H. Rahim vs The State of Tamil Nadu

This writ petition is filed under Article 226 of the Constitution of India seeking the issue of a writ of habeas corpus for quashing the order of

detention dated 10-11-1986 passed against the petitioner and for setting him at liberty.

The impugned order of detention has been passed by the respondent-the State of Tamil Nadu in exercise of the powers conferred on it by

Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the Act with

a view to preventing the detenu from smuggling goods.

The facts of the case leading to the passing of the impugned order of detention have been set out in detail in the grounds of detention and we do

not think it necessary to recapitulate the same.

Though several grounds are taken in the affidavit in support of this writ petition challenging the validity of the order of detention, Mr. S.A. Abdul

Ghani, learned Counsel for the petitioner confined his arguments to the following grounds:

1) Inordinate and unexplained delay in passing the order of detention.

2) Delay in serving the order of detention on the detenu.

3) Non-furnishing of copies of the remand application, the order passed thereon by the learned Magistrate, the copy of the bail application of the

detenu dated 30-11-1985 and the order passed thereon by the learned Magistrate.

4) Non-furnishing of the Tamil translation of the Customs clearance card.

We shall now deal with these grounds:

Ground No. 1:--The incident which has led to the passing of this order of detention took place on 29-11-1985 when the detenu who arrived

from Singapore by flight SQ 042 was found concealing in his rectum 7 gold biscuits of 10 tolas each. The impugned order of detention was passed

on 10-11-1986, 11 months and 10 days thereafter. It is urged by the learned Counsel for the petitioner/detenu that this inordinate delay has not

been properly explained by the respondent and the order of detention is liable to be set aside. In Smt. Hemlata Kantilal Shah Vs. State of

Maharashtra and another, , the Supreme Court pointed out:

Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be

unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority.

....

The detaining authority is in no legal liability to tell or satisfy the detenu as to the causes of delay; it is under an obligation to satisfy the Court as to

the causes of delay to show that there was no infraction of the constitutional provisions laid down under Sub-article (5) of Article 22 of the

Constitution. A Bench of the Karnataka High Court in H.G. Ravindra v. State of Karnataka 1984 Crl LJ 45 observed thus:

If there is an inordinate delay between the acts imputed to the detenu and the order of detention, then the rationality of the nexus tends to snap.

This is where a reasonable explanation for the delay becomes relevant and material. If there is an unexplained delay, the order of detention

becomes bad on the ground that there is really no application of the mind of the detaining authority and, therefore, there is no genuine subjective

satisfaction at all.

In a very recent decision in Shiv Ratan Makim Vs. Union of India (UOI) and Others, the learned Judges of the Supreme Court observed:

It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an

inference may legitimately be drawn that there is no nexus between the incident and the order of detention and the order of detention may be liable

to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the

nexus between the incident and the order of detention.

In the light of these decisions we shall now consider the explanation for the delay.

The incident has taken place on 29-11-1985 and the statement of the detenu has been obtained on 30-11-1985. On that day itself a wireless

message has been sent to the Assistant Commissioner, Central Excise, Coimbatore to cause search of the residence of the detenu at No. 34,

Korkaipandian Road, Marappalam, Erode and a reply has been received on 30-11-1985. A further statement has been given by the detenu on

10-12-1985. The investigation was thus over by 10-12-1985. The issue of show cause notice much later is not a material document as the

materials were already available for passing the order of detention. Yet the order of detention has been passed only on 10-11-1986. It is explained

in the counter filed by the respondent that the proposal for detention came from the sponsoring authority only on 9-4-1986, that on 24-6-1986 a

letter was written to the Customs Department seeking clarifications and a reply was received on 8-7-1986. Again a letter was sent to the Customs

officials on 22-8-1986 calling for additional documents and a reply was received on 10-9-1986. A further letter was sent on 19-9-1986 for

translation copies, that a reminder was sent on 27-10-1986 and the reply was received only on 31-10-1986 and after perusing all the records, the

order of detention was passed on 10-11-1986. This explanation is hardly satisfactory. The inter-departmental communications cannot be

prolonged to an inordinate length of time so as to snap the nexus between the incident and the order of detention. The particulars of these

communications have not also been furnished. There is also nothing to show that this delay was considered by the detaining authority before

passing the impugned order of detention. In the circumstances, we hold that this delay of 11 months and 10 days has not been properly explained,

the rational nexus between the grounds on which the subjective satisfaction is sought to be reached and the purpose which had to be served by the

detention is snapped and the impugned order is vitiated thereby.

Ground No. 2:--The order of detention has been passed on 10-11-1986 and it has been served upon the detenu on 3-1-1987 and this delay is

sought to be made much of by the petitioner/detenu. It is seen from the counter filed by the respondent that on 10-11-1986 itself a letter was sent

to the Deputy Inspector General of Police, C.I.D., for apprehending the detenu. But, the detenu made himself scarce and hence the order could

not be served. There is absolutely nothing to impute any motive to the police officials in not apprehending the detenu in time. The detenu cannot

take advantage of his own conduct and challenge the order of detention on the ground that it had been served on him 53 days after it was passed.

This ground of attack is, therefore, unsustainable.

Ground No. 3:--It is the contention of the detenu that the copies of the remand application filed by the Customs Authorities before the

Additional Chief Metropolitan Magistrate on 30-11-1985 and the order passed thereon by the learned Magistrate, the copy of the bail application

filed by the detenu and the order passed thereon by the learned Magistrate have not been furnished to him along with the grounds and this failure

violates the provisions of Article 22(5) of the Constitution. The grounds furnished to the detenu refer to the arrest of the detenu, his production

before the Additional Chief Metropolitan Magistrate, the remand ordered by him and the fact that he was subsequently released on conditional

bail. There is, therefore, no doubt that these documents have been taken into consideration in passing the impugned order of detention. In fact, in

the counter filed by the respondent it is admitted that the detaining authority was aware of all these documents, but, copies of these documents

have not been furnished to the detenu. Time and again it has been pointed out that the grounds of detention served on the detenu must be

accompanied by copies of documents referred to or relied on by the detaining authority. As pointed out by the Supreme Court in Kirit Kumar

Chamanlal Kundaliya v. Union of India AIR 1961 SC 1621,

Once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the

detenu as part of the grounds or pari passu the grounds of detention.

....

Thus, it is absolutely clear to us that where the documents concerned are referred to, relied upon or taken into consideration by the detaining

authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately

on receiving the grounds of detention.

We therefore, hold that the on-furnishing [of] copies of the above documents vitiates the order of detention.

Ground No 4:--At the time when the detenu was intercepted at the airport at Madras on 29-11-1985 the Customs clearance card incorporating

the oral declaration made by the detenu has been seized from him and the detenu has been furnished with a copy of the said document. But, this

document is in English and the detenu does not know the English language. He is not provided with the Tamil translation of the same. The argument

advanced by the learned Public Prosecutor that the Customs clearance card is only a standardised form and there is no necessity to give a

translation thereof is unacceptable. It has been repeatedly pointed out that the grounds of detention and the documents referred to therein should

be in a language which the detenu understands. As observed by the Supreme Court in Shri. Lallubhai Jogibhai Patel Vs. Union of India (UOI) and

Others, ,

Article 22(5) of the Constitution requires that the grounds of detention must be ''communicated'' to the detenu. ''Communicate'' is a strong word. It

means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a

language which he understands. The whole purpose of communicating the ''ground'' to the detenu is to enable him to make a purposeful and

effective representation.

The failure of the detaining authority to furnish a Tamil translation of the Customs clearance card, in our opinion, is not in accordance with the

provisions of Article 22(5) of the Constitution and the order of detention cannot stand.

In view of our conclusions on grounds 1, 3 and 4 above, we hold that the order of detention has to be quashed.

In the result, the writ petition is allowed, the impugned order of detention is set aside and the detenu is ordered to be set at liberty forthwith.