Brief Facts
- 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 (“COFEPOSA Act”). Prior to the said order he obtained an order of bail.
- 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.
- The Respondents made an endeavour to serve to the Detenue, the grounds of detention along with the duly translated relevant documents. However, the detenue refused to receive the same.
- Thereafter, a panchnama was prepared which was signed by the detenue and two independent witnesses.
- The detenue even proceeded to write in English language that “I have refused to receive any document”.
- After certain attempts of the Respondents, the Detenue received the grounds of detention along with the documents on 10.10.2023. However, the Detenue filed a Writ Petition on 03.10.2023, inter alia contending that the respondents have not served the grounds of detention.
- The division bench of Calcutta High Court dismissed the Writ Petition, inter alia holding that the Detenue himself refused to receive the grounds of detention.
- Aggrieved by the refusal of the High Court to set aside the order of detention passed by the Respondents, the Detenue filed the present appeal before the Supreme Court challenging the validity of the detention order.
Issues
- Whether the detention grounds were validly issued to the Respondents in accordance with the mandatory provisions under Article 22(5) of the Constitution of India, 1950?
- Whether it is mandatory to inform the Detenue as to his right to make representation against the detention order?
Held
- The Supreme Court dismissed the appeal filed by the Appellant Detenue, holding that procedural requirements under Article 22(5) of the Constitution were fulfilled by the detaining authority. The findings of the Court are as under:
- The Court reasoned that the detenue’s refusal to accept documents and participate in procedural steps demonstrated a deliberate attempt to evade legal procedures. The detaining authority provided grounds for detention in a language the detenue understood, attempted to serve these grounds multiple times, and ensured the presence of independent witnesses to confirm compliance.
- Having reiterated the said principle of law, the question for consideration is ‘to what extent a communication can be made both orally and in writing’. In a case where a detenue is not in a position to understand the language, a mere verbal explanation would not suffice. Similarly, where a detenue consciously declines to receive the grounds of detention, he has to be informed about his right to make a representation. In such a scenario, the question as to whether the grounds of detention contained a statement that a detenue has got a right to make a representation to named authorities or not, pales into insignificance. This is for the reason that a detenue despite refusing to receive the grounds of detention might still change his mind and receive them if duly informed of his right to challenge a detention order by way of a representation. We may clarify, in a case where a detenue receives the ground of detention in the language known to him which contains a clear statement over his right to make a representation, there is no need for informing verbally once again. Such an exercise, however, would be required when the grounds of detention do not indicate so.
- On facts, we find that the detenue is not entitled to any relief as he has not only suppressed the facts as proved in his refusal to receive the grounds of detention, apart from reading them in detail, but has also approached the Court with unclean hands. It seems to us that it is a deliberate ploy adopted by the detenue to secure favourable orders from the Court. A perusal of the panchnama clearly indicates the adequacy of his knowledge in English, as he has not only signed the document in English but also made his objection with respect to receipt of the grounds of detention. We find no error in the procedure adopted by the respondents as due compliance was made to translate all documents in Bengali apart from persuading the detenue to receive them. In addition, the panchnama was signed by the independent witnesses. The detenue also read the grounds of detention and the relevant documents. Therefore, he was well aware of his right to make a representation.
- As discussed, the grounds of detention forming the basis of the satisfaction of the detaining authority, were made known to the detenue. He cannot seek all the facts, including access to the telephonic conversation relied on, especially when he did not exercise his right to make the representation. It is pertinent to mention that we are only dealing with the validity of the detention order and not a regular criminal case against the accused.
- The other grounds raised also do not merit any acceptance, in the light of our earlier discussion. We also find that the grounds of detention were attempted to be served on the detenue at the earliest point of time – i.e. on the very next day after his detention.
Relevant Para No.
- 12, 13, 16, 17 and 18