We have 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 Calcutta to set aside
the order of detention passed by the respondents.
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 information100 from them, a search was conducted yielding huge quantity of gold,
along with the recovery of foreign currencies of various120 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. Prior to the said order, he had obtained an
order of bail. The detention order was passed against the detenue on 05.09.2023
after which he was subsequently detained on200 19.09.2023 from his home, in the
presence of his family members. Following the heels of the said order, the
respondents made an endeavour to serve the grounds of detention along
with the240 relevant documents on 20.09.2023 with due translation in the
Bengali language.
The detenue who was in a correctional home firmly 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 grounds of detention, along300 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 receive360 any document", leading to the obvious inference that
his so-called ignorance of English was only an afterthought.
Two more attempts were made by the respondents to serve the
documents along with the grounds of detention. After refusing to receive the400 same 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 receive480 the grounds of detention, a fact
clearly indicated and proved through the panchnama.
Learned senior counsel appearing for the appellant500 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 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.
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 to600 have been an affidavit on
the refusal of the detenue pertaining to the grounds of detention, by the
official concerned.
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 favour of the detenue should find favour with the
Court.
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 of700 detention after due service of the detention order and
communication of the grounds of detention along with the documents relied720 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.
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 documents800 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.840 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 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 satisfaction900 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, an960 effective knowledge as being a detenue is of utmost importance.
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 or1000 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.
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 travel1080 on different channels, their waters merge at the destination. This
is for the due compliance of Article 22(5). The entire1100 objective is to extend knowledge
to the detenue leading to a representation on his decision to question the
detention order. Such a right is an inalienable right under scheme of the
Constitution of India, available to the detenue, corresponding to the duty of
the serving authority. 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.1192
