Ansar Ali vs The State Of Tamil Nadu on 16 April, 2002

[Cites 9, Cited by 4]

Madras High Court

Ansar Ali vs The State Of Tamil Nadu on 16 April, 2002

The present matter arises on a reference to this Bench on account of the disagreement on the part of the Division Bench consisting of S.Jagadeesan and P. Thangavel, JJ., (hereinafter referred to as the "referring-Bench"), before whom H.C.P. No.798 of 2001 was pending, with the Division Bench judgment in H.C.P. No.1467 of 2000 (In re S. Ramalingam), decided on 19-2-2001, by K. Narayana Kurup and P. Thangavel, JJ.

2. The referring-Bench found it not possible to agree with the aforementioned Division Bench judgement in Ramalingam case, cited supra, wherein the failure on the part of the detaining authority to supply the Tamil translation of the Customs Clearance Card, in spite of the representation preferred by the detenu requesting to supply the translation of the said card, was held fatal to the detention. Before the referring-Bench, a contention was raised that the petitioner was not furnished with the Tamil translation of the Air-ticket and the Baggage Check Clearance Card. The contention raised was that though the Tamil translation of the documents at page Nos.49, 50, 56, 57 and 61 of the booklet were sought for by the detenu, on the ground that he did not know any other language than Tamil, and since all the documents were in English, the Tamil translation thereof should have been made available and the failure on the part of the detaining authority to make such Tamil translation of the documents available was fatal to the further detention because it bristled against his right under Art.22(5) of the Constitution of India. In support of his contention, the learned counsel for the petitioner has relied upon the aforementioned judgment in S. Ramalingam case, cited supra. The referringBench finding itself unable to agree with that judgment and hence to follow the same has caused this reference to be made.

3. Though the referring-Bench has not framed the question, it can be framed in the following manner:

"Whether the failure on the part of the detaining authority to supply the Tamil translation of the documents like entries in the passport, boarding card, baggage check clearance card, air-ticket, etc., though asked for by the detenu, would vitiate the further detention and whether it can be held that such failure on the part of the detaining authority would amount to the breach of Art.22(5) of the Constitution of India which gives the detenu a right to make an effective representation?"

4. The learned counsel appearing on behalf of the petitionerdetenu earnestly argued that in the representation made on behalf of the petitioner-detenu by his wife, Smt. Saibu Jameen, dated nil, it is specifically stated that the detenu knew only Tamil and did not know any other language. It was, therefore, prayed that the Tamil translation should be given of the documents which were supplied to the detenu at page Nos.49, 55, 56, 57 and 61 of the paper-book. The learned counsel then invited our attention to the grounds raised in the writ petition that the detenu knew only Tamil and no other language and that though he had made a representation, such Tamil translation of the documents at pages 49, 55, 56, 57 and 61 of the booklet supplied to the detenu was not supplied. The learned counsel, therefore, says that this has seriously prejudiced the detenu as in the absence of the Tamil translation of those documents, he was not able to make an effective representation.

5. As against this, the learned Senior Counsel/Public Prosecutor, Mr. I. Subramanian, contended that the said documents at page Nos.49, 55, 56, 57 and 61 of the booklet pertained to the air-ticket, entries in the passport, baggage check clearance card, boarding card, etc. and these documents could not be said to be "relied upon" documents at all. The learned Public Prosecutor seriously argues that merely because those documents were supplied they were not and could not be said to be the "relied upon" documents and were merely "referred documents". The learned Public Prosecutor further suggests that those documents were the documents of the petitioner-detenu alone as the petitioner was travelling on the basis of those documents and, therefore, there was no question of any illegality on account of the failure to supply the Tamil translation of the same.

6. Before going to the controversy, it will be better to see as to what are the documents, the translation of which was sought by the detenu:

Page 49 is the back-side of VISA card wherein the conditions of visit VISA for Sri Lanka and the number of VISA, etc. are written in English;

Page 55 is the endorsement made on the passport suggesting the visits to the foreign countries on various dates. The lower part of this document also suggests the entries in the passport wherein the details of the journey appear. The other part of the lower part suggests the stamps and the endorsements made on the passport made by the Republic of Singapore.

Page 57 is the printed conditions on the back-side of the passport regarding the registration and cautions.

Page 59 is the boarding pass in which the name of the passenger is written.

Page 61 is the air-ticket and more particularly the upper part thereof in which the travelling details as well as the name of the passenger appear.

It will be relevant to know that all these documents appear to be the "travel documents" and the matter on them is printed excepting where the names of the concerned passenger is type-written. Endorsements appearing on the passport, however, appear to be in English which are also like the type-written letters.

7. The learned counsel to begin with invited our attention to the grounds stated in the grounds of detention order and firstly invited our attention to paragraph 4, which is as under:

"While arriving at the subjective satisfaction to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into consideration all the facts and materials referred to and relied upon in these grounds mentioned above and also the statements, mahazars, etc. accompanying thereto."

The learned counsel then invites our attention to the counter filed by the first respondent and more particularly paragraph 5 thereof. From this, the learned counel contends that all the documents which have been supplied by way of paper-book were, therefore, "relied upon" documents and therefore, it was incumbent upon the detaining authority to supply the translations of these "relied upon" documents particularly when the translations were particularly sought for by the detenu.

8. The learned Public Prosecutor, however, pointed out that merely because the documents were supplied to the detenu would not mean that all the documents were "relied upon" documents. We were taken through the detention order specifically wherein there is a reference to the fact that the detenu was the holder of an Indian passport-holder, bearing No.N 959759, dated 11-3-1993. The learned Public Prosecutor points out that merely by this the whole passport does not become a "relied upon" document as there is only a reference to the said passport to suggest that the petitioner had one such passport. The learned Public Prosecutor also pointed out that the translation of the first page and last page of the passport, which bears the name of the petitioner, have already been supplied so as to pinpoint the petitioner owned a passport of a particular number. However, according to the learned Public Prosecutor, there would be no question of treating the document at pages 55 and 57 to be the "relied upon" documents as they were the mere entries and the contents of the document at page 57 generally appear on all the passports. Therefore, it could not be a " relied upon" document. As regards the boarding card and the airticket, the learned Public Prosecutor has pointed out that they were referred to as the "travel documents" and they could not be said to be the "relied upon" documents but "referred" documents. The learned Public Prosecutor further submitted that they were the documents of the detenu himself on the basis of which he was himself travelling and, therefore, could not be said that the detenu required the translation of the printed or typed entries in those documents so as to enable him to make an effective representation. It was suggested by the learned Public Prosecutor that in so far as the boarding card was concerned, the translation thereof was already supplied at page 60 of the paper-book. The Public Prosecutor further pointed out that since the translation of the boarding pass was already supplied to the detenu, there was no question of further supplying of the airlines-ticket without which the boarding pass could never have been obtained by the detenu. The learned Public Prosecutor, however, points out that in fact, the airlines-ticket would lose all its significance once the boarding pass was taken by the passenger, in this case the detenu, because that alone would give him an entry into the aircraft. The learned counsel, therefore, argued that the airlines-ticket would merely be a " referred document".

9. The learned counsel for the petitioner, however, insists that even if the documents sought for are the typed documents, they do not become the "referred documents" and in strict terms of the language used in paragraph 4 of the detention order, it would have to be held that those documents were "relied upon documents". The learned counsel for the petitioner also invited our attention to the counter filed wherein in paragraph 7, the respondents have answered the contentions raised in paragraph 6 of the petition. Paragraph 7 reads as follows:

"As far as the averments made in paragraph 6 of the affidavit are concerned, I submit that the pages No.49, 55, 56, 57 and 61 of the set of documents are standard printed and public documents and hence the same need not be translated into Tamil. As such the allegations of the petitioner that the non-supply of Tamil translation of the above documents prevented him to make effective representation under Art.22(5 ) of the Constitution of India is not correct."

On this basis, the learned counsel says that now the respondents cannot raise a contention that these documents are not "relied upon" documents because it would be only for the detaining authority to point out which documents were the "relied upon" documents and which documents were not so. The learned counsel goes on to argue that once a stand was taken that these documents were standard, printed and public documents and, therefore, they need not be translated, the respondents cannot change their stand and further argue that these documents were not "relied upon" documents. Very strangely, the learned counsel relies on the celebrated decision of the Supreme Court reported in AIR 1952 SC 16, (Commissioner of Police, Bombay v. Gordhandas Bhanji). The learned counsel invites our attention to the contents in paragraph 9 wherein the Supreme court had held that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making 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 actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

10. We are unable to understand the argument and we are also unable to see as to how the aforementioned decision is applicable to the present scenario. In this case, the authority is not in any way trying to explain any order much less the detention order. It has clearly taken a stand that failure to supply the translation of the standard printed and public documents does not deprive the detenu of an opportunity to make an effective representation. It is clear that the authority has actually pleaded that such documents are not the "relied upon" documents.

11. In the first place, the petitioner himself does not say that the said documents were "relied upon" documents. If paragraph 6 of the affidavit is closely read, there appears nothing in this paragraph to suggest that the documents at page Nos.49, 55, 56, 57 and 61 of the paperbook were "relied upon" documents. Therefore, firstly, there was no question on the part of the detaining authority to deny that fact or assert specifically that they were not "relied upon" documents; secondly, it would be for the petitioner to suggest and to show that because of the failure on the part of the detaining authority to supply the Tamil translations of these documents, his right under Art.22(5) of the Constitution has been hampered and for that purpose the petitioner would have to specifically prove that these documents were "relied upon" documents by the detaining authority. We are afraid even a very close scrutiny of the detention order could not suggest as to how the printed entries or the printed stamps could be said to be the "relied upon"

documents. They are clearly not so. Again, we must point out that merely because the documents were supplied along with the detention order all of the same do not become the "relied upon" documents. We will not read the language of paragraph 4 in the detention order in the manner as suggested by the learned counsel for the petitioner because in plain English all that has been stated is that the State Government had taken into consideration the facts and materials "referred to" and "relied upon" in these documents. The emphasised words appearing in paragraph 4 are clear enough to suggest that some of the materials were merely "referred to" by the detaining authority.

12. The learned counsel for the petitioner then tried to urge, relying on the celebrated decision reported in AIR 1962 SC 911 ( Harikisan v. State of Maharashtra), that the non-supply of translated copies of the documents is fatal to the detention. We are afraid as to how the case applies to the present scenario because in the aforementioned decision all that has been stated is that the detenu must be in a position to understand the grounds of detention so that he is able to make an effective representation against the same and for that purpose if he did not know the language of English to understand the grounds, the said grounds must be explained by way of translations. There can be no difficulty with the observations but the law has then treaded a further long course.

13. It will have to be understood that in the decision reported in AIR 1975 SC 550 (Khudiram Das v. State of West Bengal) it was held that the grounds to be communicated to the detenu would mean all the basic facts and the materials which have been taken into account by the detaining authority in making the order of detention and on which the detention order is based.

14. The Apex Court went further in the decision reported in AIR 19 80 SC 1983 (Smt. Icchu Devi Choraria v. Union of India and others) and held that for communicating the grounds effectively to the detenu, the detaining authority was bound to supply the copies of the documents, statements and other materials relied upon in the grounds of detention to the detenu as early as possible and if there was unreasonable delay on the part of the detaining authority in supplying the copies of the documents, statements and other materials relied upon in the grounds of detention then the further detention would be rendered illegal.

15. The Apex Court then in the decision reported in AIR 1981 SC 43 1 (Smt. Shalini Soni v. Union of India) went on to hold that when a representation is made in any form, the representation has to be considered. The Apex Court further reiterated the law that the copies of the documents, to which reference is made in the ground, must be supplied to the detenu as the part of the grounds and the failure to communicate the factual materials as the part of the grounds would amount to non-communication of grounds on which the order of detention and thus would infringe Art.22(5) of the Constitution of India.

16. Relying on all the aforementioned decisions, the learned counsel suggests that in not supplying the Tamil translated copies of the documents at pages 49, 55, 56, 57 and 61 of the paperbook, the right of the petitioner-detenu to make an effective representation has been affected, rendering his further detention illegal.

17. We have already pointed out that in fact none of these documents, the translations of which have not been supplied to the detenu, could be called "relied upon" documents. They were the documents, which were merely supplied to the detenu in support of the grounds of detention. Though there appear to be stray references to the documents like passport, etc. it is an admitted position that the first and last pages of the passport suggesting the identity of the holder of the passport has already been informed to the detenu by way of translation. It would be a travesty to seek the translation of the endorsements made on the VISA and the passport. Similarly it would also be a travesty to seek the translation of the conditions of the passport or the cautions printed on it. Therefore, it cannot be said under any circumstance that these were the "relied upon"

documents. They could at the most be suggested as "referred to" documents.

18. The law is now settled finally by the decision of the Apex Court reported in AIR 1999 SC 618 (Powanammal v. State of Tamil Nadu), where, by majority, the Apex Court has held as follows:

"There is a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to the continued detention, the detenue need not show that any prejudice is caused to her. This is because non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenue's complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document, would equally apply to furnishing translated copy of the document in the language known to and understood by the detenue, should the document be in a different languagel." (emphasis is ours) The observations and more particularly the emphasised portion, which are applicable to the present case would, in our opinion, clinch the issue. The standard, printed and public documents like air-ticket, boarding card, conditions printed on the passp ort, conditions of VISA, etc. which are of common nature are not required to be translated and in this case particularly they are not required to be translated at all. What is required to be translated is something in the nature of an entry if the information in that entry is "relied upon" in the grounds of detention. For example, in this case it was essential to give the translation of the boarding card because the detaining authority had relied on the fact that on the basis of the boarding card the detenu was travelling. Such translation was also rightly given, in our opinion, of the first and last pages of the passport because that showed the fact that the petitioner-detenu was the holder of an Indian-passport and it was on that basis that he got the VISA but, we completely fail to follow as to how and in what manner would the standard printed instructions or the cautions or the general conditions on the passport or the VISA card are in any manner relevant for the present purpose much less for the purpose of making an effective representation. We are aware that it is not for this Court to decide as to for what purpose the detenu requires the documents. However, Powanammal case, cited supra, once for all settles the issue that it is only the "relied upon" documents or the parts thereof which would be required to be translated and supplied to the detenu if the detenu does not know the language in which the entries in the said documents appear. We, therefore, hold that in this case the aforementioned documents and more particularly the standard printed part of the public documents cannot be said to be the "relied upon"

documents and the petitioner has not been able to show or prove satisfactorily that they were the "relied upon" documents. Once they are not the "relied upon" documents and are only "referred documents" then the petitioner-detenu would have to show "prejudice". We fail to see as to what prejudice can be caused to the detenu by not providing the translations of the standard printed public documents which contents are common in those documents. In our opinion, there can be no prejudice and indeed the learned counsel was also not able to show any such prejudice on account of the failure of the detaining authority to supply the translations of the pages 49, 50, 56, 57 and 61 of the paper-book demanded by the detenu and more particularly the English portion therein.

19. In that view, we are of the clear opinion that the petition has no merits and deserves to be dismissed. We accordingly dismiss the same as the learned counsel for the petitioner before us has categorically made a statement that it is only on the basis of this ground alone that he was challenging the detention and there was no other ground raised in the petition or before us also during the arguments.

20. We, accordingly, answer the question framed by us in paragraph 3 of this judgment in negative in favour of the State and against the petitioner-detenu.

Index:Yes/No Website:Yes/No (V.S.S., J.) (M.S., J.) (A.P., J.) Jai 16th April, 2002 Sd/-

Assistant Registrar /TRUE COPY/ Sub Assistant Registrar (C.O./ Stat.) To:

1. The Secretary to Government Public (SC) Department Fort St. George Chennai

2. Secretary to Government Ministry of Finance Department of Revenue New Delhi

3. The Public Prosecutor, Chennai

4. The Director General of Police Chennai

5. The Superintendent of Central Prison Chennai V.S. SIRPURKAR, J.

MALAI SUBRAMANIAN, J.

A. PACKIARAJ, J.

ORDER in H.C.P. No.798 of 2001 16-04-2002

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