Mukul Gopal Mukherji, J.
1. This, Habeas Corpus application under Article 226 of the Constitution of India has been filed by one Abdul Kader Hamdan, brother of the detenu Omar Hamdan, who has been detained at Dum Dum Central Jail pursuant to an order of detention dated 23rd February, 1994 being P. No. 673/19/94 Cus-VIII, . Government of India, Ministry of Finance, Department of Revenue, issued by Shri Mahendra Prasad, Joint Secretary to the Government of India under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended, hereinafter referred to for the sake of brevity as COFEPOSA.
2. It is the contention of the petitioner that his brother Omar Hamdan, a Syrian national was intercepted by Customs Officials at Calcutta Airport when he was departing for Amman on 10th February, 1994. His baggage was searched which resulted in the recovery of 2393 pieces of snake skins of assorted sizes valued approximately at Rs. 11,96,500/-. Snake skins found were processed and tanned. These snake skins were seized on a reasonable belief that they were attempted to be smuggled out of India and are liable to confiscation under the provisions of Customs Act, 1962 read with Export and Import Policy 1992-97 and the Wild Life Preservation Act. The seizure list was prepared by Customs officers and grounds of arrest under Section 104 of the Customs Act, 1962 were also prepared. Further a summons under Section 108 Customs Act was served on him pursuant to which he made a confessional statement. The grounds on which he was arrested were prepared by one Sourav Chakraborty, Preventive Officer, Intelligence Unit, Calcutta Airport. On the following date that is on 11th February, 1994 Omar Hamdan was produced before the learned Chief Judicial Magistrate, Barasat. No bail application was filed or moved on his behalf and the learned Chief Judicial Magistrate, Barasat remanded him to jail custody till 24th February, 1994. On 16th February, 1994 a bail application was however moved after notice to the Customs authorities before the learned Chief Judicial Magistrate at Barasat who fixed the date of hearing on 18th February, 1994. On 18th February, 1994 the learned Chief Judicial Magistrate, Barasat rejected the bail application of Omar Hamdan. On 21st February, 1994 a bail application was moved before this Hon'ble Court and the same was rejected.
3. It is contended by the petitioner that despite specific directions, the Customs authorities failed to produce Omar Hamdan before the learned Chief Judicial Magistrate, Barasat on 24-2-94. On 26th February, 1994 when a bail application was moved before the High Court with notice upon the Customs authorities at the residence of a learned Judge, the learned Advocate for the Customs authorities submitted that an order of detention under COFEPOSA was served on him on 25-2-94 at about 5-45 p.m. and accordingly the bail application was contended as misconceived. It was further submitted that necessary permission from the learned Chief Judicial Magistrate had been obtained for such service of the detention order. The application for bail was adjourned till February 27, 1994. On 29th February, 1994 the bail application was directed to be placed before the regular Division Bench of this Hon'ble Court and it was subsequently rejected. On March 8, 1994 a petition dated 4-3-94 was moved before the learned Chief Judicial Magistrate on behalf of the prosecution giving out various steps taken by the prosecution for service of the detention order on the detenu and there was a prayer inter alia made that the said petition should be kept on record for future reference and the prayer on behalf of the prosecution was so granted.
4. It was submitted before us that even though on the 25th February, 1994 the order of detention under COFEPOSA was served on the detenu, the grounds of detention were not served on him contemporaneously. The order of detention was in English language and the detenu had poor knowledge in English. He was thus prevented from knowing what it really meant and implied. A letter was sent from his Advocate Mr. Ainul Haque to the Superintendent, Dum Dum Central Jail on 10th March 1994 giving out that the detenu, despite service of the detection order, was not served with the grounds of such detention. It was further stated in the said letter that in the event of any ground of detention being served upon the detenu, the Superintendent should immediately forward the same to him without any further loss of time. It was further given out in the letter that the reply to the said letter was extremely urgent and important and the said reply would be used before the appropriate forum at the appropriate stage. An answer was sought from the said Superintendent of Dum Dum Central Jail as to whether the grounds of detention have been served upon the Superintendent and if so, under what circumstances the same was so done, when the law envisaged that the grounds of detention must be served upon the detenu contemporaneously. It is the submission made by the petitioner that despite such lawyer's letter being sent to the Superintendent, Dum Dum Central Jail no reply was sent by the said Superintendent, Dum Dum Central Jail to the said learned Advocate.
5. Be that as it may, on 11th March, 1994 another bail application was moved before the Chief Judicial Magistrate, Barasat and it was rejected and the detenu was remanded to jail custody till 25th March, 1994. On 15th March, 1994 another letter was sent by an Advocate on behalf of the detenu to the Superintendent, Dum Dum Central Jail putting on record that the said learned Advocate had gone to Dum Dum Central Jail along with the writ petitioner, the brother of the detenu, and the writ petitioner came to know that the grounds of detention under COFEPOSA were served upon the detenu on the self-same date, that is, on 15.3.94 and the same was received by him under the detenu's signature with date. The said letter was duly receipted by the jail authorities on 15.3.94. But no reply was sent either to the said learned Advocate or to the detenu, contradicting the averments made by the said learned Advocate in his letter.
6. On 22nd March, 1994 the Habeas Corpus application was moved before this Hon'ble Court and it was directed to appear in the list on 5th April, 1994 with a further direction to complete filling of the affidavits in the meantime. Accordingly forwarding letters of the learned Advocate on record along with copies of the writ application were served on the respondents. On 5th April, 1994 the case was taken up for hearing and the same was adjourned on the prayer of the Union of India on the grounds inter alia that the said respondents would be filing an affidavit-in-opposition. The Division Bench directed the matter to appear on 11.4.94 with the observation that adjournment was given by way of a last chance so as to enable the respondents to file their affidavits. On 11th April, 1994 the matter appeared in the list but no affidavit-in-opposition was filed and on 17th April, 1994 a copy of the affidavit-in-opposition of Mahendra Prasad was served on the learned Advocate on record of the petitioner.
7. It was submitted by the learned Advocate for the petitioner Mr. Susanta Banerjee that the detenu was not communicated the grounds of detention in accordance with law. Even though it was admitted that the order of detention under COFEPOSA was served on the petitioner on 25th February, 1994, the grounds being not served earlier to 15.3.94 and that too after the learned Advocate appearing for the detenu had already written to the Superintendent, Dum Dum Central Jail drawing his attention to the particular fact about non-service of the grounds of detention, there was violation of the statutory rights of the detenu. Mr. Banerjee further submitted that even though on behalf of the Customs authorities Shri A. Mukhopadhyay, Superintendent of Customs (Preventive) took pains to file an application on 4th March, 1994 drawing the attention of the Court to the fact that the order of detention was served on the detenu on 25.2.94 by Shri Subrata Pal, Preventive Officer as a representative of the Collector of Customs (Preventive) West Bengal, in Dum Dum Central Jail, there was no mention in the four corners of the said application dated 4.3.94 that the grounds of detention had in fact been served on the detenu on 28.2.94. Had there been a service of grounds of detention on the detenu, there ought to have been a due mention of the same in the application dated 4th March, 1994. It was, however, given out in the said application that the Preventive Officer tendered the order of detention in presence of the Jailor and the Deputy Jailor of the said Jail. Necessary endorsements were made to that effect at the back of the acknowledgement copies of the order of detention and its translated version in Arabic language regarding the service of the papers and documents on the detenu on 25.2.94 inside the jail. It is indeed a fact that it was on 10.3.94 for the first time that the learned Advocate Mr. Ainul Haque is said to have sent a letter to the Superintendent of Dum Dum Central Jail complaining about non-service of the grounds of detention. Hence on 4.3.94 when Shri A. Mukhopadhyay, Superintendent of Customs (Preventive) filed an application, he had no occasion whatsoever to traverse the allegation of the learned Advocate allegedly made before the Superintendent of Dum Dum Central Jail about the non-service of the grounds of detention, if actually so made.
8. Mr. Banerjee further submitted before us that since no receipt was obtained from the detenu, it showed a lack of communication of the grounds of detention on the detenu. Mr. Banerjee construed the meaning and import of the word 'tender' regarding service of summons and on that analogy contended before us that the grounds of detention have not also been virtually tendered on the detenu so that he could effectively understand on what grounds he has been detained. He cited before us the decision in Yandrambam Sonachand Singh v. State of Manipur and Ors. reported in 1982 Cr. LJ. 77 for stressing the importance of communication of the order of detention along with the grounds of detention. It was held in the said case that the word 'communicate' means actual receipt of the grounds of detention by the detenu. The detaining authority is the 'communicator'. The grounds of detention is the 'communique'. The person who carries the communique is the vehicle of the communication. The object or purpose behind the transmission is to enable the communicated to comprehend and grasp the meaning of the grounds. Therefore, the communique or the grounds must reach the hand of the detenu to enable him to make an effective representation. The process of communication may originate when the grounds are prepared by the detaining authority. The process of communication originates when the communique is being despatched or carried for service. The act of communication is complete only when the detenu receives the grounds. No sooner personal service is over, the entire process of communication comes to an end. It is worthwhile to note that the legislature, in the fitness of things, did not use the words transmit or forward, sent or despatch but a positive and affirmative word 'communicate'. The only meaning of the word in the setting is to make the grounds known or to apprise the detenu of the grounds, for the obvious purpose of enabling him to effective representation. The official communique containing the gorunds, if served on the detenu within the stipulated period of five days, would be sufficient compliance with the provisions of the Act read with Article 22(5) of the Constitution. If the grounds are served in any official language within five days from the date of detention but the detenu demands the grounds in a language with which he is conversant, it would be due communication of the grounds but may not be effective communication from the point of view of the detenu. Under such contingency the detaining authority must furnish forthwith the grounds in the language desired by the detenu. If the translated copy is furnished within 10 days the case must attract the other provision of the Act. In such contingency the detaining authority should record in writing the circumstances under which an effective communication could not be made within five days. If the grounds are served but the detenu does not demand a translated copy of the grounds in a language understandable to him, the detenu cannot take advantage of Article 22(5) of the Constitution and urge that there was no effective communication. If the detenu does not understand the language of the grounds transmitted to him he must forthwith inform the detaining authority. In term the detaining authority must at once supply the translated copy of the grounds in the language desired by the detenu. It cannot be ruled as an absolute proposition that if the grounds are not furnished to the detenu within five days in the language with which the detenu is conversant, it would invariably make the order of detention invalid. The detenu must make a demand for such copy. If he does no object forthwith he cannot be allowed to take advantage of his own omission. Since we hold that the grounds of detention were served on the detenu, as is manifest from the other records including the Panchnama and the signature of the jail authorities, we rule out the contention that there was absence of communication of the grounds to the detenu and he was deprived of an effective right of representation.
9. We are, however, convinced on a perusal of the Panchnama and the other documents produced on behalf of the respondents that the grounds of detention actually were served on the detenu on 28.2.94 and it seems incredible that the grounds had in fact not been served on the detenu till 15.3.94 as was sought to be contended by the writ petitioner by the designed user of the lawyer's letters in this regard. The earlier letter of the learned Advocate dated 10th March, 1994 was not sent under registered post and we cannot draw a legal presumption that such a letter had in fact been sent to the Dum Dum Central Jail Superintendent. About the other letter dated 15.3.94 which seems to have been acknowledged by the Superintendent of the jail, it may only be pointed out that since the Union of India representing the detaining authority has taken up the matter in this court in answer to the Habeas Corpus application, the Superintendent, Dum Dum Central Jail did not come forward to make any specific averment in this regard. On perusal of the records produced from the respondents authorities we are convinced that not only the English version but the Arabic translation thereof the grounds of detention were served on the detenu on 28.2.94 and it was so done within the statutory period as enjoined in Articles 22(5) of the Constitution of India and under Section 3(3) of the Conservation of Foreign Exchange ad Prevention of Smuggling Activities Act, 1974.
10. The other contention of the petitioner that the detenu did not have any knowledge in English and that the order of detention and the grounds of detention not having been explained to him in Arabic, he was deprived of an effective right of representation against the order of detention, is unworthy or any credence whatsoever. From the Hotel Register in Rutt-Deen Hotel and the other papers and documents it was sought to be contended by the learned Advocate for the petitioner that the detenu did not have much knowledge in English. Be that as it may, when we are convinced that the Arabic version was really served on him and he was not prevented from making an effective representation which he did in fact make before the Advisory Board, it cannot be said that the detenu was prevented from an efficacious opportunity to know what the allegations against him were, which led to the issuance of the order of detention by the detaining authority.
11. As regards the statement made by the detenu under Section 108 of the Customs Act which was by way of a confessional statement recorded on 10.2.94 by the Customs Officers, we find that one Ghazi Abed, Station Manager, Royal Jordanian Airline was called by the Customs officials to give out a translation of the statements made by the detenu Omar Hamdan and the statements purportedly made under Section 108 of the Customs Act were verbally interpreted to the detenu by the said Ghazi Abed in Arabic. There is his own writing in English given by the detenu that he voluntarily handed over his passport (Syrian) to the Customs authorities for the purpose of investigation on 10.2.94.
12. Throughout the course of the statement under Section 108 of the Customs Act or in the writ application filed by his brother there is no denial of the fact that the detenu had in his possession the snake skins which formed the subject matter of the order or the grounds of detention. He had in fact visited India on five' occasions in the recent past and taking everything into account including his activities by way of an attempt to smuggle snake skins out of India, it was found necessary to pass an order of detention on him, on due satisfaction being arrived at by the detaining authority with a view to preventing him from smuggling goods in future. Grounds of detention are relevant and do not suffer from any infirmities. There is a reasonable nexus between the isolated act of attempted smuggling out of India the snake skins with the object of detention. The detenu in his own hand writing in English on 10.2.94 gave a declaration that he was not carrying anything contraband and he had nothing to declare (page 53 of the writ application). On the other hand his representation before the Advisory Board and his confessional statement under Section 108 of the Customs Act bear a clear admission of his complicity in securing 2393 pieces of snake skins clandestinely collected with a view to smuggling them out of India. We do not find any infirmity in the order of detention or the grounds of detention.
13. The other contention raised by Mr. Banerjee was about non-application of mind of the detaining authority to the facts of the case. It was contended that the detenu was held in detention in jail custody and there was no likelihood of his being released on bail when he was already under arrest and his passport was already seized. Therefore, there was no earthly chance of his resorting to smuggling activities or acting in any manner prejudicially to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods or dealing in smuggled goods otherwise or in harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. That apart from an isolated incident of 10-2-94 the detaining authority could not have drawn any inference against the detenu regarding the necessity of order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
14. We are afraid we do not find any force in the said submission of the writ petitioner either. The High Court under Article 226 of the Constitution of India or the Supreme Court under Article 32 do not sit on appeal on the order of preventive detention. The normal law is that when an isolated offence is committed, the offender is to be prosecuted but if there be a preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, the detaining authority can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of Article 22(5). The High Court under Article 226 or the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with, the court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, here in the facts of the case is under COFEPOSA, since that would be the function of an appellate court. We rely in this context on the observations made by the Hon'ble Supreme Court in Smt. Hemlata Kantilal Shah v. State of Maharashtra and Anr. reported in : 1982CriLJ150 .
15. As regards the other contention raised by Mr. Banerjee that the detenu has been arrested on a non-existent ground, the detenu being a foreigner when he was already in jail and his passport was already seized and the detention on the ground that the detenu was likely to indulge in smuggling was remotely impossible. Mr. Anjan Mukherjee, the learned Advocate for Union of India cited before us the decision in Abdul Sathar Ibrahim Manik v. Union of India and Ors. reported in : 1991CriLJ3291 . It was held in the said decision that the subjective satisfaction arrived at by detaining authority on proper application of mind on the question of compelling necessity was not subject to judicial review. Even though the detenu was already in jail and the detaining authority was aware of the said fact, it cannot be held that there was non-application of mind by the detaining authority. It was held in this context that a solitary incident can form the basis of an order of detention. Even if the bail application made by the detenu and the order of rejection thereof were not placed before the detaining authority, it was held in that case that the same would not amount to suppression of relevant materials. Even though the detaining authority was aware of actual custody of detenu, the question of non-application of mind does not arise because the possibility of his being enlarged on bail in a case under Customs Act could not be ruled out. It was further held in this case that while the grounds of detention were communicated to the detenu and the copies of the bail application moved by the detenu and the order of rejection were not supplied to the detenu, it would not vitiate the detention when the bail application and its rejection order were only referred to and not relied on by detaining authority while passing the order of detention and the detenu was fully aware of the contents of the documents.
16. We are convinced on a perusal of the relevant records before us that a meeting of the Advisory Board was held at New Delhi on 15.4.94 and representation submitted before the Central Government was heard by the Advisory Board in the physical presence of the detenu and the Advisory Board submitted the report along with the representation of the detenu on 21.4.94. The report regarding the opinion of the Advisory Board and also regarding the representation from the detenu were prepared by Senior Technical Officer, Government of India, Ministry of Finance, Department of Revenue, New Delhi on 25.4.94. The report was signed and forwarded by Joint Secretary (COFEPOSA) on 25.4.94. The report was considered by Assistant Secretary (A) New Delhi on 28.4.94. It was considered and signed by Minister of State, Revenue & Expenditure, at New Delhi on 29.4.94. The report was considered and signed by the Finance Minister on 29.4.94 and the file was received back by the Ministry's Office of E.I.B., (COFEFOSA) on 2.5.94. The confirmation order bearing No. 673/90/94 Cus-VIII stating the detention of the detenu for one year with effect from 25.2.94 was issued by the Ministry on 3.5.94 and the memorandum bearing No. F. 686/98/94 Cus-VIII communicating therein the rejection of the representation was issued by the Ministry on 3.5.94.
17. Thus we find that all the constitutional formalities were adhered to by the respondents authorities and there is nothing to interfere with the order of detention of the detenu. The application of Habeas Corpus under Article 226 accordingly stands rejected.
Krishna Chandra Agarwal, C.J.
18. I agree.