, Central Jail, Jodhpur as the respondent in this petition. Supdt. (14). There is no substance in this plea of the respondent that the petitionerought to have impleaded the Superintendent, Central Jail, Jodhpur as the respondent in this petition. Supdt. Central Jail is the officer of the State of Rajasthan. It was for the respondents to have controverted the facts stated in the petition. (15). In the case of Mrs. Tsering Dolkar vs. The Administrator, Union Territory of Delhi & Ors. (1) the Honble Supreme Court has clearly held that the detenue has to be informed about the grounds of detention in a language which he understands. The Apex Court has further observed 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 the requirements, the order becomes unsustainable. (16). The Honble Supreme Court in the case of Chaju Ram vs. State of Jammu & Kashmir (2) also held that the grounds of detention should be explained to the detenue in the language he understand in order to enable him to make effective representation. This principle was reiterated in the case of Smt. Raziya Umar Bakshi vs. Union of India & Ors. (3). (17). This Court also took a similar view in Sawai Singh vs. Union of India (4) decided on 5.7.96 following the dictum of Mrs. Isering Dolkars case (supra). (18). Again in the case of Bawla Khan vs. State of Raj. (5) this Court quashed the detention order on the ground that the grounds of detention were not read over the explained to the detenue in the language, which he understood. In that case,as in the instant case, the plea of detenue was that he could not read or write Hindi. (19). Mr. Joshi strongly relied on the case of Prakash Chandra Mehta vs. Commissioner and Secretary Government of Kerala and Others (6) to emphasise that when the grounds are known to the detenue the order should not be quashed. The facts of that case were that the grounds of detention supplied to the detenuewere in English. The contention of the petitioner was that he did not know English and there were circumstances on record that the detenue had made a mercy petition to the government which was written in English. The facts of that case were that the grounds of detention supplied to the detenuewere in English. The contention of the petitioner was that he did not know English and there were circumstances on record that the detenue had made a mercy petition to the government which was written in English. In that case an affidavit was also filed on behalf of respondent that the detenue knew both Hindi and English. Not only this, there was material on record to hold that the detenue wasin constant touch with his daughter and sons who knew English and Hindi. It is in these special circumstances, the Apex Court repelled the contention that the grounds of detention were not conveyed to the detenue and held that the detenue was merely feigning ignorance of English in which the grounds were furnished to him. The authority is thus distinguishable. In the instant case it has not been contro-verted that the detenue who was illiterate, and that the grounds of detention were not read out and explained to him in the language he understands, in order to enable him to make effective representation. (20). We therefore, hold that on the first ground alone the detention order is liable to be quashed. (21). It is no more in dispute that the detention order was passed on 10.9.1992 but it was served on the detenue on 10.12.1996 when he was in judicial custody in connection with a case under the N.D.P.S. Act. There was thus obvious delay of about 4-1/2 years. In the return it has been averred that the detenue was not available for all these 4-1/2 years and, therefore, there was delay in the service ofthe detention order. (22). The petitioner has filed certified copies of the order sheets of the case pending in the court of Judicial Magistrate, Economic Offences Rajasthan, Jaipur pending against the detenue. A look at the order sheets indicates that the petitioner was present in person in the court at least on 19.4.1993 and, therefore, it cannot besaid that it was not possible to serve the detention order upon him before 10th Dec. 1996. (23). Mr. Joshi inivited our attention to this fact that except on one date of hearing the detenue did not appear before the Court in person which indicates that he was not available in India. We are unable to accept this contention. 1996. (23). Mr. Joshi inivited our attention to this fact that except on one date of hearing the detenue did not appear before the Court in person which indicates that he was not available in India. We are unable to accept this contention. The sponsor-ing authority in this case was customs department, who had prosecuted the detenue in the court of Judicial Magistrate, Economic Offences. The exemption application moved for Raheem Khan was never opposed by the Customs Department in that case. If it was in the knowledge of the officials of the Customs Department that Raheem Khan had crossed the borders of the country i.e. he had absconded, his application should have been opposed. The authorities even did not care to make an application for proceeding u/S. 7 of the COFEPOSA Act. It is not the case of the respondent that the detenue had no property which could be attached. Apart from this, no affidavit of the person who was deputed to execute the order Anx. 1 has been filed. He was the best person to say as to whether he made efforts to serve the order of detention on the detenue. (24). It has been held in the case of Kishan Singh vs. The State of Rajasthan (7) that if the affidavit of the police officer to whom the detention order was forwarded for execution was not filed, to explain the delay of 10 months in securingthe detention of the detenue, the order of detention gets vitiated. (25). In the case of K.P.M. Basheer vs. State of Karnataka & Anr. (8) there was delay of five months and 17 days in the execution of the detention order. The averment of the detenue that he had appeared before the Assistant Collector of Customs on certain dates was not denied in the counter. On this, it was held thatthe arresting officer did not take any real and genuine effort to secure and detain the appellant. The Apex Court held that the `live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him and, therefore, the order of detention was liable to be set aside on this groundalone. (26). The Apex Court held that the `live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him and, therefore, the order of detention was liable to be set aside on this groundalone. (26). Similarly in the case of Shafiq Ahmad vs. District Magistrate, Merrut (9), the Honble Apex Court held that the delay of six months in arresting the detenue from the date of order of detention vitiated the detention. In that case it was held at para no. 6 that it is not that in each and every case delay in execution of the deten-tion order is fatal but it will depend upon the facts of each case. Their lordships of the Supreme Court observed that no attempt was made to contract or arrest the petitioner between 15.4.88 to 12.5.88 and no explanation was given for this and that further no explanation was given why from 29.9.88 to 2.10.88 no attempt was made. It was found that there was obvious delay and the delay was unexplained and, there-fore, the detention order was vitiated. (27). So also in the case of Anwar Singh vs. State of Rajasthan (10) this Court held that the unexplained delay of 10 months in the execution vitiated the detention. In that case it was held that alleged abscondance on the part of detenue was not established and there was no proof that sincere efforts were made to arrest thedetenue. (28). Mr. Joshi placed reliance on the case of Syed Farooq Mohammad vs. Union of India (11) to emphasise that the delay in arresting and serving the order on detenue is not fatal. The case is disinguishable on facts. In that case an affidavit was filed to the effect that two notices were served on the petitioners mother andbrother directing the petitioner to appear before the detaining authority. It was further stated in the affidavit that the petitioner had intentionally absconded and thereby evaded arrest. Thus, the delay was explained satisfactorily. It is in these circumstances, it was held that the link between the grounds of detention and the avowed purpose of detention was not snapped. It is also to be noticed that in thatcase the petitioner was arrested and detained within less than two months of the detention order. (29). Thus, the delay was explained satisfactorily. It is in these circumstances, it was held that the link between the grounds of detention and the avowed purpose of detention was not snapped. It is also to be noticed that in thatcase the petitioner was arrested and detained within less than two months of the detention order. (29). In the instant case, as already stated, the detention order was not served for 4-1/2 years and no affidavit has been filed by the person who was deputed to execute the detention order. We have already seen that the detenue had appearedin person in the court of Judicial Magistrate, Economic Offences on 19.4.93 and that case was filed by none-else than the sponsoring authority i.e. the Customs Department. The fact remains that the delay of 4-1/2 years goes unexplained on record. This by itself vitiates the detention. (30). Consequently, we hold that the impugned order is liable to be quashed on the two grounds canvassed by Mr. Mehta. (31). In the result, the petition succeeds. The order impugned is hereby quashed. The detenue is directed to set at liberty, if he is not required to be detained under the orders of any lawful authority.