Full Judgment Text
2024 INSC 18
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
[Arising out of SLP (Crl.) No. 13193 of 2023]
SARFARAZ ALAM … APPELLANT
VERSUS
UNION OF INDIA & ORS. … RESPONDENTS
J U D G M E N T
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
Signature Not Verified
Calcutta to set aside the order of detention passed by the respondents.
Digitally signed by
POOJA SHARMA
Date: 2024.01.04
17:11:59 IST
Reason:
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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
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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
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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 of the detenue should find favor
with the Court. To reinforce the aforesaid submissions, learned senior
counsel have placed reliance on the following decisions of this Court,
State Legal Aid Committee, J&K v. State of J&K, (2005) 9 SCC
667
Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51
Thahira Haris v. Govt. of Karnataka , (2009) 11 SCC 438
SUBMISSIONS OF THE RESPONDENTS
8. Repelling the contentions of the appellant, the learned Additional
Solicitor General appearing for the respondents submitted that due
procedure has been followed and ample opportunities were provided. The
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translated version of the grounds of detention along with the relevant
documents were attempted to be served upon the detenue on the very next
day after his detention in due compliance of Section 3 of the COFEPOSA
Act. A panchnama was drawn in the presence of two independent witnesses
to cover the incident of detenu’s refusal in accepting the ground of
detention as per the extant principles of law. The panchnama bears the
signature of the detenue with a remark “ I have refused to receive any
document ”, this sufficiently indicates that twin test enshrined in Article
22(5) of the Constitution of India was duly complied with. Even in the
grounds of detention there are adequate averments clearly indicating
detenue’s right to make representation to the named authorities. The
contention raised is only an afterthought and therefore the present appeal
deserves to be dismissed.
9. Despite refusal of the detenue on the first occasion in receiving the
grounds of detention, a second attempt was made on 03.10.2023, and
ultimately on 10.10.2023, the detenue received the ground of detention
with all the relevant documents. These chronological events amply suggest
the conduct of the detenue in evading to receive the grounds of detention.
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DISCUSSION
10. Article 22(5) of the Constitution of India can broadly be divided into
two parts. Of these two parts there lies an underlying duty and obligation
on the part of the authorities in not only serving the grounds of detention as
soon as the case may be, after due service of the detention order and
communication of the grounds of detention along with the documents
relied upon in the language which he understands, but also for the purpose
of affording him the earliest opportunity of making a representation
questioning the detention order.
11. Therefore, the first part involves the bounden duty of the authorities in
serving the grounds of detention containing such grounds which weighed in
the mind of the detaining authority in passing the detention order. In doing
so, adequate care has to be taken in communicating the grounds of
detention and serving the relevant documents in the language
understandable to the detenue. The second part is with respect to his right
of making the representation. For exercising such a right, a detenue has to
necessarily have adequate knowledge of the very basis of detention order.
There is a subtle difference between the background facts leading to
detention order and the grounds of detention. While the background facts
are not required in detail, the grounds of detention which determine the
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detention order ought to be found in the grounds supplied to the detenue. In
other words, the knowledge of the detenue is to the subjective satisfaction
of a detaining authority discernible from the grounds supplied to him. It is
only thereafter that a detenue could be in a better position to take a decision
as to whether he should challenge the detention order in the manner known
to law. This includes his decision to make a representation to various
authorities including the detaining officer. Therefore, an effective
knowledge qua a detenue is of utmost importance.
12. On the second aspect, a detenue has to be informed that he has a right
to make a representation. Such a communication of his right can either be
oral or in writing. This right assumes importance as a detenue in a given
case may well be a literate, semi-literate or illiterate person. Therefore, it
becomes a cardinal duty on the part of the authority that serves the grounds
of detention to inform a detenue of his right to make a representation.
13. While the aforesaid two rights and duties form two separate parts of
Article 22(5) of the Constitution of India, they do overlap despite being
mutually reinforcing. Though they travel on different channels, their waters
merge at the destination. This is for the due compliance of Article 22(5).
The entire objective is to extend knowledge to the detenue leading to a
representation on his decision to question the detention order. Such a right
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is an inalienable right under scheme of the Constitution of India, available
to the detenue, corresponding to the duty of the serving authority.
14. 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.
15. We would like to reinforce our position on the aforesaid exposition of
law by placing reliance on the following decisions of this Court:
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Lallubhai Jogibhai Patel v. Union of India , (1981) 2 SCC 427
“20 …. “Communicate” is a strong word. It means that sufficient
knowledge of the basic facts constituting the “grounds” should be
imparted effectively and fully to the detenu in writing in a
language which he understands. The whole purpose of
communicating the “ground” to the detenu is to enable him to
make a purposeful and effective representation. If the “grounds”
are only verbally explained to the detenu and nothing in writing is
left with him, in a language which he understands, then that
purpose is not served, and the constitutional mandate in Article
22(5) is infringed . If any authority is needed on this point, which is so
obvious from Article 22(5), reference may be made to the decisions of
this Court in Harikisan v. State of Maharashtra [1962 Supp 2 SCR
918 : AIR 1962 SC 911 : (1962) 1 Cri LJ 797] and Hadibandhu Das v.
District Magistrate [(1969) 1 SCR 227 : AIR 1969 SC 43 : 1969 Cri
LJ 274].”
(emphasis supplied)
State of Bombay v. Atma Ram Shridhar Vaidya , AIR 1951 SC 157
“10 ….The question has to be approached from another point of view
also. As mentioned above, the object of furnishing grounds for the
order of detention is to enable the detenu to make a representation
i.e. to give him an opportunity to put forth his objections against
the order of detention. Moreover, “the earliest opportunity” has to
be given to him to do that. While the grounds of detention are thus
the main factors on which the subjective decision of the
Government is based, other materials on which the conclusions in
the grounds are founded could and should equally be conveyed to
the detained person to enable him to make out his objections
against the order. To put it in other words, the detaining authority
has made its decision and passed its order . The detained person is
then given an opportunity to urge his objections which in cases of
preventive detention comes always at a later stage. The grounds may
have been considered sufficient by the Government to pass its
judgment. But to enable the detained person to make his
representation against the order, further details may be furnished
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to him. In our opinion, this appears to be the true measure of the
procedural rights of the detained person under Art. 22(5) .
xxx xxx xxx
12…The conferment of the right to make a representation
necessarily carries with it the obligation on the part of the
detaining authority to furnish the grounds i.e., materials on which
the detention order was made. In our opinion, it is therefore clear
that while there is a connection between the obligation on the part
of the detaining authority to furnish grounds and the right given
to the detained person to have an earliest opportunity to make the
representation, the test to be applied in respect of the contents of
the grounds for the two purposes is quite different. As already
pointed out, for the first, the test is whether it is sufficient to
satisfy the authority. For the second, the test is, whether it is
sufficient to enable the detained person to make the
representation at the earliest opportunity .
13 . The argument advanced on behalf of the respondent mixes up the
two rights given under Art. 22(5) and converts it into one indivisible
right. We are unable to read Art. 22(5) in that way. As pointed out
above, the two rights are connected by the word “and”.
Furthermore, the use of the words “as soon as may be” with the
obligation to furnish the grounds of the order of detention, and
the fixing of another time limit, viz., the earliest opportunity, for
making the representation, makes the two rights distinct. The
second right, as it is a right of objection, has to depend first on the
service of the grounds on which the conclusion i.e. satisfaction of
the Government about the necessity of making the order, is based.
To that extent and that extent alone, the two are connected. But
when grounds which have a rational connection with the ends
mentioned in S. 3 of the Act are supplied, the first condition is
satisfied. If the grounds are not sufficient to enable the detenu to
make a representation, the detenu can rely on his second right and
if he likes may ask for particulars which will enable him to make
the representation. On an infringement of either of these two
rights the detained person has a right to approach the Court and
complain that there has been an infringement of his fundamental
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right and even if the infringement of the second part of the right
under Art. 22(5) is established he is bound to be released by the
Court . To treat the two rights mentioned in Art. 22(5) as one is neither
proper according to the language used, nor according to the purpose
for which the rights are given.
xxx xxx xxx
16. This detailed examination shows that preventive detention is not
by itself considered an infringement of any of the fundamental rights
mentioned in Part III of the Constitution. This is, of course, subject to
the limitations prescribed in clause (5) of Art. 22. That clause, as
noticed above, requires two things to be done for the person against
whom the order is made. By reason of the fact that cl. (5) forms part
of Part III of the Constitution, its provisions have the same force and
sanctity as any other provision relating to fundamental rights. As the
clause prescribes two requirements, the time factor in each case is
necessarily left fluid. While there is the duty on the part of the
detaining authority to furnish grounds and the duty to give the
detained person the earliest opportunity to make a representation
which obligations, as shown above, are correlated, there exists no
express provision contemplating a second communication from
the detaining authority to the person detained. This is because in
several cases a second communication may not be necessary at all.
The only thing which emerges from the discussion is that while the
authorities must discharge the duty in furnishing grounds for the
order of detention “as soon as may be” and also provide “the
earliest opportunity to the detained person to make the
representation”, the number of communications from the
detaining authority to the detenu may be one or more and they
may be made at intervals, provided the two parts of the aforesaid
duty are discharged in accordance with the wording of cl. (5). So
long as the later communications do not make out a new ground,
their contents are no infringement of the two procedural rights of
the detenu mentioned in the clause. They may consist of a narration
of facts or particulars relating to the grounds already supplied. But in
doing so, the time factor in respect of the second duty, viz., to give the
detained person the earliest opportunity to make a representation,
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cannot be overlooked. That appears to us to be the result of cl. (5) of
Art. 22.”
(emphasis supplied)
Harikisan v. State of Maharashtra , AIR 1962 SC 911
“7. It has not been found by the High Court that the appellant knew
enough English to understand the grounds of his detention. The High
Court has only stated that “he has studied up to 7th Hindi standard,
which is equivalent to 3rd English standard”. The High Court
negatived the contention raised on behalf of the appellant not on the
ground that the appellant knew enough English, to understand the case
against him, but on the ground, as already indicated, that the service
upon him of the Order and grounds of detention in English was
enough communication to him to enable him to make his
representation. We must, therefore, proceed on the assumption that the
appellant did not know enough English to understand the grounds,
contained in many paragraphs as indicated above in order to be able
effectively to make his representation against the Order of Detention.
The learned Attorney-General has tried to answer this contention
in several ways. He has first contended that when the Constitution
speaks of communicating the grounds of detention to the detenue,
it means communication in the official language, which continues
to be English; secondly, the communication need not be in writing
and the translation and explanation in Hindi offered by the
Inspector of Police, while serving the order of detention and the
grounds, would be enough compliance with the requirements of
the law and the Constitution; and thirdly, that it was not
necessary in the circumstances of the case to supply the grounds in
Hindi. In our opinion, this was not sufficient compliance in this
case with the requirements of the Constitution, as laid down in cl.
(5) of Art. 22. To a person, who is not conversant with the English
language, service of the Order and the grounds of detention in
English, with their oral translation or explanation by the police
officer serving them does not fulfil the requirements of the law. As
has been explained by this Court in the case of The State of
Bombay v. Atma Ram Sridhar, 1951 SCR 167 : (AIR 1951 SC
157), cl. (5) of Art. 22 requires that the grounds of his detention
should be made available to the detenue as soon as may be, and
that the earliest opportunity of making a representation against
the Order should also be afforded to him. In order that the
detenue should have that opportunity, it is not sufficient that he
has been physically delivered the means of knowledge with which
to make his representation. In order that the detenue should be in
a position effectively to make his representation against the Order,
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he should have knowledge of the grounds of detention, which are
in the nature of the charge against him setting out the kinds of
prejudicial acts which the authorities attribute to him.
Communication, in this context, must therefore, mean imparting
to the detenue sufficient knowledge of all the grounds on which
the Order of Detention is based. In this case the grounds are
several & are based on numerous speeches said to have been made
by the appellant himself on different occasions and different dates.
Naturally, therefore, any oral translation or explanation given by
the police officer serving those on the detenue would not amount
to communicating the grounds. Communication, in this context,
must mean bringing home to the detenue effective knowledge of
the facts and circumstances on which the Order of Detention is
based .”
(emphasis supplied)
16. 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
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documents. Therefore, he was well aware of his right to make a
representation.
17. 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.
18. 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.
19. For the foregoing reasons, we find no ground to interfere with the
impugned order passed by the High Court of Calcutta. The appeal stands
dismissed. Pending application(s), if any, stand(s) disposed of.
…………………………..J.
(M. M. SUNDRESH)
..………………………..J.
(ARAVIND KUMAR )
NEW DELHI;
JANUARY 04, 2024
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