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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
D.N. Mehta Dr. G.F. Couto, JJ.
Shashikala Krishnarao Rane.... Petitioner.
Versus
Union of India others.... Respondents.
Criminal Writ Petition No. 13 of 1986, decided on 3-10-1986.
Advocates appeared :
M.G. Karmali with S.G. Desai, for petitioner.
G.U. Bhobe, P.P., for respondents.
Held, When the detention order mentions that the detenu was detained with a view to preventing him from keeping and concealing smuggled goods, it conveys the meaning that the detenu had been involved only in a stray incident of keeping and concealing smuggled goods. Clause (iii) of sub-section (1) of Section (3) of the COFEPOSA Act provides for the detention of a person who is engaged or employed or is habituated in concealing or keeping smuggled goods. Therefore the meaning conveyed by the detention order is very different from the meaning conveyed by Clause (iii) of sub-section (1) of Section 3 of the Act. The clause would not embrace within its purview a person who indulged in a stray case of concealing or keeping smuggled goods but only a person who consistent by employed or occupied himself in concealing or keeping concealed goods. Therefore the order of detention in so far as it is not in consonance with the provisions of clause (iii) of subsection (1) of Section 3 of the Act is an order which is vitiated and must therefore be struck down.
In instant case, the word omitted viz. engaged in a word of crucial and significant import and this omission entirely alters the complexion of the intendment of the enactment. Therefore court is coupelled to take notice of such omission and inclined to set aside detention order not merely on the ground that the detention order omitted to mention a word here or a word there of the provisions of the Act.
An order of detention can not be treated as valid on the ground that the omission of the word engaged was through in advertance because such omission of significant word by the detaining authority tentamounts to nonapplication of mind.
Section 5-A can not be invoked in instant case because this section relates to grounds furnished to a detenue in support of detention. It does not apply to an order of detention.
Sections 3 (i) (ii), (iii), 5-A and 9 (1)-Detention order-Validity of. Court must, be guided by the language of the Order and not by the intention of the Detaining Authority. If a detention order could be made to prevent a person from keeping smuggled goods then every person having one or the other foreign-made goods without proof of its valid acquisition from an authorised source could be detained under clause (iii). The detention order was not in accordance with clause (iii) of sub-section (1) of Section 3 of the COFEPOSA Act.
The omission of a word which is of significant import and which conveys a certain intention of the draftsman cannot be brushed aside lightly. When the Order of detention mentions that the detenue was detained with a view to preventing him from keeping and concealing smuggled goods, it conveys the meaning that the detenue had been involved only in a stray incident of keeping and concealing smuggled goods. Clause (iii) of sub-section (1) of Section 3 of the COFEPOSA Act provides for the detention of a person who is engaged or employed or is habituated in concealing or keeping smuggled goods. Therefore, the meaning conveyed by the Order of detention is very different from the meaning conveyed by clause (iii) of sub-section (1) of Section 3 of the COFEPOSA Act. The order of detention insofar as it is not in consonance with the provisions of clause (iii) of sub-section (3) of the COFEPOSA Act is an order which is vitiated and must, therefore, be struck down.
It is necessary to point out that Section 5-A relates to the grounds furnished to a detenue in support of the order of detention. It does not apply to an order of detention. The grounds of detention are supplied to a detenue under sub-section (3) of Section 3 of the COFEPOSA Act.
It is, therefore, apparent that Section 5-A relates to the grounds furnished to a detenue in support of the order of detention and it has no relevance to the Order of detention.
An Order of detention requires the closest scrutiny of the material on which the decision is formed leaving no room for errors or at least avoidable errors. The Order of detention is not in consonance with clause (iii) of sub-section (1) of Section 3 of the COFEPOSA Act and is therefore, vitiated.
If the Detaining authority thought it expedient to furnish the translations even though the detenue knew English, then the detenue was entitled to take advantage of the translations and to point out that the translations which he relied upon did not convey a faithful meaning of the original grounds of the Declaration under Section 9 (1) of the Act and were such as to make it impossible for the detenue to communicate and on that ground also the Order ought to be struck down.
Section 9 (1)-Declaration under-Translation of-Not conveying faithful meaning of original grounds of declaration-Held Detention order liable to be set aside on ground that translation of declaration under Section 9 (1) not conveying faithful meaning of original.
If the Detaining Authority thought it expedient to furnish the translations even though the detenue knew English, then the detenue was entitled to take advantage of the translations and to point out that the translations which he relied upon did not convey a faithful meaning of the original grounds or the Declaration under Section 9 (1) of the Act and were such as to make it impossible for the detenue to communicate and on that ground also the Order ought to be struck down.
Whilst dealing with the translations supplied by the Detaining Authority one cannot use the same inflexible criteria as one would apply in the case of an Order of detention. In dealing with translations, one has to give some latitude to the ability of the translator for the reason that a translator is not supposed to apply his mind with the same amount of concentration and exactitude as the Detaining Authority. As long as a correct meaning is conveyed of the original by the translator, the translations must be held to be correct. It is only where a diametrically opposite meaning conveyed by the translations or no meaning is conveyed at all, that the Court would hold that the detenue was not informed of the correct grounds or such as would make it possible for him to communicate his objections thereto.
2. Respondent No. 3, the Administrator of Goa, Daman and Diu issued an order of detention against the detenu Krishnarao Appaji Rane dated 9th June, 1986 under section 3(1)(ii) and (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA Act"). The said order of detention mentioned that with a view to prevent the detenu from abetting the smuggling of goods also with view to preventing him from keeping and concealing smuggled goods it was necessary to detain the detenu in the Central Jail at Aguada on the grounds of detention served on him. This Order of detention was served on the detenu on 14th June, 1986. On the same day the detenu was also served with the grounds in support of the said Order of detention. Along with the grounds of detention was served a Marathi translation of the grounds of detention dated 9th June, 1986, as also a list of documents relied on by the Detaining Authority.
3. The Additional Secretary to the Government of India, Ministry of Finance, respondent No. 2 issued a declaration under section 9(1) of the COFEPOSA Act dated 11th July, 1986. This declaration was served on the detenu on 18th July, 1986 in Jail. Along with the declaration the detenu was furnished with a Marathi translation of the said declaration.
4. Mr. Karmali, learned Counsel appearing on behalf of the detenu has impugned the Order of detention dated 9th June, 1986, on three grounds. Firstly, that the Order of detention did not convey to the detenu the purpose of his detention under section 3(1)(iii) of the COFEPOSA Act in that, the order of detention stated that the detenu was detained with a view of preventing him from keeping and concealing smuggled goods. According to Mr. Karmali, the Order thus conveyed that the detenu had indulged in a stray act or acts of keeping or concealing smuggled goods; whereas under section 3(1)(iii) of the said Act a person could be detained provided he engaged himself in keeping or concealing smuggled goods. According to Mr. Karmali, the difference pointed out by him was of substantial import, in that the omission of the word "engaging" in the Order of detention, conveyed a different meaning to the one which was meant to be conveyed under the provisions of section 3(1)(iii) of the said Act. According to Mr. Karmali the omission was of such significance as would entirely distort the purpose for which the detenu was detained and did not accurately convey to him the purpose of his detention.
5. Mr. Karmali assailed the order of detention secondly, on the ground that the translation in Marathi of the grounds of detention and in particular, in paragraph 36 of the said grounds were not the proper translation and did not convey the correct meaning of the grounds furnished in English. Mr. Karmali laid particular stress on the following two sentences: firstly "I have come to the conclusion that you have committed the wrongful act of evading duty and you have done the illegal act of storing and concealing the duty evaded goods, worth several lakhs of rupees" and secondly, "In order to prevent you from abetting the wrongful act of evading duty and also to prevent you from storing, concealing duty evaded goods," and submitted that these have not been
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