Holding

A detention order is vitiated if the grounds are not explained in a language understood by the detenu, and failure to forward the detenu’s representation to the Central Government under Section 11 of COFEPOSA renders the detention illegal.

Summary

Razia Umar Bakshi was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) by the Gujarat Government. The detention order and its grounds were written in English, a language she did not understand, and no translation or explanation in a language she knew was provided. She filed a representation requesting that the grounds be explained and that her representation be forwarded to the Central Government under Section 11 of COFEPOSA; the authorities failed to do so and supplied the requested documents after the detention had already been confirmed. The Supreme Court held that when grounds are couched in a language unknown to the detenu, they must be explained and a translated script furnished, with a certificate attesting to such explanation; otherwise the detention order is vitiated. The Court also ruled that the statutory duty to forward the detenu’s representation to the Central Government cannot be discharged merely by the detenu sending a copy himself. Consequently, the detention was declared illegal and the petition was allowed, ordering the detenu’s release.

Issues considered

Whether a detention order is invalid when the grounds are expressed in a language not understood by the detenu and are not explained or translated as required by Article 22(5) of the Constitution.
Whether the detaining authority is obligated to forward the detenu’s representation to the Central Government under Section 11 of COFEPOSA, and whether the detenu’s own copy satisfies that duty.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Acts. 11, s. 3(1)
Constitution of Indias. Article 22(5)

Subjects

detentionhabeas corpusArticle 22(5)COFEPOSAtranslation of groundsrepresentation to Central Governmentconstitutional safeguardsprocedural compliance

Judgment

1398

.A RAZIA UMAR BAKSHI
v.
UNION OF INDIA AND ORS.
June 23, 1980
B [S. MURTAZA FAZAL ALI, J.]

Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, Section 3-When grounds of detention are couched in English, a language •
not known to the detenu and the grounds are not explained in the language
known to the detenu either, the detention order is vitiated-Fact that the
grounds of detention was explained to the detenu in the language should be ·
c explained by sworn affidavit by the afjicer who explained the grounds and not
by any other-Constitution of India, Article 22(5)-Right to repre.{entation 10
the Central Government Section 11 of COFEPO,S'A, explained.

Allowing the petition, the Court

,HELD : 1. Where. the detaining authority is s:1tisfied that the grounds ai:-e
D couched in a language which is not known to the detenu, it must see to it
that the grounds are explained to the detenu, a trv.nslated script is given to
him and the· grounds bear some sort of a certificate to show that the grounds
have been explained to the detenu in the language, which he understands.
[1400 D-El

A bare denial at the stage when the Habeas Corpus petition is :filed in ·1he
E court by the detaining authority that these formalities ~ere observed would be
of no consequence particularly when it is not supported by any document or
by any affidavit of the person who had done the job of explaining or trans-
lation. [1400 E-F]

Hadibandhu Das v. District Magistrate, Cuttack and Anr. [1968] 1 SCR
227; followed.
F 2. Courts frown on detention without trial and insist on the strict compli-
ance of the constitutional safeguards enshrined in .A.rticle 22(5) to the letter
of the law, because a non-compliance of these safeguards would itself be
sufficient to vitiate the order of detention. [1400 l~-G]
3. Section 11 of COFEPOSA confers a constitutionat right on the detenu
to have his representation considered by . the Centml Government. It is true
G that the Central Government has a discretion to revoke or confirm the deten- •
.j/

tion but the detenu' has undoubtedJy a right that his representation should be t
considered by the Central Government for whatever worth it is. The mere •
fact the.t the detenu had sent a copy to the Central Government does not ab-
solve the detaining authority from the statutory duty of forwarding the repre-
sentation to the Central Govennent. [1401 B-D]

... [The Court expressed the hope that in future the detaining authorities
should fully apply their mind so as to result in a. strict compliance of the
constitutional safeguards contained in the Constitution, more particularly, be-
cause the liberty of the subject is in peril.]
RAZIA UMAR BAKSHI v. UNION OF INDIA (Fazal Ali, !.) 1399

OiuGINAL JURISDICTION: :Writ Petition No. 631 of 1980. A
(Under Article 32 of the Constitution.)
Ram Jethmalani, M. M. Lodha and Harjinder, Singh for !he
Petitioner.
R. B. Datar, R. N. Sachthey and M. N. Shroff for the Respon-
dents.

.. FAZAL Au, J. (Vacation Judge) The detenu was detained under
sub-Section ( 1) of Section 3 of The. Conservation of Foreign Exchange
aad Prevention of Smuggling Activities (in short COFEPOSA) by
tho Government of Gujarat by its order dated January 30, 1980.
Tue.order was passed by Mr. P. M. Shah, Deputy Secretary to the c
Government of Gujarat who authenticated the said order on behalf
of the State Government. The detenu while making a representation
to the State Government .also prayed for supply of documents to
him in order to make a more ef!.ective representation. These docu-
ments however were supplied on March 27, 1980 although the order
D
of detention was itself confirmed on March 21, 1980. In the repre-
sentation sent to the Government, the detenu had made a specific
prayer that his representation shou!d be forwarded to the Central
Government for being considered.

In support of the rule, Mr. Ram Jethmalani, counsel appearing
E
fot the detenu raised two points before this ·Court. In the first place
it 'Was submitted that the counsel on behalf of the detenu has expressly
pleaded that the grounds of detention were couched in English, a
hlnguage which the detenu did not understand at all and these grounds
were not explained to him. A specific ground on this aspect of the
matter has ~n taken in ground No. XID at page 21 of the petition
which may be extracted thus : -
"That the detenu does not know English. .The ground~
of detmtion and the order of detention were in English. No
vernacular translation of the grounds was given nor they
were explained to detenu in a language known to him."
G
This allegation seems to have been denied by the respondents in
para 14 of the affidavit of Mr. P. M. Shah, on-behalf of the detaining
authority, where he stated that the grounds Were explained to the
~u in the language known to him. It was averred in para S that
<ibe Mr. A. K. Sharma, Police Inspector, C.I.Dc (Crime Branch),
Ahlnedabad had explained to the detenu the order 6f detenti<>n and B
1lle grounds communica1ed to him on January 30, 1980. This affi-
da'Yit, in my Opinion, is wholly inadmissible in evidence. If it wa8
1400 SUPREME COURT REPORTS [1980] 3 S.C.R.

-A a fact that Mr· Sharma had personally explained the grounds to the
detenu the'n the respondents should have filed an affidavit of Mr.
- Shanna himself to show that he had actually explained the contents
of the grounds to the detenu by translating the same in the language
whic)l he understood. No such affidavit is forthcoming. No con-
temporaneous record has been produced to show that Mr. Sharma had
'B actually explained or translated the grounds to the detenu. The ~r
vice of the grou'nd of detention on the detenu is a very precious con-
stitutional right and where the grounds are couched in · a language
which is not known to the detenu, unless the contents of the grounds ,
are fully explained and translated to the deteno, it will tantamount
to 'not serving the grounds of detention to the detenu and would thus
-c vitiate the detention ex-facie.
In case of Hatlibandhu Das v. District Magistrate, Cuttack &
Anr. [1969 (1) SCR 227), it was clearly held that merely oral expla-
nation of an order without supplying him a translation in a script or
language which the detenu understood amounted to a denial of right
of being communicated the grou'nds. In the instant case, it is not
even alleged in the affidavit of Mr. Shah that any tranSlation or trans-
lated script of the grounds was famished to the detenu.
In case of Hadibandhu Das v. District Magie/rate, Cutlack -.!<
ground alone. I would however like to observe that in eases where
the detaining authority is satisfied that the grounds are couched in a
language which is not known to the detenu, it must see to it that the
grounds are explained to the detenu, a translated script is given to
him and the grounds bear some sort of a certificate to sh01'
that the grounds have been explained to the detenu in the langu-
age which he understands. A bare de'nial at the stage when Habeas
Corpus petition is filed in the court by the detaining authority that
these formalities were ooorrved would be of no consequence parti-
cularly when it is not supported by ariy document or by any affidavit ·
of the person who had done the job of explaining or translation.
-(
We have pointed out in several cases that courts frown on deten-
tion without trial and insist on the strict compliance of the consti-
tutional safeguards enshrined in Article 22(5) to the letter of the law,
because a non-compliance of these safeguards would itself be suffi-
cient to vitiate the order of detention. · Despite our repeated obser-
vations, unfortunately, however the detaining authority continues to
pass orders of detention in a casual or cavalier fashion with the result
that the courts are compelled to release the detenus. We hope and
trnst that in future the detaining authorities should fully apply their
H mind so as to result in a strict compliance of the constitutional safe-
gnards contained in the Constitution, more particularly because th~
liberty of the subject is in peril.
llAZIA UMAR BAKSHI_v. UNION OF INDIA (Fazal Ali, !.) 1481

Another ground taken by Mr. Ram Jetbmalaiii in support of the
rule is that although the detenu had made a specific prayer in Im
representation to the State Government that his representation should
be fmwarded to the Central Government for consideration Uhder sec-
tian 11 of the Act; yet the detaining authority did not choose to
forward the representation to ·the Central Government at all. This
position is admitted and the defence taken is that as the detenu had
himself sent a copy to the Central Government, the detaining autho-
rity did not think it necessary to forward the representation ·to the
-central _Government. This defence is wholly unacceptable. Section
11 al. the Act confers a constitutional right on the detenu to have his
representation considered by the Ce'nfra!. Government. It is true
that the Central Government has a discretion to revoke or confirm the c
detention but the detenu has undoubtedly a right that his represen-
tation should be considered by the Central Government for whatever
.worth it is. The mere fact that the detenu had se'nt a copy to the
Omtra1 Government does not absolve the detaining authority from the
·stamtory duty of forwarding the representation of the detenu to the
·Central Government. D
For these reasons therefore I am satisfied that the continued deten-
tion of the dete'nu in this case is iegally invalid. I therefore allow
this application and direct that the detenu be released forthwith.
As the deten.u has now been transferred to Bhavnagar, the order
be sent to the Jailor at Bhavnagar. E

:S.R Petition allowed.

MGIPF-610SCl/80-2S00-18-3-8J ·