| SooperKanoon Citation | sooperkanoon.com/786188 |
| Subject | Criminal |
| Court | Chennai High Court |
| Decided On | Sep-13-1990 |
| Case Number | W.P. No. 16179 of 1989 |
| Judge | Bellie and; K. Swamidurai, JJ. |
| Reported in | 1991CriLJ2685; 1991(34)ECC190 |
| Appellant | Nithyakalyani |
| Respondent | Mahendra Prasad and Another |
| Appellant Advocate | B. Kumar, Adv. |
| Respondent Advocate | T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel |
| Cases Referred | Gazi Khan Alias Chotia v. State of Rajasthan |
Bellie, J.
1. This petition is by the wife of the detenu Radhakrishnan detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. The detention order was passed under section 3(1) of the said Act with a view to preventing the detenu from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods.
2. The grounds of detention gives the following facts :-
Acting on intelligence, on 15-10-1989, the Officers of the Directorate of Revenue Intelligence, Madras and Trichy visited the premises situate at 37-A, Laxminarayanapuram Agraharam, Simmakkal, Madurai-1 and the detenu was found there in possession of 70 gold bars with foreign markings. The detenu did not produce any document to show that these gold bars were licit ones and therefore they were seized. The detenu gave a statement on the same say to the Officers that for the past three years he was doing business in brokerage in buying and selling gold and silver ornaments and in that connection he came in contact with one Subramaniam, and ten days ago the said Subramaniam approached the detenu and asked him to sell 12 foreign marked gold bars of 10 tolas each and the detenu sold the same in the bazaar to brokers and got a commission of Rs. 100/- per bar. On 15-10-1989 the said Subramaniam, as told by him to the detenu earlier came to the house of the brother-in-law of the detenu Selvarangam and met him there and he gave the detenu 70 gold bars and he told him to give him the proceeds of the gold bars in four days' time and thereupon Subramaniam left and when he (detenu) was about to take away the said gold bars the Officers came to that house and seized the gold bars. Being satisfied on the materials placed before him the detaining authority Joint Secretary to Government of India, Ministry of Finance that it is necessary to detain the detenu under the Act, he passed he detention order under Section 3(1) of the Act.
3. Mr. B. Kumar, learned counsel for the petitioner attacking the order of detention raised three points viz.,
i. In the representation made by the petitioner on behalf of the detenu a clarification in the order of detention was sought for but that has not been clarified and therefore the detenu was not in a position to make effective representation against the detention order and hence the order is vitiated;
ii. Copies of certain documents were asked for in the representation but they were not supplied at all; and
iii. There was inordinate delay in consideration of the representation and this renders the detention illegal.
4. As regards the first point it is contended that the detenu did not know English and knew only Tamil and therefore he asked for Tamil translation of the detention order and the grounds and the Tamil translation was given, but the Tamil translation of the detention order is couched in a language which is ununderstandable and therefore a clarification was sought for but the detaining authority failed to clarify. The respondents denied that the detenu did not know English. Therefore there is controversy as to whether the detenu knew English or not. But since a Tamil version of the detention order has been given at request, if that order is not clear and ununderstandable then it is but proper the detaining authority must clear the same and make the order understandable.
On going through the Tamil translation copy of the detention order we find that the language in Section 3(1)(iv) which has been verbatim written in English in the original order has been wholly translated into tamil. While thus translating, as regards the words 'otherwise' occurring in the Section which has been carried to the original detention order it is written in Tamil as original in Tamil omitted. This word according to the learned counsel for the detenu gives a meaning different from the word 'otherwise' occurring in the section, and therefore the Tamil translation has not been correctly made and hence the detenu found it difficult to understand what is the real case against him.
But on careful reading of the representation we find that this is not the real grievance, and the real grievance appears to be that the Tamil translation reads that the detenu was engaged in trading in smuggled goods and the facts (stated in the grounds of order) do not at all justify that. In the Tamil translation for the words 'dealing in smuggled gods' it is written.'
It cannot be stated that the words 'dealing in smuggled goods' has been wrongly translated. We do not agree that dealing does not mean trading. As per the facts disclosed the detenu was in possession of 70 gold bars with foreign markings and in a statement he has stated that that has been given to him by one Subramaniam for selling. Therefore it cannot be said that the detaining authority is wrong in coming to the conclusion that he was engaged in dealing in smuggled goods. Considering all these we are not able to appreciate the argument of the learned counsel for the detenu that the Tamil translation is not clear and is ununderstandable. Thus we do not find any merit in this submission.
5. Coming to the second point, it is said that copies of some documents were required by the detenu but they were not supplied. These documents, according to the petitioner, are :
(i) copy of the counter filed by the detenu to a petition filed by the sponsoring authority for cancellation of the ball granted to detenu; (ii) copy of search warrants for the search of the house of the detenu and another man's premises; (iii) copy of the order passed in a petition filed by Selvarangam for anticipatory bail; and (iv) copy of the letter sent by the detenu to the Enforcement Regional Officer, Madras-17 stating that he has been wrongly implicated in the case. None of these documents were relied on by the detaining authority and they are not at all material ones and therefore it cannot be said that for non-supply of those documents the detention, order is vitiated.
6. Coming to the last point, it is argued that the representation dated 28-11-1989 was sent by the detenu's wife to the detaining authority and that has been received on 30-11-1989 but it has been disposed of only after 34 days i.e., on 2-1-1990 and thus there is inordinate delay and this delay is in violation of Art. 22(5) of the Constitution and hence the detention is illegal. On the respondents' side it is denied that there was inordinate delay. Mr. T. Srinivasamurthy, learned Additional Central Government Standing Counsel filed a memo of particulars about the representation according to which the representation by the detenu's wife was received by the Ministry on 30-11-1989, comments were called for from the sponsoring authority on 7-12-1989, comments were offered by the D.R.I. on 13-12-1989, comments were received in Delhi on 19-12-1989, A.D.G. (A) signed on 27-12-1989, Joint Secretary (COFEPOSA) signed on the same date, Foreign Minister signed on 31-12-1989, and the representation was rejected and communicated on 2-1-1990. From those particulars given, the learned counsel for the detenu argues no explanation has been given and similarly from 19-12-1989 to 27-12-1989 i.e., for eight days (9 days) there is no explanation and thus the respondents are not able to offer any explanation for total number of 15 days and this shows that the representation was left unattended for considerable days and thus unnecessarily consideration of the representation has been delayed and this renders the continued detention illegal. In support of this contention the learned counsel relies on some Judgments of the Supreme Court, important among them, according to him, being 'Harish Pahwa v. State of U.P.' : 1981CriLJ750 and 'Gazi Khan Alias Chotia v. State of Rajasthan' : 1990CriLJ1420 . In case i.e., 1981 Cri LJ 750 the relevant dates of consideration of the representation had been stated as follows :-
The State Government received the representation on the 4th June, 1980 but for two days no action was taken in connection with it. On the 6th of June, 1980 comments were called for from the Customs authorities with regard to the allegations made in the representation and such comments were received by the State Government on the 13th June, 1980. On the 17th of June, 1980, the State Government referred the representation to its Law Department for its opinion which was furnished on the 19th of June, 1980. The rejection of the representation was ordered on the 24th of June, 1980 and it was communicated to the jail authorities two days later.'
Not satisfied with the explanation given by the State the Court said that :
'There is no explanation at all as to why no action was taken in reference to the representation on 4th, 5th and 25th of June, 1980.'
The Court further stated that :
'It is also not clear what consideration was given by the Government to the representation from 13th June, 1980 to 15th June, 1980 when we find that it culminated only in a reference to the Law Department had to be consulted at all. Again, we fail to understand why the representation has to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned.'
Then commenting that the representation has not been dealt with expeditiously the Court held the detention unconstitutional and set the detenu at liberty.
In the second case : 1990CriLJ1420 which is the latest one, the Court stating that there is no explanation for the delay from July 3 to 9, 1989 i.e., for seven days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate, held that there is breach of constitutional obligation as enshrined in Art. 22(5) of the Constitution, and the detenu was directed to be set at liberty.
Considering the facts and the principle laid down in the above two decisions we think that the only conclusion that we can come to on the facts of the present case is that there is unexplained and undue delay in considering the representation. As seen above, from 30-11-1989 the date when the representation was received by the Ministry till 7-12-1989 when the comments were called for from the sponsoring authority no attention seems to have been bestowed on the representation at all. In the decision in : 1990CriLJ1420 (supra)) the Supreme Court has taken it as seven days delay from July, 3 to 9. If that be so from 30-11-1989 to 7-11-1989 there is a delay of eight days. Even if it can be argued that 7-11-1989 cannot be included for calculating the delay, even then there is a delay of seven days. Similarly between 19-12-1989 when comments from the sponsoring authority was received till 27-12-1989 there is a minimum delay of eight days. During these days of delay nothing seems to have been done.
However, it is said that between 30-11-1989 and 7-12-1989 there were two holidays (Saturday and Sunday) and between 19-12-1989 to 27-12-1989 there were three holidays (23, 24 and 25th). But in : (1980)ILLJ222SC (supra) in the delay of seven days there must be necessarily two days holidays. For this reason, and even otherwise, we are of the view that the said holidays cannot be pleaded as an explanation or excuse for the delay. If we take the period from 30-11-1989 to 7-12-1989 the two holidays are on 2nd and 3rd December, 1989. Therefore on the Ist December the representation should have been considered, or at least on the following one or two days after the holidays i.e. on 4th and/or 5th the representation should have been considered. Only on 7th simply comments were called for. Obviously there is no promptness in considering the representation. Similar is the case during the period from 19-12-1989 to 27-12-1989. Knowing that holidays are approaching on 23rd, 24th and 25th the representation should have been attended to on 19th, 20th, 21st or 22nd December, 1989 and even after the holidays i.e., on 26-12-1989 nothing has been done. Allowing the representation to simply lie without taking any action is not permissible in a matter of such vital importance i.e., when the liberty of a man is deprived. The representation must be considered with utmost expedition which means attention must be given to it even on the date of receipt of the representation and continuously if longer time is required and there should not be any postponement unless there is any compelling reason such as requirement of any further particulars of assistance. Thus considering it appears to us that as contended there is long unexplained delay in considering the representation. This renders the detention order unconstitutional and therefore the detenu's continued detention is illegal.
In the result on the view taken by us on point No. (iii) the petition is allowed and the detenu is ordered to be released forthwith.
7. Petition allowed.