Madras High Court
Rabiyathil Pathavia vs The State Government Of T.N. Rep By Its ... on 20 June, 2001
Equivalent citations: 2002(80)ECC91
ORDER K. Narayana Kurup, J.
1. The order of preventive detention was clamped on the husband of the petitioner under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) by the first respondent in G.O. No. SR. I/981-4/2000, dated 17.8.2000 for misdeclaration of Imported goods, which according to the detenu is Rs.4,90,000, whereas according to ihe Revenue Department it is Rs.17,41, 800, is under challenge in this habeas corpus petition on the ground that after passing of the detention order, additional, documents were served on the detenu on 6.9.2000 and 13.9.2000 without any covering letter and without any translation of these document's, thereby, vitiating the order of detention.
2. It is not in dispute that the following documents were supplied to the detenu without Tamil translation and without mentioning the purpose for which it is supplied:
(i) Petition filed by the DRI Department under Section 110(i)(a) or 110(1)(c) read with Section 451 Cr.P.C. before the Judicial Magistrate Court, Alandur, Chennai
(ii) The order passed in CMP.No.2930 of 2000 by the learned Judicial Magistrate, Alandur on 7.9. 2000 and
(iii) Mahazar daled 6.9.2000.
The first document was received by the detenu on 6.9.2000 and the second and third documents were received by the detenu on 13.9.2000,
3. The contention of the detenu is that the documents are in English, and the documents are illegible, fudged and it cannot be read by anyone and therefore, they vitiate the order of detention. We are not impressed by the arguments of the detenu that the documents are illegible and fudged. On a perusal of the documents, we find that the documents in question are legible and not fudged.
4. However, the detenu has a strong case on the other point, namely, the order of detention is not in Tamil, and is not accompanied by any covering letter explaining the purpose for which the documents were served on the detenu. Evidently, the documents in question were served on the detenu without the detenu being told about the purpose for which they are served. Failure on the part of the authorities to inform the purpose for which the documents were supplied to the detenu without any covering letter, will certainly vitiate the order of detention. Whenever a document is served on a detenu, the detenu should be in a position to know the purpose for which it is served on him, especially, when such documents are served after initial order of detention was passed against him. So long as the purpose for which the documents are served on the detenu is not disclosed, it will certainly create confusion in the mind of the detenu in the matter of submitting an effective representation, thereby, causing infraction of the constitutional right of the detenu as envisaged under Article 22(5) of the Constitution. That apart, the detenu has a case that he knows only Tamil and does not know English. Admittedly, the Tamil translation of the additional documents is also not served on the detenu. The view we are taking is fortified by no less authority than the decision, of the Supreme Court reported in State of Tamil Nadu v. Senthil Kumar, (vide paragraph 13).
5. Of course, the respondents would justify the supply of additional documents without covering letter in the following lines, which is evident from paragraph 26 of the counter affidavit filed on behalf of the first respondent, which reads as follows :-
"26. As far as the averments made in paragraph 4(xvi) of the affidavit is concerned, I submit that it is once again a repetition. I have already stated that the petition filed by the Directorate of Revenue Intelligence Department before the Court is an independent proceeding under the Customs Act, 1962 (Central Act 52 of for the disposal of the goods seized. This petition has been filed by the department under Section 451 Criminal Procedure Code before the concerned Judicial Magistrate Court, Alandur, Chennai. Notice has been ordered by the Court to the detenu and the detenu has also received the copy of the petition. The learned Trial Magistrate after hearing the department and the detenu with regard to the disposal of the goods read with Section 451 Criminal Procedure Code has passed an order in Criminal M.P.No.2930/2000. The detenu was duly heard by the Trial Court. This proceeding has nothing to do with the preventive detention matters. It is a proceeding between the Customs Department and the detenu with regard to the disposal of the seized goods read with Section 451 Criminal Procedure Code, which is an independent action which has nothing to do with the preventive detention matters. Since the Court directed the Customs Department to serve the notice on the detenu, the notice was served on him. The entire proceedings are entirely different from the preventive detention matters."
6. Having bestowed our anxious consideration to the aforesaid contention, we are afraid, we cannot give our stamp of approval to the same. Had it been the case of the respondents that the additional documents had no connection at all with the preventive detention, nothing prevented them from stating so in a covering letter attached to the additional documents. In this connection, we may refer to the often quoted passage reported in Mohinder Singh v. Chief Election Commissions, , which reads as follows:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be Judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought put. We may here draw attention to the observation of Bose, J. in Goridhandas Bhani, .
Public orders publicity made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by Public authorities are meant to have Public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
7. In the light of the aforesaid discussion, we allow this habeas carpus petition, quash the order of detention passed, against the detenu and direct that he be set at liberty forthwith it not wanted in connection with any other case.