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Judgment
Gokulakrishnan, J.—These three petitions for the issue of writs of habeus corpus for the release of the three detenus, are heard together in
view of their similarity.
In all these three writ petitions, the only ground urged by Mr. Ramalingam, learned counsel appearing for the petitioners, is that the materials
which formed the basis for detention were not communicated to the detenus in the language known to them, viz, Tamil.
In W.P. No. 6594 of 1982, one Arumugham is the detenu. In para (xi) of the grounds of detention served on him, it is stated as follows :-
Apart from the above instances, you were also involved in Customs seizure cases previously and penalty imposed on you. The details of cases are
as follows -
Seizure of polyester pant material valued Rs. 2,250/- on 20-12-1980 from your business premises
Seizure of textiles, car stereo torch lights and parasols valued Rs. 3275/- on 10-2-81 from your business premises
Order DOR 154/80 dated 7-9-81 of Asst. Collector Customs Ramanand Penalty Rs. 2000/- imposed on you DOR 187/80-81 dt. 19-10-81 of
Asst. Collector, Customs, Rameswaram, Penalty Rs. 250/- imposed on you.
In para 2 of the grounds of detention, it is also stated -
From the depositions of various persons involved in different seizure cases, it is evident that you have been continuously indulging in smuggling
activities. The penalty imposed on you under the Customs Act has not deterred you from engaging yourself in smuggling activities.
In W.P. No. 6727 of 1982, one Nalluswami alias Nallu is the detenu. In ground (viii) of the grounds of detention, it is stated -
In the seizure case, a show cause notice has been issued by the Assistant Collector of Central Excise Customs Rameswaram in his GOR 5/81-82,
dated 1-9-81, directing you to show cause why the goods should not be confiscated under the Customs Act 1962 and why a penalty should not
be imposed on you under S. 112 of Customs Act, 1962. You have not replied to the show cause notice so far, even though you have received the
same.
It is thus clear from the above, that you are indulging in the smuggling activities.
In W.P. No. 6727 of 1982 one Gunesekaran is the detenue. In paragraph xii of the grounds of detention, it is stated -
Apart from the above instances, you were also involved in earlier customs seizure cases also and penalty has been imposed on you. The details
are as follows :-
Seizure of nylon zip fasteners, Order No. 98/80-81 dt. 13-10-1980
nylon fishing nets, textiles and of Asst. Collector, Ramanathapuram
other goods valued Rs. 22400/-
Penalty Rs. 2000/- imposed with jeep
M DT 3110 valued at Rs. 15000/-
on 19-1-80
Seizure of Indian goods valued Order No. 101/80-81 dated 16-10-80
Rs. 15120 on 2-2-80 intended for of Asst. Collector, Ramnad
illicit export to Sri Lanka
Rs. 500/- on you.
In view of what has been discussed above, it is evident that you are engaging yourself in prejudicial activities, notwithstanding imposition of
penalties in your earlier offence cases and have been continuing your smuggling operations unabated.
In the above set out grounds the detaining authority has adverted to the previous activities of the detenu concerned. In two of the cases, the
previous activities ended in confiscation and fine and the third stopped with a show cause notice. Nevertheless, it is clear from the grounds of
detention, in the three cases that the authority concerned has specifically taken into consideration the said grounds before passing the detention
order concerned.
It is also clear that the above said grounds which related to the prior activities of the detenu concerned, were furnished to the detenu concerned
in English language.
According to Mr. Ramalingam, the detenus are not conversant with English language and they know only Tamil. According to the learned Public
Prosecutor, when the copies of the documents were furnished to the detenu concerned, they were explained to them in Tamil and they got these
documents after hearing the contents of the documents in Tamil. According to the learned Public Prosecutor, the detenus have put their signature to
this effect on the respective documents.
It is clear from the facts that the detenus are conversant only with Tamil language and the documents pertaining to the ground stated above
which were handed over to them, were in English language.
Mr. Ramalingam, learned counsel, would urge that as per Art. 22(5) of the Constitution, there is no effective communication of the grounds of
detention to the detenus concerned and therefore the orders of detention in these cases cannot stand.
Mr. Rajamanickam, the learned Public Prosecutor, appearing for the State, would submit that the contents of the documents have been
explained to the detenu concerned in Tamil and that will be sufficient compliance with Art. 22(5) of the Constitution. The learned Public Prosecutor
further submitted that the grounds in regard to which documents have been furnished to the detenus in English language, are not the only grounds
on which the detention orders have been passed, and in spite of these grounds the detention orders can be sustained. To substantiate this
contention, the learned Public Prosecutor would point out that S. 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act 1974 (hereinafter referred to as the Act) which reads as follows -
5-A. Grounds of detention severable - Where a person has been detained in pursuance of an order of detention under sub-section (1) of S. 3
which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds
and accordingly -
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are - (i) vague; (ii) non-existent;
(iii) not relevant (iv) not connected or not proximately connected with such person or (v) invalid for any other reason whatsoever.
and it is not therefore possible to hold that the Government or officer making such order would (not) have been satisfied as provided in sub-section
(1) of S. 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1)
after being satisfied as provided in the sub-section with reference to the remaining ground or grounds.
According to the learned Public Prosecutor, these grounds are severable from the main grounds on which alone the detention orders have been
passed against the detenus.
Article 22(5), of the Constitution reads as follows -
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order
shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity
of making a representation against the order."" :
The words ''communicate to such person'' occurring in Art. 22(5) formed the subject-matter of interpretation by the Supreme Court in Shri.
Lallubhai Jogibhai Patel Vs. Union of India (UOI) and Others, . In that decision, the Supreme Court has observed as follows (Paragraph 20) -
It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up
in English. It is true that Sri C. L. Antali, Public Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he
had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Art. 22(5) of the
Constitution, which 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. If the ''grounds'' are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands,
then that purpose is not served, and the constitutional mandate in Art. 22(5) is infringed. If any authority is needed on this point, reference may be
made to the decisions of this court in Harikisan Vs. The State of Maharashtra and Others, , and Hadibandhu Das Vs. District Magistrate and
Another, .
The very same reasoning was followed in Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam
Vs. State of Gujarat and Others, .
It is thus clear that sufficient knowledge of the basic facts constituting the grounds of detention should be imparted effectively and fully to the
detenu in writing in a language which he understands when grounds of detention are served. If the grounds are only verbally explained to the detenu
and nothing in writing is left with him in a language which he understands, then the purpose is not served and the constitutional mandate in Art.
22(5) is infringed. We are not concerned with the severability or otherwise of the grounds, as urged by the learned Public Prosecutor, but only with
the constitutional mandate which cannot be overriden by S. 5-A of the Act and which is an inescapable mandate. The question of sustaining the
grounds will come only at a later stage, but the constitutional safeguards with regard to the communication of the grounds so as to enable the
detenu to make an effective representation, have got to be adhered and satisfied without any exception.
The facts of these cases are clear to the effect that the documents pertaining to the abovesaid grounds were only verbally explained to the
detenus concerned and nothing in writing is left with them in a language which they understand, namely, Tamil. The argument that the grounds for
which documents are required in Tamil are severable and are not important grounds cannot be countenanced since the stage of testing the tenability
or otherwise of the grounds has not arisen in this case now. The fact remains that the grounds of detention make mention of the above said grounds
and the documents pertaining to those grounds were not given to the detenus concerned in the language known to them, viz., Tamil. Squarely,
these cases come within the mischief of Art. 22(5) of the Constitution, and in all force the decisions of the Supreme Court in Shri. Lallubhai
Jogibhai Patel Vs. Union of India (UOI) and Others, and Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias
Iqbal alias Gulam Vs. State of Gujarat and Others, apply to the present case. This obliges us to interfere with the orders of detention passed in
these cases, and all the three writ petitions are allowed with the direction that the detenus concerned be set at liberty forthwith. No costs.
Petitions allowed.