Non-supply of a statement in a language known to the detenu, depriving him of the right to make an effective representation, violates Article 22(5) of the Constitution.

ORDER

1. The petitioner has been detained in exercise of the powers conferred by Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act, 1974, with a view to prevent him from e smuggling goods in future in terms of the order of detention dated 28-5-2003. The order of detention is under challenge in this petition under Article 32 of the Constitution.

2. The petitioner was apprehended at Chennai Airport on 20-4-2003 when he arrived from a flight from Dubai. For non-declaration of electronic goods over six lakhs, the petitioner was arrested under the provisions of the f Customs Act, 1962. A voluntary statement given by the petitioner was recorded on the same day. In the said statement the petitioner, inter alia, stated that he used to sell the goods at Chennai with the help of a person Khader Moideen. In the statement of Khader Moideen recorded on 28-4-2003, he denied his involvement. Another statement of Khader Moideen was recorded on 6-8-2003. The order of detention was confirmed by the 9 confirming authority on 14-8-2003.

3. In support of the challenge to the constitutional validity of the order of detention various grounds have been urged, one of it being the effect of non-supply of statement of Khader Moideen recorded on 6-8-2003, to the petitioner in the language known to him. It is not disputed that the earlier statement of Khader Moideen recorded on 28-4-2003 was neither supplied to h the petitioner nor was it placed by the sponsoring authority before the detaining authority but it is not necessary to examine its effect for the view we are laking hereinafter. After the order of detention, the statement of Khader Moideen that was recorded on 6-8-2003, it is not in dispute, is in Tamil language. Further, it is also not in dispute that the petitioner only knew Malayalam and somewhat English. The grounds of detention, inter alia, record that "that you know how to read, write Malayalam and somewhat English also". The statement dated 6-8-2003 along with certain other documents, was supplied by the sponsoring authority to the petitioner under a covering letter dated 7-8-2003, addressed by the Assistant Commissioner of Customs to the petitioner - a COFEPOSA detenu. The sponsoring authority is the Customs Department, Government of India, Ministry of Finance, Respondent I in this writ petition.4. The contention urged is that non-supply of statement of Khader Moideen dated 6-8-2003, to the petitioner, in the language known to him, has deprived the petitioner of his constitutional right to make effective representation and, therefore, detention and continued detention of the petitioner is illegal.

5. The supply of the aforesaid statement along with letter dated 7-8-2003, above-referred, is not in dispute. Respondent 2, in the counter-affidavit, has taken a stand that the documents supplied to the detenu along with the letter dated 7-8-2003 were supplied for the purpose of reference only and were not relevant. Unfortunately, Respondent I has not filed any affidavit. It further appears that neither the letter dated 7-8-2003 nor documents referred therein were sent by Respondent 1 to Respondent 2. The said letter does not bear any endorsement to that effect. Further, there is no indication in the said letter as to the purpose for which the documents were supplied to the detenu, after the order of detention. The documents were sent by the sponsoring authority direct to the detenu. The authority which is in a position to state as to the purpose of supplying the documents, is Respondent 1. It is not for Respondent 2 to state that the said documents were supplied for reference only. This Court has repeatedly laid down that the aspect of personal liberty of an individual cannot be treated lightly. Like many other detention cases, in this case too, the first respondent despite grant of a number of opportunities, has failed to file any counter-affidavit. We are thus at a loss to understand the purpos