Kerala High Court
Philomina vs Government Of Kerala on 24 January, 2002
Equivalent citations: 2003CRILJ1959, 2002(83)ECC861
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT V.P. Mohan Kumar, J.
1. The wife of the detenue impugns the order passed by the designated authority under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA" Act, for short). It is alleged that on 24.12.2000 a person by name A. Mammu was traveling from Trivandrum to Doha by Qatar Airways and when his hand bag was searched, it was discovered that it contained 9 big thread rolls. On opening them it was discovered that foreign currencies were kept tied around the bobbins. The currencies were valued to the tune of Rs. 28,41,484.15. The passenger had a check in baggage, a cardboard carton tied with a yellow nylone rope. When this box was opened, a glass jar with pickle was recovered. Inside they discovered a plastic packet containing foreign currency valued at Rs. 45,43,939.05. Along with the same certain documents were also recovered which included a sheet of paper in which certain names were written including the name of one Shafeeq with a telephone number at Dubai. Mammu gave a statement under S. 108 of the Customs Act for the effect that the contents of the box as also the hand baggage were given to him by a person named Nassar. He further stated that on 23.12.2000 the abovesaid Nassar, himself, Mohammed Kutty, Mujeeb and another person by name Rafeeq stayed at Matha Tourist Home at Trivandrum, that he was proceeding abroad and that they accompanied him. Thereupon the officers of the Customs proceeded to Matha Tourist Home and took into custody all the persons referred to by him. Statements were recorded from all of them. The statement in short disclosed that Nassar was engaged at the instance of detenue to arrange a carrier to smuggle foreign currency from out of India. Nassar in pursuance thereto had thereupon contacted Mohammed Kutty who owned a shop at Nedumbasserry Air Port, and Mohammed Kutty in turn engaged Mammu on a consideration of Rs. 10,000/- for the services rendered and free air ticket in the event he carried the currency. These persons were thereupon arrested on 23.12.2000 from the Matha Tourist Home. They had traveled to Trivandrum in a Qualis car and that car was also seized. Summons were issued to thedetenue but he did not respond. He sought to be excused but he instead applied for an anticipatory bail. The bail application was made on 23.1.2001. Subsequently on 19.4.2001 Ext. P1 detention order was issued. The detenue was taken into custody on 26.4.2001.
2. The order is challenged before this Court by the detenue on the following grounds:
(1)The order of detention is distinctive in that in invokes both Section 3 (1) (ii) and 3 (1) (iv) of the COFEPOSA Act but the allegation as disclosed would not established both the grounds. As such it would render the entire order invalid.
(2) The order is confusing and there is casaualness in the order.
(3) The order of detention is distinct in that the order seeks to invoke four grounds for detention whereas the Government have mentioned only one act, which would satisfy one ground.
(4) The detention order in so far as it invokes Section 3(1)(iv) of theAct without specifically excluding one or other grounds mentioned in Section 3(1)(iii) renders the order illegal.
According to the detenue, these facts have misled the detenue in setting up a specific case. Such uncertainty vitiates the order depriving the rights guaranteed under Article 22(5) of the Constitution.
(5)There has not been a proper communication of the order in that some of the documents relied upon are only in the language unknown to the detenue.
(6) All the documents are in Malayalam, on which the entire detention order in based. But they have not been translated into English and sent to the Central Government along with his representation for consideration under Section 3(2) of the Act. Therefore there could not have been a proper consideration of the report and also a proper consideration of the representation at the hands of the Central Government as the empowered officer is not acquainted with Malayalam language.
(7) Extraneous facts have been taken into account while arriving at the subjective satisfaction of the detaining authority and this vitiates the order.
3. The above are the main aspects put forth by the counsel challenging the validity of the impugned detention order.
4. We find from the records that the representation submitted has been considered by the authorities concerned. The Advisory Board has examined the case of the detenue as well. It has recommended the continued detention. But we are of the view that the facts of the case may have to be considered in a different dimension. Section 3(2) of the COFEPOSA Act provides, inter alia, that when an order of detention is made by the State Government shall, within ten days, forward to the Central Government a report in respect of the order. Sub-section (3) states that for the purpose of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order on the grounds on which has been made shall be made as soon as may be after the detention.
5. The combined effect of these provisions is the providing of adequate safeguards against the unfettered exercise of powers depriving personal liberty lest a person is arbitrarily detained. In the present case, we should at this stage advert to a specific averment made by the petitioner with respect to the submission of the report under Section 3(2) of the Act. At paragraph 15 of the grounds of the Writ Petition the petitioner deposes as under:
"15. The petitioner says that some grave procedural violation has rendered the continued detention of the detenu unconstitutional. As stated earlier, the following documents are only in Malayalam and have not been translated into English. The petitioner submits that where the documents are in the language other than English particularly if the document is in Malayalam or in other regional language, it is necessary to have them translated into English and supply the same pari pasu the grounds and enclose it along with the report which must mandatorily be sent to the Central Government under Section 3(2) of the Act. The petitioner states this vital requirement has not been complied with in this case. In this case, the following documents which are no doubt heavily relied upon in the grounds of detention are all only in Malayalam and no translation into English has been given. The documents and statements are mahazar for seizure of the foreign currencies at the airport from Anodiyil Mammu and statement under Section 108 recorded from Anodiyil Mammu, S.S. Nassar, Mohammed Kutty, Mujeeb, Rafeek and S.S. Subair. All the retraction letters are written by the above four persons on several dates. The petitioner submits that when a report is sent under Section 3(2) of the Act, the Central Government is required in law to carefully go through the report as well as the order and grounds of detention and the materials on which the order and the grounds of detention are based. It is only on a perusal of these documents the Central Government could come to a decision whether or not the order of detention passed by the State Government required to be revoked. The petitioner submits in all probabilities the person who is empowered in this regard to take decision on a report received by the Central Government under Section 3 which also derives its power from Section 11 of the Act, does not know Malayalam to read. Thus what is an important duty and a statutory obligation that is to be performed within a time frame and without any avoidable delay could not have been performed meaningfully and properly. This is not all. The detenue had also sent a representation to the Central Government. The Central Government considered the representation and had rejected it. It is submitted the whole of the process of consideration of the representation had become farce. If all the above documents which are all very vital and relied upon have not been translated into English, then the representation sent by the detenue could not have been considered properly and fairly as all those documents are as good as not before the authority who has to form an opinion on the representation. The petitioner further says and submits in all probabilities the Secretary to Ministry of Finance, who has purported to reject the representation does not know Malayalam.Since all the above vital documents have not been translated into English, he would not have taken them into consideration while considering the representation of the detenue. Thus the Central Government has disposed of the representation without first fully appraising itself of the complete ramification involved in the case which could be understood and appreciated only when statements of all the persons are read in one conspectus. Thus the petitioner states the non-translation into English of all the statements which are relied upon in the grounds has disabled the Central Government from performing its duties and obligations under Section 3(2) and Article 22(5) of the Constitution".
6. It means that ther is a categoric averment by the petitioner alleging that there has not been an effective and meaningful consideration of the representation made by him invoking Section 3(2) of the Act. His case as put forth is that, the submission of the representation without the translation of the documents in Malayalam has handicapped an effective exercise of powder under Section 3(2) of the Act by the competent authority. It is seen that there is a further reiteration of the case at paragraph 18 of the grounds in the Writ Petition in the following manner:
"18. The detenue had sent a representation through prison authorities to respondents 1 and 2. The respondents are bound to satisfy this Hon'ble Court that the said representations were considered and disposed of in accordance with the constitutional requirements and without any delay. Exfacie there appears to be a violation in this regard. The petitioner further says and submits for the reasons set out eaelier since all the vital materials on which the grounds detention are substaintially based, being only in Malayalam with no translation in English have been provided and since in all probabilities the person who dealt with the representation would not be knowing Malayalam to read, the consideration of the representation without taking into account the vital material is not consideration in the eye of law. The disposal of the representation is therefore a farce".
Therefore an issue has arisen directly as to whether the documents relied on by the detaining authorities to support the detention order have been forwarded to the Central Government for the purpose of consideration of the representation made by the petitioner, in exercise of its power under Section 3 of the Act. It has to be remembered that Section 3(2) representation is submitted not as a mere formality. There should be effective and meaningful consideration of the representation. Such representation, should be accompanied with the documents which are relied on by the detaining authority to come to the subjective satisfication to detain the detenue and to support its order of detention. It is therefore elementary that all the relevant documents are forwarded to the authority exercising power under Section 3(2) of the Act to enable the authority to make an effective exercise of its power under Section 3(2) of the Act.
7. The allegation as seen from what is averred above is that the designated authority while considering representation under Section 3(2) was handicapped from understanding the contents of the documents relied on by the detaining authority for lack of translation of Malayalam documents. If the document be in Malayalam, there would be a Translator available in the concerned Department to understand the contents of the document relied on by the detenue in his defence. Unfortunately, there is no affidavit sworn to by any responsible officer of the Department which dealt with Section 3(2) representation denying the specific averments made in this behalf by the petition. The only denials are contained in paragraph 24 of the statement filed by the Senior Central Government Standing Counsel on behalf of the second respondent. The above paragraph 24 reads as follows:
"24. The detaining authority in this case is the Principal Secretary to the Government of Kerala. Section 3(2) of the COFEPOSA Act states that "when any order of detention is made by a State Government or an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the Order". Now there is it stated that English translation of all the documents in regional language must be set to Central Government and the detenue is no one to presume that the Central Government has disposed of the representation without first fully appraising itself of the complete ramification involved in the case. Clear application of the mind has been made by the authorities concerned in issuing the detention order:
"Smuggling" in relation to any goods, means any act or omission which will render such goods liable for confiscation under Section 111 or Section 113 of the Customs Act, 1962. In this case the foreign currencies were collected, concealed and transported by the detenue with an intention to illegally report them out of India, which renders the goods liable for confiscation at any point of time and hence the foreign currencies are smuggled goods. Section 3(1)(iv) is "dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods".
(underlining supplied for easy reference) We are not satisfied that this discloses any emphatic denial of the allegations made by the petitioner. A fact is alleged by the petitioner. The counsel at best can state what id disclosed from the files. As to whether, the officer who dealt with the Section 3(2) application had the benefit of the translation of the documents relied on by the detaining authority to understand the specific contention can be averred only by that officer or by some other officer in the Department who is familiar with the procedure. When the petitioner has joined an issue on the contention that the representation under Section 3(2) did not receive a proper consideration at the hands of the authority as the translated copies of documents relied on by the detaining authorities were not furnished to the authority considering the representation under Section 3(2) and thus the detenue suffered prejudice in that there is no effective consideration of the representation, it is the duty of the second respondent to satisfy the court that Section 3(2) was complied with not only in its form but in its spirit itself.
8. The need for the translation is very essential, as the authority exercising the power under Section 3(2) of the Act, can always consider whether the conclusion arrived at by the detaining authority on the basis of the documents produced is a conclusion, a reasonable man addressed in law and facts could arrive at. It is not to act as a second chamber of appeal, but to sift and ascertain whether the detaining authority has applied correct yardsticks and parameters while forming its opinion on the question whether the detenue be detained or not.
9. An argument was advanced that it is not necessary to forward the translation of all the documents for an effective exercise of power under Section 3(2) of the Act.
10. To appreciate the contention, we would examine pari material provisions of the other similar enactments. In the National Security Act, 1980 similar provisions exist. Section 3(5) of the said Act provides as under:
"3(5). When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government have a bearing on the necessity for the order".
(underlining supplied for easy reference) This section says that the State Government shall report the fact of detention to the Central Government together with the grounds on which the order has been made and such other particulars "as in the opinion of the State Government have a bearing on the necessity for the order." That is to say a discretion is given to the State Government to forward only such of the documents as are necessary for forming the opinion of the Central Government. It clearly indicates that there is no need to forward all the documents that is relied on by the State Government before passing the detention order, to the Central Government while forwarding a representation in the pari material provision of the Act. This discretionary power is conspicuously absent in the case of the COFEPOSA Act.
11. Similar is the provision in Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. There Section 3(4) reads thus:
"3(4) When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specifically empowered under Sub-section (1), the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the Order".
Therefore, when the earlier provision COFEPOSA Act, 1974 was enacted, the Legislature felt that no discretionary power need be conferred on the State Government and that the Central Government should be apprised of all the documents relied on by the authority when making the detention order. But when the subsequent enactments of 1980, namely, the National Security Act and the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 were enacted, the executive was given discretion to choose the documents to be forwarded to the Central Government. But this rule is varied with the enactment of Prevention of Illicit Traffic in Psychotoropic Substances Act, 1988 when the Legislature indicated that the State Government should not choose the documents which it feels is relevant to be forwarded. The requirement that was relaxed in the enactments of 1980 was done away with and again restored in 1988. This means the legislature would have noticed the defects by granting the executive discretion to choose the documents which it considers relevant to be forwarded. That lacuna was remedied in subsequent legislation. In such an event we cannot restore the defects by judicial interpretation and we have to hold that all the documents relied on by the detaining authority should be before the authority considering the Section 3(2) application so as to make an effective consideration of the application. If that be so, there should be a specific averment from the first respondent that all the documents forwarded have been considered by the Central Government meaningfully before it formed its opinion that continued detention of the detenue is called for.
12. In this view of the matter, we are of the view that the order of continued detention of the detenue made by the Central Government under Section 3(2) of the COFEPOSA Act was without applying its mind. We quash the same. We declare that the detenue referred to in the Original Petition be set at liberty forthwith, unless required to be detained under any other proceedings.