Amir Siddiqui vs Union of India (UOI) and Others

Vishnu Sahai, J.—Through this writ petition preferred under Article 226 of the Constitution of India, the Petitioner-detenu Amir Siddiqui has impugned the order dated 29.10.2001 passed by Mr. Rajendra Shanker Agrawal, Special Secretary, Home and Confidential Department, Government of U. P. detaining him u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the C.O.F.E.P.O.S.A. Act).

The detention order along with the grounds of detention, which are also dated 29.10.2001 was served on the Petitioner detenu on 17.11.2001 and their true copies have been annexed as Annexures-1 and 2 respectively to this petition.

We have heard learned Counsel for the parties. In our judgment, a reference to the prejudicial activities of the Petitioner detenu is not necessary for the decision of this writ petition because it is common ground between counsel for the parties that when the impugned detention order was passed against the Petitioner-detenu, he was on bail in Crime No. 9 of 2001 under Sections 132 and 135(1)(a) of the Customs Act, 1962 and, although the bail application and the bail order pertaining to the said crime number was placed by the sponsoring authority before the detaining authority and the translation of the relevant documents were furnished to the Petitioner-detenu in Hindi language, the copy of the bail order and bail application pertaining to the said crime number was not furnished to the Petitioner-detenu in Hindi language. We may mention that on the basis of the original file learned Counsel for the Respondents has accepted this position.

The Hon''ble Supreme Court in oft-quoted case of Abdul Sathar Ibrahim Manik Vs. Union of India and others, in paragraph 12 (6) has observed thus:

(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case, the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.

A perusal of the aforesaid paragraph would show that where the detenu is on bail at the time of the passing of the detention order, not only it is imperative to place before the detaining authority the bail application and the bail order but, it is equally imperative that their copies be furnished to the detenu. The latter is because then and then alone would the detenu be able to make an effective and purposeful representation in terms of his fundamental right guaranteed by Article 22(5) of the Constitution of India.

In our judgment, it is implicit that where the bail application and bail order are in a language with which detenu is not familiar, their copies should be supplied to him in a language known to him because then and then alone would he be able to exercise fundamental right of making an effective and purposeful representation under Article 22(5) of the Constitution of India.

True to his customary fairness, Mr. S. K. Singh, learned Counsel for the Respondents does not dispute that the Hindi translation of the bail application and bail order, pertaining to the Crime No. 9 of 2001, was not furnished to the detenu.

In our judgment, on account of this lapse, the detenu''s, fundamental right of making an effective and purposeful representation guaranteed to him by Article 22(5) of the Constitution of India was violated. This being so, we are left with no option but to allow this writ petition.

It is unfortunate that in a preventive detention under C.O.F.E.P.O.S.A. Act, the detenu has to go scott-free but this regrettable result cannot be helped. Eternal vigilance is the price which the law expects from the sponsoring and detaining authorities if they want a preventive detention order to be sustained by this Court under Article 226 of the Constitution of India. In their laxity lies the liberty of the detenu and lax indeed they have been because they have failed to furnish to the detenu the Hindi translation of the bail application and bail order in Crime No. 9 of 2001, referred to above.

In the result, we allow this writ petition, quash and set aside the impugned detention order dated 29.10.2001, and direct that the Petitioner-detenu Amir Siddiqui be released forthwith unless wanted in some other case.