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SUPREME COURT OF INDIA
M.M. SUNDRESH, ARAVIND KUMAR, JJ.
Sarfaraz Alam - Appellant
Versus
Union of India & Ors. - Respondents
Criminal Appeal No. 45 of 2024 [Arising out of SLP (Crl.) No. 13193 of 2023]
Decided On : 04-01-2024
(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – Constitution of India – Article 22(5) – Preventive detention – There is subtle difference between background facts leading to detention order and grounds of detention – While background facts are not required in detail, grounds of detention which determine detention order ought to be found in grounds supplied to detenu – Knowledge of detenu is to subjective satisfaction of a detaining authority discernible from grounds supplied to him – It is only thereafter that detenu could be in a better position to take a decision as to whether he should challenge detention order in manner known to law – This includes his decision to make a representation to various authorities including detaining officer – Effective knowledge qua a detenu is of utmost importance – It becomes a cardinal duty on part of authority that serves grounds of detention to inform detenu of his right to make representation. (Paras 11 and 12)
(B) Constitution of India – Article 22(5) – Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – Preventive detention – Right to make representation – Such a right is an inalienable right under scheme of Constitution of India, available to detenu, corresponding to duty of serving authority – In a case where a detenu is not in a position to understand language, mere verbal explanation would not suffice – Similarly, where detenu consciously declines to receive grounds of detention, he has to be informed about his right to make representation – In a case where detenu receives ground of detention in language known to him which contains clear statement over his right to make a representation, there is no need for informing verbally once again – Such an exercise would be required when grounds of detention do not indicate so. (Paras 13 and 14)
(C) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – Constitution of India – Article 22(5) – Preventive detention – Challenge as to – Detenu is not entitled to any relief as he has not only suppressed facts as proved in his refusal to receive grounds of detention, apart from reading them in detail, but has also approached Court with unclean hands – It is a deliberate ploy adopted by detenu to secure favourable orders from Court – No error in procedure adopted by respondents as due compliance was made to translate all documents in Bengali apart from persuading detenu to receive them – In addition, Panchanama was signed by independent witnesses – Detenu also read grounds of detention and relevant documents – He was well aware of his right to make representation – Grounds of detention forming basis of satisfaction of detaining authority, were made known to detenu – He cannot seek all facts including access to telephonic conversation relied on, especially when he did not exercise his right to make representation – No ground to interfere with impugned order passed by High Court of Calcutta. (Paras 16, 17, 18 and 19)
Facts of the case:
Present appeal is at behest of brother-in-law of the detenu, who is challenging the validity of the detention order and aggrieved at the refusal of the High Court of Calcutta to set aside the order of detention passed by the respondents. Detenu was arrested, followed by a detention order passed by the detaining authority in exercise of the powers conferred under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Findings of Court:
Grounds of detention were attempted to be served on the detenu at the earliest point of time – i.e. on very next day after his detention.
Result : Appeal dismissed.
JUDGMENT :
M.M. Sundresh, J.
1. Leave granted.
2. Heard the learned senior counsel appearing for the appellant and the learned Additional Solicitor General for the respondents. We have perused the pleadings, documents and judgments. The present appeal is at the behest of the brother-in-law of the detenue, who is challenging the validity of the detention order and aggrieved at the refusal of the High Court of Calcutta to set aside the order of detention passed by the respondents.
FACTUAL BACKGROUND
3. On receiving information pertaining to a consignment containing gold and foreign currencies, escaping the watchful eyes of the customs department, four persons were apprehended. On eliciting further information from them, a search was conducted yielding huge quantity of gold, along with the recovery of foreign currencies of various denominations. As a consequence, the detenue was arrested, followed by a detention order passed by the detaining authority in exercise of the powers conferred under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA Act”). Prior to the said order he obtained an order of bail.
4. The detention order was passed against the detenue on 05.09.2023 after which he was subsequently detained on 19.09.2023 from his home, in the presence of his family members. Following the heels of the said order, the respondents made an endeavor to serve the grounds of detention along with the relevant documents on the very next day i.e., 20.09.2023 with due translation in the Bengali language. The detenue who was in a correctional home steadfastly refused to receive them despite persuasive attempts made by the Respondents. A panchnama was prepared, and before its due execution another abortive attempt was made to make him receive the grounds of detention, along with the relevant documents. The detenue reiterated his earlier stand, however, a facility was extended to him to read the documents in its entirety. The panchnama was signed not only by two independent witnesses but the detenue as well. Interestingly, the detenue after signing the panchnama in the English language has proceeded further to write “I have refused to receive any document”, leading to the obvious inference that his so called ignorance of English was only an afterthought.
5. Two more attempts were made by the respondents to serve the documents along with the grounds of detention. After refusing to receive the same on the second occasion i.e., on 03.10.2023 it was finally received by him on 10.10.2023. Interestingly, the detenue, through the appellant, filed the Writ Petition on 03.10.2023 inter alia contending that the respondents have not served the grounds of detention. The Division Bench of the High Court of Calcutta dismissed the Writ Petition inter alia holding that it was the detenue himself who had refused to receive the grounds of detention, a fact clearly indicated and proved through the panchnama.
SUBMISSIONS OF THE APPELLANT
6. Learned senior counsel appearing for the appellant submitted that it is incorrect to state that the detenue has refused to receive the grounds of detention. In any case the detenue has not been informed or communicated regarding his right to make a representation against the detention order. Both functions are mutually reinforcing as mandatory under Article 22(5) of the Constitution of India, 1950.
7. Not all the relevant materials have been served on the detenue, such as the telephonic conversation between the detenue and others. The grounds of detention could have been served on the family members of the detenue even on the first occasion. There ought to have been an affidavit on the refusal of the detenue pertaining to the grounds of detention, by the official concerned. So also, on the question of the contents having been read over to him and being read by him. An order of detention being an exception, if two views are possible, the one in favor
(1) Preventive detention – There is subtle difference between background facts leading to detention order and grounds of detention – Effective knowledge qua a detenu is of utmost importance.(2) In a ....
The main legal point established in the judgment is that the detenue, being illiterate, must have the grounds of detention explained to him in a language he understands, as mandated by Article 22(5) ....
Detention orders under preventive laws must communicate grounds in a language understood by the detainee; failure to do so violates constitutional rights under Article 22(5).
A detenu has a fundamental right under Article 22(5) that grounds on which a detention order has been made against him, be communicated to him as soon as may be and that he be afforded an opportunity....
Preventive detention procedures require the timely consideration of any representation made by the detained individual, along with the supply of relevant grounds for effective legal recourse.
The grounds for preventive detention must be communicated in a language the detenu understands to ensure the right to make effective representation, as mandated by Article 22(5) of the Constitution.
The failure to provide detention materials in the language known to the detenue violates constitutional rights, rendering the detention order illegal.
Preventive detention orders are invalidated if the grounds for detention are communicated in illegible or untranslated documents, infringing the detenu's constitutional rights to make effective repre....
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