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Judgment
P. Sathasivam, J.—The detenu, who is detained u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 (in short COFEPOSA Act) by the impugned order dated 8.6.2004, challenges the same in this petition.
Though several contentions have been raised challenging the grounds of detention, the learned counsel appearing for the petitioner concentrated
on the only contention, namely, that the representation sent by the wife of the detenu, though received by the State Government on 9.7.2004, was
returned by the State Government with a request to send English translation, only on 28.7.2004, after a period of 19 days, which has caused
prejudice in considering her representation.
While elaborating the above contention, it is stated that the detenu''s wife sent her representation in Malayalam to the State Government and the
same was received on 9.7.2004. In the counter affidavit in paragraph 12, the above aspect, namely, receipt of representation made by the
detenu''s wife and the same was received by the Government in the Public (Tapal) Department on 9.7.2004, has not been disputed. However, in
the same paragraph, it is stated that as the representation was in Malayalam, the contents of which could not be understood by the Tapal section
and there is also no Malayalam Translator in the State Government, the same was immediately sent to the sender, with a request to send the same
in English and Tamil, on 28.7.2004. Though before this Court, the learned Government Advocate represents that on receipt of Malayalam
representation from the wife of the detenu on 9.7.2004, the Tapal section had sent the same to the Translation Department on 13.7.2004,
admittedly no such averment has been made in the counter affidavit while explaining the delay between 9.7.2004 to 28.7.2004. It is not the case of
the respondents that the detenu or his relatives have to send their representation only in English or in Tamil. In such circumstance, even though the
representation of the detenu''s wife is in Malayalam and the same was received on 9.7.2004, if the department of the State Government is not
conversant with Malayalam, it is but proper to return the same with a request to resubmit either in English or in Tamil form, immediately. Here
again, though in the counter affidavit it is stated that the said Malayalam representation was ''immediately'' returned to the sender, the fact remains,
even according to them, the same was returned only on 28.7.2004. There is no proper acceptable explanation for keeping the Malayalam
representation for a period of 19 days without taking proper decision and returning the same to the wife of the detenu. No doubt, the translated
copy of the representation was sent and received by the State Government on 18.8.2004 and after consideration, the State Government rejected
her representation on 28.8.2004. Even according to the learned counsel for the petitioner, there is no inordinate delay in considering the English
version of the representation. However, he is concerned with the delay between 9.7.2004 to 28.7.2004.
In this regard, learned counsel for the petitioner has relied on a Division Bench decision of this Court reported in K. Jayakumaran Vs. The
District Collector District Magistrate and Others, . In that case, though a Malayalam representation was made to the Jail Authority on 11.6.1999,
the Jail Authority, after noticing that the same was in Malayalam, refused to receive the same. The Division Bench, after pointing out that because
of the conduct of the Jail Authority in not accepting the representation of the detenu, concluded that a valuable time of more than seven or eight
days have been lost in considering the representation of the detenu, which was sent by the Jail Authority to the Government only after the receipt of
the lawyer''s notice. After finding fault with the Jail Authority in not sending the representation to the Government immediately and waited till
Lawyer''s notice dated 17.6.1999, following the judgment of the Supreme Court rendered in 1989 SCC (Crl) 554 (Aslam Ahmed Zahire Ahmed
Shaik v. Union of India), the Division Bench quashed the detention order. Considering the factual details available, we are of the view that the said
decision is applicable to the case on hand.
In the light of what is stated above and in view of the unexplained delay between 9.7.2004 and 28.7.2004, we hold that the detenu had been
considerably prejudiced in his wife''s representation not being considered as early as possible and this vitiates the order of detention accordingly.
In the result, the Habeas Corpus Petition is allowed. The impugned order of detention is quashed. The detenu is ordered to be set at liberty
forthwith unless his detention is required in connection with any other case.