MOHAMMAD JAMIL v. UNION OF INDIA — 1999 DIGILAW 331 (CAL)

DEBIPRASAD SENGUPTA, J. ( 1 ) ON July, 29, 1998 the petitioner was arrested by the Custom Authority from Netaji Subhas Chandra Bose International Airport, Calcutta in connection with a case being Case No. C-924 of 1998. The allegation made against the petitioner is that a sum of Rs. 13,34,500/- (Indian Currency) was recovered from the possession of the petitioner and on demand the petitioner failed to justify the possession of the said amount by producing any valid document. ( 2 ) THE petitioner was subsequently released on bail on September 7, 1998 by this Court in connection with the aforesaid case and while granting bail a condition was imposed directing the petitioner to meet in Investigating Officer Mr. A. K. Singh at Customs House, 15, Strand Road, Calcutta thrice a week, i. e. , on every Monday, Wednesday and Friday. ( 3 ) WHILE on bail the petitioner complied with the conditions imposed by this Court. On November 6, 1998 the petitioner was detained by Sri A. K. Singh, the Investigating Officer of Customs Case No. C-924 of 1998 when the petitioner had been to the Customs House in compliance with the direction of this Court. The petitioner was served with an order of detention under Section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, bearing No. 673/71/98 CUS VIII dated November 3, 1998 issued by Sri Somnath Pal, Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, COFEPOSA Section. Aggrieved thereby the petitioner has preferred this application under Article 226 of the Constitution of India seeking a Writ of Habeas Corpus. ( 4 ) THE petitioner has challenged his detention order on a number of grounds. The first point raised by Mr. Anjan Mukherjee, learned Advocate appearing for the petitioner is that immediately after the incident the passport of the petitioner was handed over to the Customs Authorities, which made it impossible for the petitioner to go abroad. In other words having seized his passport the Customs Authority made it impossible for the petitioner to indulge in any prejudicial activity. ( 5 ) IT appears from the detention order that such order was issued with a view to preventing him from smuggling of goods in future. In other words having seized his passport the Customs Authority made it impossible for the petitioner to indulge in any prejudicial activity. ( 5 ) IT appears from the detention order that such order was issued with a view to preventing him from smuggling of goods in future. It appears from the document annexed to the writ application at page 94 that the passport of the detenu was handed over to the Customs Authority on 29-7-98. In our considered opinion where the detention is only for the purpose of preventing the detenu from smuggling of goods in future and while in such cases the passport of the detenu is impounded, the detention would be bad inasmuch as the detenu by seizure of the passport has been sufficiently restrained from going abroad and therefore he cannot be said to be in a position to engage himself in the act of smuggling. This fact was not taken into consideration by the detaining authority, who issued the order of detention without proper application of mind. ( 6 ) IN support of his contention made above Mr. Mukherjee, learned Advocate of the petitioner has cited a judgment of Delhi High Court reported in 1989 Cri LJ 262, wherein it was held as follows (at Pp. 263 and 264 of Cri LJ) :ping with my consistent view that where detention is merely with a view to prevent the petitioner from smuggling goods and while by seizing the passport the likely prejudicial activity sufficiently stands defeated and where it is made impossible for the detenu to proceed abroad the detention order would be deemed to have been passed without proper application of mind. It would be rather punitive in nature. In the present case, I find by the seizure of passport detenu had been sufficiently prevented from indulging in the alleged activity and the order of detention in that view is vitiated. " ( 7 ) MR. Mukherjee, learned Advocate submits that after the petitioner was arrested he was granted bail by this Court on 7th September, 1998 on condition that the detenu/petitioner would meet the Investigating Officer thrice a week, i. e. onmonday, Wednesday and Friday. Mr. Mukherjee submits that there is a complete non-application of mind by the detaining authority as it did not take into consideration the bail application and the conditional order of release passed by this Court. Mr. Mukherjee submits that there is a complete non-application of mind by the detaining authority as it did not take into consideration the bail application and the conditional order of release passed by this Court. According to the learned Counsel a restriction has already been imposed on the detenu by the order passed by this Court in his bail application, which sufficiently prevented him from indulging in the act of smuggling, which was sought to be prevented by the impugned order. Had these facts been properly considered by the detaining authority, it might have come to a different conclusion. In our opinion the most important document namely the bail application and the order of granting bail was not taken into consideration by the detaining authority. Such non-consideration, in our opinion, amounts to non-application of mind by the detaining authority rendering the detention order invalid. ( 8 ) IN support of his contention Mr. Mukherjee learned Advocate relies on a judgment of Delhi High Court, reported in 1988 Cri LJ 802, in which the Hon'ble Court held as follows (Para 8) :"in the present case, admittedly, the most material documents which have not been considered by the detaining authority are the bail applications and the orders passed thereon. Absence of consideration of these documents, to my mind, amounts to non-application of mind on the part of the detaining authority rendering the detention order invalid. If the detaining authority had considered these documents, one cannot state with definiteness which way, the subjective satisfaction of the detaining authority would have reacted. The conditional bail order of the High Court could have persuaded the detaining authority to desist from passing the order of detention since the restriction on the freedom of movement was sufficient to prevent him from indulging in the smuggling activities. " ( 9 ) THE next point formulated by Mr. Mukherjee, is that there is an unexplained delay from the date of the alleged incident or offence and the date of detention order vitiating the detention order itself. It is his further submission that where an unreasonable long time has passed between the date of alleged offence and the date on which the order of detention is issued, it can be said that there is no nexus between the alleged incident and the order of detention and such order of detention is liable to be struck down. It is his further submission that where an unreasonable long time has passed between the date of alleged offence and the date on which the order of detention is issued, it can be said that there is no nexus between the alleged incident and the order of detention and such order of detention is liable to be struck down. The petitioner was arrested on 28-7-98 and he was granted bail on 7-9-98. The order of detention was issued on 3-11-98, i. e. more than three months after the alleged incident. There is no explanation for such delay of more than three months, which is quite fatal to the order of detention. ( 10 ) MR. Mukherjee relies on a judgment of the Hon'ble Supreme Court, reported in 1990 SCC (Cri) 96 : ( AIR 1990 SC 516 ), wherein it was held by the Hon'ble Apex Court as follows (at Pp. 521 and 522 of AIR) :"the learned counsel also contended that there is an unexplained delay which makes the ground of detention not proximate vitiating the order of detention itself. The theft of the wire was on February 14, 1989 and the FIR was registered on February 15, 1989. On that day itself as seen from the record Jagdish, Santosh and Munshi Sharma were shown as accused on the basis of some information. The house of Jagdish was raided on March 3, 1989 and on the same day the factory of the detenu was raided and 20 Kg of melted wire was recovered from Munshi Sharma but no action was taken till May 2, 1989 against the detenu. On being arrested on May 2, 1989 the detenu moved a bail application and the detention order itself was made on May 3, 1989. Though bail was granted in view of the detention order he could not be released from Jail. In spite of the fact that the recovery statement itself was made as early as on March 3, 1989 no action was taken till May 3, 1989. Nothing more is stated in the detention order. The delay has also not been satisfactorily explained in the counter-statement of the respondents. The ground instance, therefore, could not be a proximate cause for a sudden decision to take action under the National Security Act and this also vitiates the order. Nothing more is stated in the detention order. The delay has also not been satisfactorily explained in the counter-statement of the respondents. The ground instance, therefore, could not be a proximate cause for a sudden decision to take action under the National Security Act and this also vitiates the order. ""in the result we allow this writ petition set aside the order of detention and direct that the detenu be released forthwith. " ( 11 ) MR. Mukherjee also relies on a judgment of the Delhi High Court, reported in 1988 Cri LJ 802, in which it was held by the Hon'ble Court as follows :"with this background the explanation can be examined. Prima facie on the face of it, the explanation, if it can be called so, is devoid of any substance. It is not shown as to how much timewas consumed in the investigation, and its completion, particularly, when most of the documents and statements have already come into existence at the time of the arrest of the petitioner and/or immediately thereafter on the search of the premises. It is not stated as to how many witnesses were examined and if so on what dates. It is also not made clear as to how bulky and in what numbers the documents were required to be translated in Bengali and to whom this job was entrusted. The affidavit of the person concerned should have been placed on record explaining the number of days it consumed in getting the documents translated in Bengali. In fact there is no explanation in the eye of law and this delay of four months is quite fatal to the order of detention. " ( 12 ) WE have gone through the judgments referred to above and we have also gone through the affidavit-in-opposition filed on behalf of the respondents. In our considered opinion, delay has not been satisfactorily explained in the counter-affidavit of the respondents, which vitiates the order of detention. ( 13 ) THE last point argued by Mr. Mukherjee is that the detenu/petitioner was served with some papers written in English language on November 7, 1998 and thereafter on November 10, 1998 in Hindi language. It is the contention of the petitioner's learned Advocate that since the petitioner cannot read English or Hindi, he could not understand the contents of the documents served upon him. Mukherjee is that the detenu/petitioner was served with some papers written in English language on November 7, 1998 and thereafter on November 10, 1998 in Hindi language. It is the contention of the petitioner's learned Advocate that since the petitioner cannot read English or Hindi, he could not understand the contents of the documents served upon him. It is further submitted that the petitioner has read up to Class II standard and he can only sign his name in English. The petitioner does not have any workable knowledge of reading/writing of English or Hindi language and he can only understand Hindi if spoken to him. The learned Counsel further submits the petitioner was unaware of the grounds of detention on which he has been detained inasmuch as the petitioner was never explained the grounds of detention on which the purported detention order was issued. Neither in the impugned order of detention nor in the grounds of detention there is any endorsement made by the authority indicating that the grounds were explained to him in any other language. ( 14 ) IN the counter-affidavit it is suggested by the detaining authority that as the detenu had signed a number of documents in English, it must be presumed that he was fully conversant with English language. The learned Advocate appearing for the respondents draws our attention to pages 102, 103 and 150 of the writ application, wherefrom it appears that the detenu put his signature in English in some documents. But this type of short signature does not indicate that the detenu had any workable knowledge in English. ( 15 ) IN support of his contention Mr. Mukherjee, learned Advocate of the petitioner relies on a judgment, reported in AIR 1990 SC 605 : (1990 Cri LJ 796 ). In the said judgment the Hon'ble Apex Court held as follows (Para 5) :"it is settled law that the communication of the grounds which is required by the earlier part of the clause is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause. A communication in this context must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attributable to him. A communication in this context must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attributable to him. Such a communication would be there when it is made in a language understood by the detenu, as was held in Harikisan v. The State of Maharashtra, 1962 Suppl (2) SCR 918 : AIR 1962 SC 911 : (1962 (1) Cri LJ 797 ). In Razia Umar Bakshi v. Union of India, (1980) 3 SCR 1398 : AIR 1980 SC 1751 , Fazal Ali, J. held (at p. 1752) that the service of the grounds of detention on the detenu was a very precious constitutional right and where the grounds were couched in a language which was not known to the detenu, unless the contents of the grounds were fully explained and translated to the detenu, it would tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie. In Nainmal Partap Mal Shah v. Union of India, (1980) 4 SCC 427 : AIR 1980 SC 2129 : (1980 Cri LJ 1479) the detenu stated that he did not know the English language and, therefore, could not understand the grounds of detention, nor he was given a copy of the grounds duly translated in vernacular language. In the counter-affidavit the detaining authority suggested that as the detenu had signed a number of documents in English, it must be presumed that he was fully conversant with English. Rejecting the contention it was held by this Court that merely because he may have signed some documents, it could not be presumed, in absence of cogent material, that he had working knowledge of English and underthose circumstances there had been clear violation of the constitutional provisions of Article 22 (3) so as to vitiate the order of detention. Thus what was considered necessary was a working knowledge of English or fully explanation or translation. " ( 16 ) MR. Thus what was considered necessary was a working knowledge of English or fully explanation or translation. " ( 16 ) MR. Mukherjee next relies on a judgment, reported in AIR 1980 SC 1751 , wherein the Hon'ble Supreme Court held as follows (Para 5) :"in cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language which he understands. A bare statement at the stage when Habeas Corpus petition is filed in the Court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation, AIR 1969 SC 43 : (1969 Cri LJ 274), Rel. on. " ( 17 ) THE next judgment relied upon by the petitioner's learned Advocate is a judgment of Bombay High Court, reported in 1983 Cri LJ 1468. In paragraph 10 (4) of the judgment the Hon'ble Court held as follows :"in the case of a detenu not acquainted with the English language it would be substantial compliance with the requirement of law if the order of detention is explained to the detenu in the language with which he is familiar even though the order is not in substance incorporated in the grounds of detention. This is so even if the order of detention and the grounds of detention are served upon the detenu at different times. However, the fact that the order has been explained must be established by proper material placed before the Court by the detaining authority. "relying on the aforesaid decision it was submitted by the petitioner's learned Advocate that there is no endorsement made by the authority, neither in the detention order nor in the grounds of detention, indicating that the same were explained to the detenu in the language known to him. ( 18 ) MR. "relying on the aforesaid decision it was submitted by the petitioner's learned Advocate that there is no endorsement made by the authority, neither in the detention order nor in the grounds of detention, indicating that the same were explained to the detenu in the language known to him. ( 18 ) MR. Mukherjee cites another judgment of the Hon'ble Supreme Court, reported in (1999 (1) JT (SC) 31, in which it was held as follows :"the law relating to preventive detention has been crystallized and the principles are well neigh settled. The amplitude of the safeguard embodied in Art. 22 (5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understand by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. " ( 19 ) THE learned Advocate appearing for the respondents submits that the order of detention was passed with proper application of mind by the detaining authority. The learned Advocate submits that it can never be said that by seizure of passport the detenu was sufficiently restrained from indulging in the act of smuggling. Even after the passport is seized, according to him, the detenu can very much be in a position to continue with his smuggling activities. But we cannot accept such submissions made by the learned Advocate of the respondents. In our considered view, where the detention is only for the purpose of preventing the detenu from smuggling of goods in future and where in such cases the passport of the detenu is impounded, the detention would be bad in law inasmuch as the detenu, by seizure of passport, has been sufficiently restrained from going abroad and therefore he cannot be said to be in a position to engage himself in the act of smuggling. We are of the opinion that this fact was not taken into consideration by the detaining authority, who passed the order of detention without proper application of mind. We are of the opinion that this fact was not taken into consideration by the detaining authority, who passed the order of detention without proper application of mind. ( 20 ) THE learned Advocate of the respondent submits that there is no doubt that some stringent condition was imposed by this Court while granting bail to the detenu/petitioner, who was directed by this Court to meet the Investigating Officer thrice a week. According to him the order of granting bail does not have any connection with the preventive detention and even in spite of such direction it was possible for the detenu to indulge in smuggling activities. We are sorry to say that we do not find any merit in such submission for the reason which we have already discussed in paragraphs 7 and 8 of this judgment. We are of theview that sufficient restriction was imposed upon the detenu/petitioner while he was granted bail by this Court, which sufficiently prevented him from indulging in the act of smuggling which was sought to be prevented by the impugned order of detention. This fact was not taken into consideration by the detaining authority while passing the order of detention. ( 21 ) IN reply to the argument made by the petitioner's learned Advocate regarding the delay in passing the order of detention, it is submitted by the learned Advocate of the respondents that although there is a delay of more than three months in passing the detention order, such delay is not at all fatal. According to him the test of proximity is not a mere mechanical test. The learned Counsel relies on a judgment reported in AIR 1979 SC 456 : (1979 Cri LJ 212), in which it was held as follows (Para 5) :"the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. The question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities. AIR 1975 SC 473 : (1975 Cri LJ 429), Rel. on. "in delivering the aforesaid judgment the Hon'ble Apex Court relied on an earlier judgment, reported in AIR 1975 SC 473 : (1975 Cri LJ 429 ). AIR 1975 SC 473 : (1975 Cri LJ 429), Rel. on. "in delivering the aforesaid judgment the Hon'ble Apex Court relied on an earlier judgment, reported in AIR 1975 SC 473 : (1975 Cri LJ 429 ). The said judgment was also placed before us. We have carefully gone through the judgments relied upon by learned Advocate of the respondents. The ratio of the aforesaid two judgments is that the detaining authority must be satisfied about the fact that the past activities of the detenu are such that the detaining authority can reasonably come to a conclusion that the detenu is likely to continue his illegal activities. We are of the opinion that the aforesaid two judgments are not at all applicable in the instant case. The present case is completely different from those two cases referred to above. In the instant case there is no past criminal activity of the detenu from which the detaining authority can be satisfied that the detenu is likely to indulge in criminal activity in future. Apart from that the delay of more than three months in passing the order of detention has not been properly explained. We have carefully gone through the counter-affidavit filed by the respondents and we find that there is no explanation of such delay, which, in our opinion vitiates the detention order. Regarding violation of the provision of Article 22 (5) of the Constitution of India it is submitted by the learned Advocate appearing for the respondents that mere plea that the grounds of detention were served in a language not known to him is not at all maintainable when the detenu does not raise the objection that he does not understand the language in which the grounds have been served on him. The learned counsel has relied on a judgment reported in AIR 1973 SC 1328 : (1973 Cri LJ 1268 ). We have gone through the said judgment and we are of the opinion that the said judgment of the Apex Court is not applicable in the instant case. In the said case the District Magistrate affirmed an affidavit stating that the grounds of detention were supplied to the detenu in English language and also in Punjabi (Gurumukhi Script ). We have gone through the said judgment and we are of the opinion that the said judgment of the Apex Court is not applicable in the instant case. In the said case the District Magistrate affirmed an affidavit stating that the grounds of detention were supplied to the detenu in English language and also in Punjabi (Gurumukhi Script ). Apart from that another affidavit was affirmed by the Superintendent of Central Jail, Amritsar stating that after the grounds of detention were served upon the detenu in English and Gurumukhi those were also read over and explained to him in Punjabi language. The Superintendent also stated that the detenu never raised any objection that he could not understand the Punjabi language, in which the grounds were explained. But in the present case it becomes evident that there is no endorsement either in the order of detention or in the grounds of detention to the effect that the grounds of detention were explained to the detenu by the detaining authority or any officer of the jail authority. None has come forward with an affidavit stating that he had personally explained the grounds to the detenu, as it was done in the case referred to above. In our view, where the detenu is not in a position to understand the grounds of detention, it is the bounden duty of the detaining authority to see that the grounds are explained to the detenu in the language known to him and the grounds must bear some sort of certificate/endorsement to show that the grounds have been explained to the detenu in the language known to him. A bare statement at a later stage, when the Habeas Corpus application has been filed in Court, by the detaining authority stating that such formalities have been complied with is of no consequence specially when such statement is not supported by any document oraffidavit. So, we are unable to accept the arguments advanced by the learned Advocate of the respondents in this regard. In the result, we find sufficient merit in the arguments made by Mr. Anjan Mukherjee, learned Advocate of the petitioner and we hold that the continued detention of the detenu is bad in law and the order of detention is liable to be quashed. In the result, we find sufficient merit in the arguments made by Mr. Anjan Mukherjee, learned Advocate of the petitioner and we hold that the continued detention of the detenu is bad in law and the order of detention is liable to be quashed. In the facts and circumstances of the case and as a result of the above discussion, we accept the petition and quash the order of detention. The petitioner be released forthwith unless he is required to be detained under any other order of competent Court or Authority. ( 22 ) NURE ALAM CHOWDHURY, J. :- I agree. Mr. Mukherjee, learned Advocate appearing for Union of India, prays for stay of the operation of the judgment passed today. Such prayer is refused. Petition allowed.