Full Judgment Text
2009:BHC-AS:12770-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 446 OF 2009
Shahnawaz Siraj Shaikh )
Indian Inhabitant, Age 18 years, )
Residing at Room No.18, 2nd Floor, )
49, Ibrahim Mohammed Merchant )
Road, Khadak, Abba Jumma )
Building, Salim Mansion, Mumbai )
400 009. ... ... ... ) ... Petitioner.
(Son of the detenue)
Versus
1) The State of Maharashtra )
through the Additional Chief )
Secretary to the Government of )
Maharashtra, Home Department,)
(Special), Mantralaya, Mumbai )
32. )
2) Anna Dani, )
The Principal Secretary to the )
Government of Maharashtra, )
Mantralaya, Mumbai32. )
3) The Superintendent of Mumbai )
Central Prison, Arthur Road, )
Mumbai. )
4) The Superintendent of Prison, )
Nasik Road Central Prison, )
Nasik Road, Maharashtra. ).. ... Respondents.
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Mrs. A.M.Z.Ansari for the Petitioner.
Mrs. A. S. Pai, APP for the State.
CORAM : BILAL NAZKI and
A. R. JOSHI, JJ.
DATED : 24TH JULY, 2009.
ORAL JUDGMENT (Per Bilal Nazki, J.):
This petition has been filed by the son of the detenue
challenging the order of detention passed on 27th July, 2007 under
the provisions of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, for short "COFEPOSA
Act". The oder has been executed on 29th January, 2009. The detenue
while reaching Airport at Mumbai along with another person was
arrested on 14th March, 2007 on an information received by the
Directorate of Revenue Intelligence, Mumbai that he was likely to
import certain contraband goods. On 14th March, 2007 he was
arrested and then released on bail on 23rd May, 2007. During the
search on the person of the detenue number of goods were recovered
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costing Rs.43 lacs and odd. Thereafter an order of detention was
passed on 27th July, 2007 which could not be executed till 29th
January, 2009. The order of detention has now been challenged. The
counters have been filed by the Detaining Authority, by the Executing
Authority an also by the Directorate of Revenue Intelligence, Mumbai.
We have also perused the record.
2. Learned Counsel for the petitioner has taken mainly two
grounds to attack the order of detention. One is that there was
inordinate delay in executing the order of detention as it had taken
the respondents more than 1 and 1/2 years to execute the order of
detention and the live link between the alleged activity of smuggling
had got snapped. The second ground on which the order of detention
is challenged is that the detenue did not knew English language in
which the grounds of detention and the bulky material was served on
him when he was detained and as such he was deprived of making
any effective representation within Article 22 of the Constitution of
India. we will deal with the second ground first.
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3. Before going to the law on the subject, it will be pertinent to
note that in all statements, except one, there is an endorsement by the
respondents that the statement was explained in Hindi to the detenue.
But there is one statement which is first in point of time and is
recorded under Section 108 of the Customs Act dated 15th March,
2007 in which the detenue had stated, " I know to read, write and
understand English, Hindi and Urdu language." The statement is
signed, but at the end of it there is an endorsement in the hand
writing allegedly made by the detenue himself which endorsement
reads, " The above statement running into 4 pages have been given
voluntarily. This is my true and correct statement. No force, threat or
coercion have been used on me". But subsequently, the statement
recorded on 27th March, 2007 by the same authority, in this
statement he stated, " In continuation of my earlier statement, I give my
statement as under. The earlier statement dated 15th March, 2007 has
been shown to me and read over and explained to me in simple Hindi. I
state that the statement dated 15th March, 2007 given by me has been
correctly recorded as stated by me". We do not understand that if the
detenue knew English language then what was the need for him to
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say on 27th March, 2007 that the statement he had made on 15th
March, 2007 was explained to him in simple Hindi. The 27th March,
2007 statement also endorses that this statement was explained to
him in Hindi. Therefore, only logical conclusion is that when 15th
March, 2007 statement was recorded, he was dictated the
endorsement and he signed it. But when another statement was
recorded, just after 12 days, the detenue asked the authority to
explain to him in Hindi as to what had been recorded on 15th March,
2007and what had been recorded on 27th March, 2007.
Subsequently, when the order of detention was served on the detenue
along with the rounds of detention on 29th January, 2009, the record
shows that the detenue had endorsed that the order of detention,
grounds of detention and the material was explained to him in Hindi.
If the detenue knew English and he had said so on the first day of
arrest, then subsequently on number of occasions the respondents
would not have explained to him the documents or the statements in
Hindi. Therefore, we take it that may be the detenue had a working
knowledge of English language where he could sign or he could copy
or he could even write when dictated, but he did not have sufficient
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knowledge of English by which he could understand the documents
which were supplied to him and perhaps on the basis of such
understanding he could not make a representation within Article 22 of
the Constitution of India and as such the valuable right was defeated.
4. The law on communication of grounds of detention is very well
settled and as a matter of fact the law laid down by the Constitution
Bench of the Supreme Court in the case of Harikisan v/s State of
Maharashtra & Ors., reported in AIR 1962 Supreme Court 911 still
holds the field. There in paragraphs 7 and 8 the Supreme Court held
as under:
"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 upto 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 to effectively to make his representation
against the Order of Detention. The learned AttorneyGeneral
has tried to answer this contention in several ways. He has first
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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 fulfill
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, 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 and 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 on by the police officer serving
those on the detenue would not amount to communicating the
grounds. Communication, in this context must mean bringing
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home to the detenue effective knowledge of the facts and
circumstances on which the Order of Detention is based.
8. We do not agree with the High Court in its conclusion
that in every case communication of the grounds of detention in
English, so long as it continues to be the official language of the
State, is enough compliance with the requirements of the
Constitution. If the detained person is conversant with the
English language, he will naturally be in a position to
understand the gravamen of the charge against him and the
facts and circumstances on which the order of detention is
based. But to a person who is not so conversant with the
English language, in order to satisfy the requirements of the
Constitution, the detenue must be given the grounds in a
language which he can understand, and in a script which he can
read, if he is a literate person."
There are number of judgments relied upon. Basically, all those
judgments are the judgments which relied upon the judgemnt of the
Constitution Bench of the Supreme Court above referred. By way of
reference, the referred judgments are (1) Raziya Umar Bakshi v/s
Union of India & Ors., reported in AIR 1980 SC 1751; (2) Nainman
Pertapmal Shah v/s Union of India & Ors. , reported in AIR 1980 SC
2129 ; (3) Lallubhai Jogibhai Patel v/s Union of India , reported in
AIR 1981 SC 728 ; (4) Kamal Khushalani v/s The state of
Maharashtra , reported in AIR 1981 SC 814; (5) Shalini Soni v/s
Union of India , reported in AIR 1981 SC 814 ; and (6) Mrs. Nafisa
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9
Khalifa Ghanem v/s Union of India & Ors , reported in (1982) 1 SCC
422 .
The learned APP on the other hand relied on the unreported
judgment of the Division Bench of the Bombay High Court in Criminal
Writ Petition No. 1496 of 2001 ( Shri Sanmogam Subhaye Mupanar
@ Sunder v/s Shri M. N. Singh & Ors. ,) dated 22nd January, 2002.
In this judgment the Court found that as a matter of fact the detenue
knew English and it was only after thought of the detenue that he had
complained that he did not know English. Therefore, this judgment
would not have any application to the case at hand because we have
found that the detenue did not have sufficient knowledge of English
language to understand the gravamen of the allegations made in the
grounds of detention.
5. On this ground alone the writ petition can be allowed.
Therefore, we do not attempt to address ourselves to the second
argument raised by the learned Counsel for the Petitioner.
6. In view of the above, the order of detention bearing No. PSA
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1207/CR96/SPL3(A) dated 27th July, 2007 detaining Mr. Shaikh
Siraj Usman is hereby quashed and set aside and the respondents are
directed to release the detenu Mr. Shaikh Siraj Usman forthwith, if
not required in any other case.
7. Rule made absolute in the above terms.
8. Writ Petition is, accordingly, disposed of.
Sd/
(BILAL NAZKI, J.)
Sd/
(A. R. JOSHI, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 446 OF 2009
Shahnawaz Siraj Shaikh )
Indian Inhabitant, Age 18 years, )
Residing at Room No.18, 2nd Floor, )
49, Ibrahim Mohammed Merchant )
Road, Khadak, Abba Jumma )
Building, Salim Mansion, Mumbai )
400 009. ... ... ... ) ... Petitioner.
(Son of the detenue)
Versus
1) The State of Maharashtra )
through the Additional Chief )
Secretary to the Government of )
Maharashtra, Home Department,)
(Special), Mantralaya, Mumbai )
32. )
2) Anna Dani, )
The Principal Secretary to the )
Government of Maharashtra, )
Mantralaya, Mumbai32. )
3) The Superintendent of Mumbai )
Central Prison, Arthur Road, )
Mumbai. )
4) The Superintendent of Prison, )
Nasik Road Central Prison, )
Nasik Road, Maharashtra. ).. ... Respondents.
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Mrs. A.M.Z.Ansari for the Petitioner.
Mrs. A. S. Pai, APP for the State.
CORAM : BILAL NAZKI and
A. R. JOSHI, JJ.
DATED : 24TH JULY, 2009.
ORAL JUDGMENT (Per Bilal Nazki, J.):
This petition has been filed by the son of the detenue
challenging the order of detention passed on 27th July, 2007 under
the provisions of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, for short "COFEPOSA
Act". The oder has been executed on 29th January, 2009. The detenue
while reaching Airport at Mumbai along with another person was
arrested on 14th March, 2007 on an information received by the
Directorate of Revenue Intelligence, Mumbai that he was likely to
import certain contraband goods. On 14th March, 2007 he was
arrested and then released on bail on 23rd May, 2007. During the
search on the person of the detenue number of goods were recovered
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3
costing Rs.43 lacs and odd. Thereafter an order of detention was
passed on 27th July, 2007 which could not be executed till 29th
January, 2009. The order of detention has now been challenged. The
counters have been filed by the Detaining Authority, by the Executing
Authority an also by the Directorate of Revenue Intelligence, Mumbai.
We have also perused the record.
2. Learned Counsel for the petitioner has taken mainly two
grounds to attack the order of detention. One is that there was
inordinate delay in executing the order of detention as it had taken
the respondents more than 1 and 1/2 years to execute the order of
detention and the live link between the alleged activity of smuggling
had got snapped. The second ground on which the order of detention
is challenged is that the detenue did not knew English language in
which the grounds of detention and the bulky material was served on
him when he was detained and as such he was deprived of making
any effective representation within Article 22 of the Constitution of
India. we will deal with the second ground first.
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4
3. Before going to the law on the subject, it will be pertinent to
note that in all statements, except one, there is an endorsement by the
respondents that the statement was explained in Hindi to the detenue.
But there is one statement which is first in point of time and is
recorded under Section 108 of the Customs Act dated 15th March,
2007 in which the detenue had stated, " I know to read, write and
understand English, Hindi and Urdu language." The statement is
signed, but at the end of it there is an endorsement in the hand
writing allegedly made by the detenue himself which endorsement
reads, " The above statement running into 4 pages have been given
voluntarily. This is my true and correct statement. No force, threat or
coercion have been used on me". But subsequently, the statement
recorded on 27th March, 2007 by the same authority, in this
statement he stated, " In continuation of my earlier statement, I give my
statement as under. The earlier statement dated 15th March, 2007 has
been shown to me and read over and explained to me in simple Hindi. I
state that the statement dated 15th March, 2007 given by me has been
correctly recorded as stated by me". We do not understand that if the
detenue knew English language then what was the need for him to
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5
say on 27th March, 2007 that the statement he had made on 15th
March, 2007 was explained to him in simple Hindi. The 27th March,
2007 statement also endorses that this statement was explained to
him in Hindi. Therefore, only logical conclusion is that when 15th
March, 2007 statement was recorded, he was dictated the
endorsement and he signed it. But when another statement was
recorded, just after 12 days, the detenue asked the authority to
explain to him in Hindi as to what had been recorded on 15th March,
2007and what had been recorded on 27th March, 2007.
Subsequently, when the order of detention was served on the detenue
along with the rounds of detention on 29th January, 2009, the record
shows that the detenue had endorsed that the order of detention,
grounds of detention and the material was explained to him in Hindi.
If the detenue knew English and he had said so on the first day of
arrest, then subsequently on number of occasions the respondents
would not have explained to him the documents or the statements in
Hindi. Therefore, we take it that may be the detenue had a working
knowledge of English language where he could sign or he could copy
or he could even write when dictated, but he did not have sufficient
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6
knowledge of English by which he could understand the documents
which were supplied to him and perhaps on the basis of such
understanding he could not make a representation within Article 22 of
the Constitution of India and as such the valuable right was defeated.
4. The law on communication of grounds of detention is very well
settled and as a matter of fact the law laid down by the Constitution
Bench of the Supreme Court in the case of Harikisan v/s State of
Maharashtra & Ors., reported in AIR 1962 Supreme Court 911 still
holds the field. There in paragraphs 7 and 8 the Supreme Court held
as under:
"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 upto 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 to effectively to make his representation
against the Order of Detention. The learned AttorneyGeneral
has tried to answer this contention in several ways. He has first
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7
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 fulfill
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, 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 and 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 on by the police officer serving
those on the detenue would not amount to communicating the
grounds. Communication, in this context must mean bringing
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8
home to the detenue effective knowledge of the facts and
circumstances on which the Order of Detention is based.
8. We do not agree with the High Court in its conclusion
that in every case communication of the grounds of detention in
English, so long as it continues to be the official language of the
State, is enough compliance with the requirements of the
Constitution. If the detained person is conversant with the
English language, he will naturally be in a position to
understand the gravamen of the charge against him and the
facts and circumstances on which the order of detention is
based. But to a person who is not so conversant with the
English language, in order to satisfy the requirements of the
Constitution, the detenue must be given the grounds in a
language which he can understand, and in a script which he can
read, if he is a literate person."
There are number of judgments relied upon. Basically, all those
judgments are the judgments which relied upon the judgemnt of the
Constitution Bench of the Supreme Court above referred. By way of
reference, the referred judgments are (1) Raziya Umar Bakshi v/s
Union of India & Ors., reported in AIR 1980 SC 1751; (2) Nainman
Pertapmal Shah v/s Union of India & Ors. , reported in AIR 1980 SC
2129 ; (3) Lallubhai Jogibhai Patel v/s Union of India , reported in
AIR 1981 SC 728 ; (4) Kamal Khushalani v/s The state of
Maharashtra , reported in AIR 1981 SC 814; (5) Shalini Soni v/s
Union of India , reported in AIR 1981 SC 814 ; and (6) Mrs. Nafisa
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9
Khalifa Ghanem v/s Union of India & Ors , reported in (1982) 1 SCC
422 .
The learned APP on the other hand relied on the unreported
judgment of the Division Bench of the Bombay High Court in Criminal
Writ Petition No. 1496 of 2001 ( Shri Sanmogam Subhaye Mupanar
@ Sunder v/s Shri M. N. Singh & Ors. ,) dated 22nd January, 2002.
In this judgment the Court found that as a matter of fact the detenue
knew English and it was only after thought of the detenue that he had
complained that he did not know English. Therefore, this judgment
would not have any application to the case at hand because we have
found that the detenue did not have sufficient knowledge of English
language to understand the gravamen of the allegations made in the
grounds of detention.
5. On this ground alone the writ petition can be allowed.
Therefore, we do not attempt to address ourselves to the second
argument raised by the learned Counsel for the Petitioner.
6. In view of the above, the order of detention bearing No. PSA
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1207/CR96/SPL3(A) dated 27th July, 2007 detaining Mr. Shaikh
Siraj Usman is hereby quashed and set aside and the respondents are
directed to release the detenu Mr. Shaikh Siraj Usman forthwith, if
not required in any other case.
7. Rule made absolute in the above terms.
8. Writ Petition is, accordingly, disposed of.
Sd/
(BILAL NAZKI, J.)
Sd/
(A. R. JOSHI, J.)
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