1990 Supreme(SC) 28

SUPREME COURT OF INDIA
B.C. RAY AND K.N. SAIKIA, JJ.
Mr. Kubic Dariusz, Petitioner
Versus
Union of India and others, Respondents
Writ Petn. (Criminal) No. 359 of 1989, D/- 18-1-1990.
Advocates appeared :
Dr. Shankar Ghosh, Senior Advocate, Mr. Ashok Ganguly, Md. Nizamuddin and Ms. Mridula Ray, Advocates with him, for Petitioner; Mr. V. C. Mahajan, Senior Advocate, Mr. A. Subba Rao and Mr. P. Parmeshwaran, Advocates with him, for Respondents.

IMPORTANT POINT In a case of preventive detention of a foreign national when the detenu understood the English knowledge, had working knowledge of it and was feigning ignorance of it, there was no violation of Article 22(5) of the Constitution on the ground of non-communication of the grounds of detention in a language understood by him.

Headnote:(i) Constitution of India 1950 - Article 22(5)- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1)- Polish national carrying in his possession foreign gold weighing 70 tolas- Detention under Section 3(1)Challenged- Facts revealed that the detenu understood the English language, had working knowledge of it and was feigning ignorance of it- No violation of Article 22(5) on the ground of non-communication of the grounds of detention in a language understood by him.

       Held: That when the detention order and the grounds of detention were served the detenu received them and acknowledged the receipt thereof, as it appears from the records, putting his signature in English. He did not complain that the grounds of detention were not understood by him. On the other hand in the very grounds of detention it was stated that in course of interrogation he answered the questions in English including the questions as to how he happened to learn English. The gist of his answers in this regard was also given in the grounds of detention. We have perused the statements and find that those contained number of informations peculiar to the detenu himself which could not have been communicated by him to the interrogators unless he knew the English language. We also find that in several places he corrected the statements putting appropriate English words and signing the corrections. While the detention order was passed on 16-5-1989 his representation was admittedly dated only 13-6-89. In the meantime bail petitions were moved on his behalf before the Chief Judicial Magistrate and the High Court. There is nothing to show that he did not give instructions to his counsel. After all, the detenu is not required to write an essay or pass any language test. A working knowledge of English enabling him to understand the grounds would be enough for making a representation. He could very well send his representation in the language known by him. (Para 7)

       (ii) Constitution of India 1950 - Article 22(5)- COFEPOSA Act, 1974- Section 3(1)- Detention under- Detenus representation asking for copies of documents!\Just be held to have amounted to a representation- It was mandatory on the part of the appropriate Government to consider and act upon it at the earliest opportunity Inordinate and unexplained delay in disposing the representation would be had. (Para 11)

       (iii) Constitution of India 1950 - Article 22(5)- COFEPOSA Act, 1974- Section 3(1)- Detention under- Representation made-- The appropriate Government not considering the representation before and even after the Advisory Board considered the case of the detenu- The representation cannot be held to have been disposed of in accordance with law. (Vimalchands case: (1979) 4 S.C.C. 401 : relied on).

       Held: That under Article 22(5) independent of the reference to the Advisory Board, the detaining authority must consider the representation at the earliest and come to its own conclusion before confirming the detention order and consideration and rejection of the representation subsequent to report of the Advisory Board would not cure the defect. It was clearly held that it is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board had considered the representation and then made a report in favour of detention. Even if the Advisory Board had made a report upholding the detention the appropriate Government is not bound by such opinion and it may still, on considering the representation of the detenu and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu; as in that case there was nothing to show that the Government considered the representation before making the order confirming the detention. The Constitutional obligation under Article 22(5) was not complied with. (Para 11)

       (iv) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1)- Preventive detention of a foreign national who is not resident of this country International obligations in this regard. (Paras 12 & 13)