HAZI ZAFEER Vs. UNION OF INDIA

JUDGEMENT

(1.) This judgment will dispose of two petitions under Article 226 of the Constitution of India moved by Haji Zaffar and Maseem Shah for issue of writs of habeas corpus or in the nature of habeas corpus in regard to their alleged illegal detention in the Central Jail, Tihar.

(2.) Both the petitioners, namely, Haji Saffar and Naseem Shah, claim to be Afghan nationals. They were detained by virtue of orders passed regarding each one of them on May 7, 1983 for their detention without trial by invoking Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. They were both detained with a view to preventing them from acting in any manner prejudicial to the augmentation of foreign exchange and as the appropriate authority was of the view that it was necessary to make orders in regard to them under Section 3(1) of the aforesaid Act. Grounds of detention, also dated May 7, 1983, in English and a translation in Urdu of the said grounds of detention were served on the two persons in Tihar Jail. According to these grounds of detention these two persons were allegedly indulging in activity of dealing in foreign exchange in an unauthorised manner. It is not necessary to note further facts mentioned in the grounds of detention in the view that we are going to take.

(3.) The detention has been challenged, inter alia, on the ground that the grounds of detention served on the detenus are in a language which is not fully understood by detenus as they neither know English nor Urdu. In reply to this contention an affidavit of Shri M.V.N. Rao) working as Additional Secretary (Anti Smuggling) in the office of Ministry of Finance, Department of Revenue, at New Delhi, was filed. This affidavit merely says that the grounds of detention along with documents relied were supplied to the detenus in Urdu. The grounds of detention were read over and explained in the language known to the detenus and in token of having received the same and the same having been explained to them, the detenus had acknowledged the same by signing on sheets of paper. They had also signed on the carbon copies of the grounds of detention at every page in token of having received the same. From a reading of this counter-affidavit it is clear that the grounds of detention that were supplied were in English but a translation in Urdu of those grounds of detention was also given to the detenus. We were not satisfied with this counter-affidavit and, therefore, we permitted the respondents to filed additional affidavits. Two affidavits have been filed, one sworn by Shri R. Mukhopadhyay, working as Deputy Secretary in the Ministry of Finance (Department of Revenue) at New Delhi, and the other of Shri B.S. Jarial, working as Assistant Superintendent in Central Jail, Tihar. According to these additional affidavits, in the Ministry/Department while processing the detention case there was insistence to put up Urdu translations of documents which were proposed to be relied upon by the detaining authority. Such of the documents which were relied upon by the detaining authority, with Urdu translations of those were also supplied to the detenus. Shri Mukhopadhyay's affidavit throws no light on whether the grounds of detention were explained to the detenus in the language understood by the detenus. Shri Jarial's affidavit makes an interesting reading. He states that the grounds of detention were served on the detenus in jail on May 11, 1983 in his presence. He goes on to say "The grounds of detention were read over and explained to the petitioner in his mother tongue i.e. PESHTO". The verification dated January 12, 1984 of this affidavit reads : "I the above named deponent do hereby verify that the contents of my above affidavit are true to my knowledge derived from the records maintained in my office." If the grounds of detention were read over and explained to the detenus in their mother tongue in Peshto it would be in the personal knowledge of Shri Jarial and not a matter of record. We leave it at that.