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2000 Supreme(Cal) 465
High Court Of Calcutta
SATYABRATA SINGH, HRISHIKESH BANERJI
KAMALA SARKAR - Appellant
Versus
STATE OF BIHAR - Respondent
W. P. 10945 (W) Of 2000
Decided On : 09/08/2000
AKHIL CHANDRA BISVAS, BINOD GUPTA, BINOD KUMAR GUPTA, JOYMALYA BAGCHI, Kaushik Gupta, PRADIP GHOSH, SUDHIR KUMAR MEHTA, SUDHIR MEHTA
The grounds of detention must specify the specific activities prejudicial to the conservation or augmentation of foreign exchange or smuggling activities, the detention order must be served in a language that the detenu understands, and the detaining authority is required to provide the detenu with all the documents relied upon in the grounds of detention in a language that the detenu understands.
Headnote:
DETENTION - COFEPOSA - JURISDICTION - CAUSE OF ACTION - GROUNDS OF DETENTION - LANGUAGE OF DETENTION ORDER - DOCUMENTS IN LANGUAGE KNOWN TO DETENUE - INTERPRETATION OF STATUTES - ARTICLE 226 OF THE CONSTITUTION OF INDIA - SECTION 3 OF THE CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT, 1974.
Fact of the Case:
The petitioner challenged the detention order issued against her husband under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The petitioner contended that the grounds of detention were vague and did not specify the specific activities prejudicial to the conservation or augmentation of foreign exchange or smuggling activities. Additionally, the petitioner argued that the detention order was not served in a language that the detenu understood, and that certain documents relevant to the case were not provided in Bengali, the language known to the detenu.
Finding of the Court:
The court held that the detention order was not valid as it did not specify the specific activities prejudicial to the conservation or augmentation of foreign exchange or smuggling activities. The court also held that the detention order should have been served in a language that the detenu understood, and that the failure to provide certain documents in Bengali violated the detenu's right to make an effective representation against the detention order.
Issues: 1. Whether the grounds of detention were vague and did not specify the specific activities prejudicial to the conservation or augmentation of foreign exchange or smuggling activities? 2. Whether the detention order was served in a language that the detenu understood? 3. Whether the failure to provide certain documents in Bengali violated the detenu's right to make an effective representation against the detention order?
Ratio Decidendi: 1. The court interpreted Section 3 of COFEPOSA and held that the grounds of detention must specify the specific activities prejudicial to the conservation or augmentation of foreign exchange or smuggling activities. The court held that the grounds of detention in the present case were vague and did not meet this requirement. 2. The court interpreted Article 22(5) of the Constitution of India and held that the detention order must be served in a language that the detenu understands. The court held that the failure to serve the detention order in Bengali violated the detenu's rights. 3. The court interpreted Section 3(3) of COFEPOSA and held that the detaining authority is required to provide the detenu with all the documents relied upon in the grounds of detention in a language that the detenu understands. The court held that the failure to provide certain documents in Bengali violated the detenu's right to make an effective representation against the detention order.
Final Decision: The court allowed the petition and directed the release of the detenu.
( 1 ) IN this writ application the petitioner has prayed for relese of her husband who has been detained in terms of an order dated 22-3-2000 issued by the Deputy Secretary to the Government of Bihar which reads thus : no. 202/c. Whereas, the State Government is satisfied that with a view to preventing Shri Prasant Kumar Sarkar alias Prashanto Sarkar S/o Hemento Sarkar Pradhan Nagar near North Bengal, Nursing Home Siliguri present address Shankar Medical Hall Pradhan Nagar Siliguri (W. B.) Pin Code 734 403 from engaging in smuggling of Foreign Goods it is necessary to make an order that he be detained; now, therefore, in exercise of the powers conferred by Sub-sections (i), (ii) and (iii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No. 52 of 1974) State Government hereby direct that the said Shri Prasanto Kumar Sarkar be detained; shri Prasanto Kumar Sarkar shall be detained in Special Central Jail, Bhagalpur and shall be kept in Class III.
( 2 ) THE principal contentions of Mr. Ghosh, learned senior counsel, appearing on behalf of the petitioner in support of the application are two fold, although several grounds have been raised in this writ application.
( 3 ) THE learned counsel firstly submits that having regard to the order of detention, the ground and the stand taken by the concerned respondents in their affidavit-in-op-position, it would appear that separate and distinct stand having been raised therein the same must be held to be suffering from total non-application of mind on their part. According to the learned counsel, whereas Sub-sections (i), (ii) and (iii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act had been referred to in the order of detention, it would appear from the ground served on the detenu on 16-3-2000 that therein it has been stated : from the above it is evident that Prashanto Sarkar alias Prashanto Kumar Sarkar alias P. K. is the kingpin of smuggling activities in North Bengal and Bihar and is an habitual offender under the Act. As such the Govt. has decided to detain Sri Prashanto Sarkar alias Prashanto. Kumar Sarkar alias P. K. R/o. Pradhannagar, North Bengal Nursing Home Siliguri present Address Shankar Medical Hall Pradhan Nagar Siliguri (W. B.) P. C. 734403 under the COFEPOSA to prevent him from including in activities which are prejudicial to the public interest. Yet again it has been stated in the affida-vit-in-opposition of the concerned respondents as :-The case of petitioner, Detenu and another person namely, Abulias Ahmad, was considered and the Committee considered it necessary to detain the instant petitioner/detenu and the said Abulias Ahmad under Section 3 (1) of the COFEPOSA Act, 1974 with a view to prevent them from further indulging in smuggling activities which are prejudicial to the conservation and augmentation of foreign exchange. The Committee was in the knowledge of the fact that the date of incident on which detention was to be considered, was on 27-2-99.
( 4 ) IN support of the said contention, reliance has been placed on Anup Kumar Ghosh v. Union of India reported in (1998) 59 ECC 479 (Cal) and in Re : Manick Saha reported in 1996 Cal Cri LR 136.
( 5 ) MR. Ghosh, learned counsel, next pointed out that before the appropriate authority the petitioner had demanded Bengali version of the following documents : i. Documents being serial Nos. 8,9, 10, 23 and 32 of documents in English. II. Statement of Mehrunissa dated 5-3-99 which is at page 175 of English documents. III. Documents at pages No. 202, 203, 204, 205, 206, 207, 208, 209, 210 and 211 of English documents", but this same had not been supplied.
( 6 ) DESPITE the fact that the petitioner only knows Bengali, the said documents had not been handed over to the petitioner. The aforementioned statements have been made in paragraph 10 (a) and 10 (b) of the writ application. In the affidavit-
