Calcutta High Court
Kamala Devi Kedia vs Union Of India (Uoi) on 9 September, 1998
Equivalent citations: 1999CRILJ4394
JUDGMENT Gitesh Ranjan Bhattacharjee, J.
1. This is an application under Article 226 of the Constitution challenging the order of detention of the detenu passed in exercise by the power conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended). The applicant/petitioner who is the wife of the detenu has filed this petition on behalf of the detenu. The order of detention was passed by the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue on the 25th May, 1998. The said order of detention was executed against the detenu on the 29th June, 1998 and since then he is in detention in the Presidency Jail, Calcutta. The detention, as the order purportingly announced, was considered necessary with a view to preventing the detenu in future from acting in any manner prejudicial to the augmentation of foreign exchange. While in detention the petitioner sent two representations dated 13-7-1998 against his detention, one addressed to the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue (the detaining authority) and the other to the Secretary to the Govt. of India, Ministry of Finance, Department of Revenue praying for revocation of the order of detention. Both the representations were however rejected.
2. It is submitted before us on behalf of the petitioner at the time of hearing that the allegation against the detenu is that he is an abettor, but the principal offender in this case has already been released by the Advisory Board on ground of lack of sufficient reasons to justify detention. All that we need say in this connection is that the fact that the principal offender has been released is by itself no reason to release the detenu also and this is also conceded by the learned Advocate for the petitioner.
3. In the first branch of his submission the learned Advocate for the petitioner highlights that some of the documents supplied to the detenu were in a language not understood by the detenu and some documents were truncated documents while some documents were illegible and some documents relied upon by the detaining authority were not supplied to the detenu at all. The other branch of his attack is that there was unexplained delay on the part of the concerned authorities in disposing of the representations he made against his detention. As regards the illegible documents supplied to the detenu the learned Advocate for the petitioner generally attracts our attention to para 24 of the writ petition wherein documents stated to be illegible as well as documents in which portions were blackened have been referred to. The learned Advocate for the petitioner however attracts our particular attention in this connection to the documents which are the last four pages of Volume II and pages 806,807 and 835 to 838 of the Volume III of the paper book. Our attention has also been drawn to the documents at pages 896,909 and 1076 of Volume IV of the paper book some portions of which are blackened. On perusal of those documents stated to be illegible or blackened we find that while some portions of those documents are readable some portions are however not readable. The learned Advocate for the petitioner refers to the Division Bench decision of this Court in Tapas Chowdhury v. Union of India, 1996 Cri LJ 579 as well as the decisions of the Supreme Court referred to therein support of his contention that non-supply of legible copies of documents or for that matter supply of illegible copies of documents relied upon by the detaining authority makes the detention order bad. There is no doubt that the law is settled that supply of illegible copies of documents relied upon by the detaining authority in passing the detention order virtually amounts to non-supply of such documents which vitiates the detention (Tapas Chowdhury v. Union of India (1996 Cri LJ 579) (supra). In paragraph 25 of the affidavit-in-opposition it is however stated by the respondents that the detenu has been provided fully legible copies of relied upon documents excepting for a few documents which were submitted by the detenu and others in not fully legible condition though the relevant contents thereof could be deciphered. As regards the blackened portions of certain documents, in paragraph 25 of the affidavit-in-opposition it is stated that those documents can be read and understood without difficulty about their nature, essential contents and purpose and therefore the detaining authority could easily apply its mind on those documents as well. So in paragraph 25 of the affidavit-in-opposition it is acknowledged by the respondents that some of the supplied documents contain illegible portions and blackened portions. It is not the only question whether the detaining authority could apply his mind in the matter by going through the legible portions and ignoring thetllegible portions of particular documents, but the further question also remains as to whether the supply of illegible documents prevented the detenu from making effective representation in the matter. If no indication has been given to the detenu in the grounds of detention that the detaining authority while considering the concerned documents only relied upon the legible portions of the concerned documents ignoring the illegible portions, it may not be possible for the detenu to understand that the detaining authority took into consideration only the legible portions ignoring the illegible portions of the documents supplied to him and if he cannot understand so, he may be reasonably expecting that in passing the detention order the detaining authority has taken into consideration the whole of the concerned documents including the portions which are appearing illegible in the documents supplied to him and in such a situation it is quite likely that he might have been prejudiced in making his representation in the matter. In the present case it has not been indicated to the detenu that the legible portions of the documents were only taken into consideration by the detaining authority or were sufficient for the detaining authority to form his opinion in the matter. Nor has it has also specifically shown before us at the time of hearing that the detaining authority only took into consideration while passing the deten- tion order such portions of the concerned documents which are legible ignoring such portions which are appearing as illegible in the documents supplied to the detenu. That being so, in view of the judicial pronouncements holding the field, we have to hold that supply of illegible documents virtually amounts to non-supply of relevant documents which vitiates the detention.
4. As regards the grievance reading supply of truncated documents reference has been made to certain documents but on perusal of the same we however do not find that as a matter of fact there is anything substantially truncated. There is therefore no substance in this contention.
5. It is next contended on behalf of the petitioner that the detenu was supplied with some documents in foreign language with which the detenu was not conversant. In paragraph 26 of the affidavit-in-opposition it is stated by the respondents in that connection that certain pages of the documents contain certain endorsement in Thai language and those documents were submitted in the Court in Delhi on behalf of Amrik Singh Saluja (another offender). It is also stated therein that those documents were enclosure to the application dated 24-3-1998 of Sri Amrik Singh Saluja filed in the Court of Additional Chief Metropolitan Magistrate, New Delhi and that the application was made in English language and the contents of these enclosures had been explained in paragraphs 4 and 6 of the said application of Saluja. That however is not sufficient. If the endorsements in Thai language were relied upon and were taken into consideration in passing the impugned order of detention the detenu should have been supplied with a translation of the same in the language which he understood. It is not the case of the respondents that these endorsements or portions of documents in Thai language were not at all taken into consideration in passing the impugned order of detention.
6. The petitioner has also made grievance that the detenu was not supplied with copy of the order of the Court rejecting the application for anticipatory bail. In our opinion that however is not fatal because the detaining authority relied upon the factum of rejection of the application for anticipatory bail and it was not necessary that the entire copy of the order should have been supplied. A relevant portion of the order on the anticipatory bail application was also quoted in paragraph 17 of the grounds of detention order supplied to the detenu.
7. It is also the grievance of the petitioner as contended before us that some of the documents supplied to the detenu were in Hindi language but the petitioner cannot read or write Hindi although he can only put signature in Hindi. In paragraph 21 of the affidavit-in-opposition it is stated by the respondents that the detenu acknowledged receipt of the detention order in Hindi language in writing and his mother tongue appears to be Hindi and the detenu also made some remarks in Hindi while acknowledging receipt of the detention order which clearly indicates that the detenu can read and write in Hindi. This averment in the affidavit-in-opposition that the detenu not only signed in Hindu but also made some remarks in Hindi while acknowledging receipt of the detention order -has not been specifically denied in paragraph 19 of the affida-vit-in-reply which inter alia deals with paragraph 21 of the affidavit-in-opposition. That being so it is not acceptable that the detenu cannot read or write Hindi when evidently he put his signature in Hindi and also made some remarks in Hindi in acknowledging the detention order which rather indicates that he has workable knowledge in reading and writing Hindi. Therefore there is no question of supplying English translation of the Hindi documents to the detenu.
8. The most vital aspect of the attack of the petitioner in this matter is regarding the question of delay in disposing of the representations submitted by the detenu against his detention. In paragraph 28 of the writ petition it is specifically stated that the petitioner addressed two representations both dated the 13th July, 1998, - one addressed to the Joint Secretary and the other to the Secretary and that the said representations were required to be considered by the respective authorities expeditiously and independently. In that connection the petitioner in that paragraph also called upon the respondents to satisfy the Court that the representations of the detenu had been considered expeditiously without any delay and independently failing which detention of the detenu should be liable to be quashed or set aside. The said paragraph 28 of the writ petition has been dealt with in paragraph 30 of the affidavit-in-opposition wherein it is only stated that the two representations both dated the 13th July, 1998 were duly considered and rejected and replies were sent to the detenu to that effect. It is also pointed out before us that the representation to the Joint Secretary, the detaining authority, was rejected on 31-7-1998 thereby involving a time-gap of 18 days and the representation to the Secretary was rejected on 4-8-1998 involving a time-gap of 22 days. In paragraph 30 of the affidavit-in-opposition it is categorically denied that there was no unreasonable delay in passing the detention order. But no attempt has been made to explain why the representations could not be disposed of earlier. The learned Advocate for the petitioner has, in this connection, relied upon a number of decisions of the Apex Court, namely, Durga Show In Re , P. ShankarDhur v. S. G. Pradhan , Prof. K. Ibocha Singh v. State of Manipur , Vijay Kumar v. State of Jammu and Kashmir , Kundan Bhai v. District Magistrate , Ven Mathi v. State of Tamil Nadu , Harish Pahwa v. State of U.P. . In the case of Durga Show (supra) the detention was quashed for an unexplained delay of 16 days only. In the case of Prof. K. Ibocha Singh (supra) the Supreme Court quashed the detention order for an unexplained delay of 17 days in disposing of the representation of the detenu. In Kundan Bhai (supra) the Supreme Court quashed the detention for a delay of 18 days, not properly explained, in disposing of the representation of the detenu. In Ven Mathi (supra) the Supreme Court held an unexplained delay of about three weeks, in disposing of the representation of the detenu, fatal for continued detention. In Vijay Kumar (supra) there was a delay of 14 days in transit and a time-gap of 19 days thereafter in disposing of the representation by the Government. The Supreme Court quashed the detention. From the reported decisions of the Supreme Court as noted above it is evident that even an unexplained time-gap of about 16 days in disposing of the representation of the detenu against the order of detention has been treated as fatal to continued detention.
9. On the other hand the learned Advocate for the respondents has relied upon two decisions of the Supreme Court, namely, U. Vijaya Lakshmi v. State of T.N., 1995 SCC (Cri) 176 : 1993 Cri LJ 3913 and Panna v. A. S. Samra, 1995 SCC (Cri) 137 : 1994 Cri LJ 1111. In the first mentioned case, namely, U. Vijaya Lakshmi (supra) the detenu made representation on 11-5-1992 and the Government conveyed rejection thereof on 23-6-1992 involving a time-gap of about 43 days and Supreme Court however found that this delay was suitably explained by the respondents. In the other case, namely, Panna (supra) the representation was submitted by the detenu on 24-4-1992 and the rejection was communicated to the detenu on 15-6-1992. The Supreme Court however found in this case also that the delay was properly explained. There is no doubt that there is no fixed time limit within which a representation against the order of detention is required to be disposed of. The requirement of law is that the same should be disposed of expeditiously. That means that the time-gap in disposing of the representation must be justified by proper explanation in each case. From the reported decisions it is evident that apparent long delay like 43 days or even 52 days has been considered not fatal by the Supreme Court for the continued detention because such delay was properly explained by the respondents. On the other hand, as we have seen, even a delay of 16 days was held to be fatal by the Supreme Court where such delay has not been explained. In our present case, as we have noticed, there has been a delay of 18 days and 22 days in disposing of the two representations respectively and there has been absolutely no explanation from the respondents for such delay. As we have seen, in the affidavit-in-opposition, the respondents did not at all try to explain the time-gap nor has disclosed how the representations were dealt with in the concerned department till they were disposed of. Even at the time of hearing before us no records were produced to show how the representations were dealt with before they were disposed of. That being so, the unexplained delay of 18 days and 22 days, in view of the law settled by the Supreme Court, is fatal for the continued detention of the petitioner. In the circumstances, we allow this writ petition and direct that the detenu be released forthwith unless his detention is lawfully required in connection with any other proceedings. The writ petition stands disposed of accordingly.
Vidya Nand, J.
10. I agree.