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1997 DIGILAW 928 (RAJ)

RAHEEM KHAN v. STATE OF RAJASTHAN

1997-08-04

G.L.GUPTA, S.C.MITAL

body1997
Judgment GUPTA, J. ( 1 ) 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 grounds that (i) the detention order Annexure 1 was passed after delay of nearly six months from the alleged seizure of the 250 foreign marked gold biscuits from a bag held by the petitioner on 20-3-1992, (ii) the detenu was already in custody and, therefore, there was no justification for passing the detention order, (iii) the detenu 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 period of 41/2 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. It was averred that the detenu 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 no inordinate 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 that the detenu 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 and explained to the detenu and, therefore, he was unable to make effective representation and (ii) the detention order was served after a period of 41/2 years and no explanation has been given of this delay. ( 7 ) MR. Sunil Joshi appearing on behalf of respondent No. 1 contended that the detenu 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 detenu has not pleaded that he did not understand Hindi and, therefore, the detention order is not liable to be struck down on this ground. His further contention was that the detenu 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 was 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 detenu maintained in the Central Jail Jodhpur to establish that the detention order was read over and explained to the detenu. ( 9 ) WE have given the matter our thoughtful consideration. ( 8 ) MR. Jasmatia, learned Additional Advocate General contended that the detention order does not suffer from any infirmity. He submitted the file of the detenu maintained in the Central Jail Jodhpur to establish that the detention order was read over and explained to the detenu. ( 9 ) WE have given the matter our thoughtful consideration. The first question to be determined is whether the detenu 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 detenu 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 detenu 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 that the detenu 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 detenu. ( 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 detenu on 10-12-1996 by Shri J. K. Katta, Supdt. Customs and the order was read over and explained to the detenu in his language and the detenu fully understood the detention order. Thus the endorsement indicates that the detention order was read over and explained to the detenu 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 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 had read over and explained the detention order to the detenu. Even it has not been stated in the affidavit that he was present when the detention order was served on the detenu. ( 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 and explained to the detenu. A note also appears on the detention order to this effect that the detenu 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 detenu Raheem had put his signatures on the copy of the detention order 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 detenu. 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 detenu on 10-12-1996 when it was served upon him. ( 13 ) THE fact that the detenu 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 detenu understood. The reply indicates that it was the duty of the detenu 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 detained authority to have read over and explained the detention order and the grounds of detention to the detenu when he was illiterate, in order to enable him to make effective representation. This plea is not tenable. Rather it was the duty of the detained authority to have read over and explained the detention order and the grounds of detention to the detenu 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 petitioner ought 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 v. Administrator, Union Territory of Delhi, 1987 Cri LR (SC) 265 : (1987 Cri LJ 989) the Honble Supreme Court has clearly held that the detenu 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 v. State of Jammu and Kashmir, AIR 1971 SC 263 : (1971 Cri LJ 281) also held that the grounds of detention should be explained to the detenu in the language he understands in order to enable him to make effective representation. This principle was reiterated in the case of Smt. Raziya Umar Bakshi v. Union of India, AIR 1980 SC 1751 . ( 17 ) THIS Court also took a similar view in the D. B. Habeas Corpus Petition No. 321/1996 Sawai Singh v. Union of India decided on 5-7-96 following the dictum of Mrs. Tsering Dolkars case (1987 Cri LJ 988) (supra ). ( 18 ) AGAIN in the case of Bawla Khan v. State of Raj. , D. B. Habeas Corpus Petition No. 5277 of 1990 this Court quashed the detention order on the ground that the grounds of detention were not read over and explained to the detenu in the language, which he understood. In that case, as in the instant case, the plea of detenu was that he could not read or write Hindi. ( 19 ) MR. In that case, as in the instant case, the plea of detenu was that he could not read or write Hindi. ( 19 ) MR. Joshi strongly relied on the case of Prakash Chandra Mehta v. Commr. and Secretary Govt. of Kerala, (1985) Supp SCC 144 : (1986 Cri LJ 786) to emphasise that when the grounds are known to the detenu the order should not be quashed. The facts of that case were that the grounds of detention supplied to the detenu were in English. The contention of the petitioner was that he did not know English and there were circumstances on record that the detenu 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 detenu knew both Hindi and English. Not only this, there was material on record to hold that the detenu was in 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 detenu and held that the detenu 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 controverted that the detenu 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 detenu 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 41/2 years. In the return it has been averred that the detenu was not available for all these 41/2 years and, therefore, there was delay in the service of the 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 detenu. ( 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 detenu. A look at the order sheets indicates that the petitioner was present in person in the Court atleast on 19-4-1993 and, therefore, it cannot be said that it was possible to serve the detention order upon him before 10th Dec. , 1996. ( 23 ) MR. Joshi invited our attention to this fact that except on one date of hearing the detenu 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 sponsoring authority in this case was customs department, who had prosecuted the detenu 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 detenu had no property which could be attached. Apart from this, no affidavit of the person who was deputed to execute the order Annexure 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 detenu. ( 24 ) IT has been held in the case of Kishan Singh v. State of Rajasthan, 1991 0 Crlr 112 : (1992 Cri LJ 592) 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 securing the detention of the detenu, the order of detention gets vitiated. ( 25 ) IN the case of K. P. M. Basheer v. State of Karnataka, (1992) 3 JT (SC) 610 : (1992 Cri LJ 1927) there was delay of five months and 17 days in the execution of the detention order. The averment of the detenu that he had appeared before the Assistant Collector of Customs on certain dates was not denied in the counter. The averment of the detenu that he had appeared before the Assistant Collector of Customs on certain dates was not denied in the counter. On this, it was held that the 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/detenu and and detaining him and, therefore, the order of detention was liable to be set aside on this ground alone. ( 26 ) SIMILARLY in the case of Shafiq Ahmad v. District Magistrate, Meerut, AIR 1990 SC 220 : (1990 Cri LJ 573), the Honble Apex Court held that the delay of six months in arresting the detenu 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 detention 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 contact 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, therefore, the detention order was vitiated. ( 27 ) SO also in the case of Anwar Singh v. State of Rajasthan, (1995) 1 WLC 634 (Raj) 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 detenu was not established and there was no proof that sincere efforts were made to arrest the detenu. ( 28 ) MR. Joshi placed reliance on the case of Syed Farooq Mohammad v. Union of India, (1990) 3 SCC 537 : (1990 Cri LJ 1622) to emphasise that the delay in arresting and serving the order on detenu is not fatal. The case is distinguishable on facts. In that case an affidavit was filed to the effect that two notices were served on the petitioners mother and brother directing the petitioner to appear before the detaining authority. The case is distinguishable on facts. In that case an affidavit was filed to the effect that two notices were served on the petitioners mother and brother 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 that case 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 41/2 years and no affidavit has been filed by the person who was deputed to execute the detention order. We have already seen that the detenu had appeared in 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 41/2 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 detenu is directed to set at liberty, if he is not required to be detained under the orders of any lawful authority. Petition allowed.