YASHPAL BHATIA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has been detained by virtue of an order dated June 28, 1984 passed by the Additional Secretary to the Government of India, (who was duly authorised to pass the ordetion) in respect of the petitioner under Section 3(l)of the Conservation of Foreign Exchange and Prevention of Smuggling Activitiel Act, 1974 with a view to preventing him from acting in any manner prejudicial to the aug' mentation of foreign exchange. The petitioner has challenged the said order and his continued detention by a petition under Article 226 of the constitution of India.

(2.) Briefly stated the facts of the case are these : An information was received in December 1983 in the Delhi Zonal Office of the Enforcement Directorate, New Delhi that the petitioner along with his father Thakar Dass and brother Pramod Kumar have been indulging in illegal sale and purchase of foreign exchange in India and was also undertaking 'Hawala Monetary Transactions' between India and Afghanistan. Premises belonging to the petitioner, his father and brother were searched on December 13, 1983 by the officers of the Enforcement Directorate. As a result of the searches, certain documents were recovered and seized from the two premises. Indian currency amounting to Rs. 2,94,900.00 was also seized from the residential premises. On the same date the petitioner is purported to have made a statement in his own handwriting before the Enforcement officers under Section 40 of the Foreign Exchange Regulation Act, 1973 in which he is purported to have stated that he had been doing the business of dry fruits and kiryana under the name and style of M/s Chhabil Das Yash Pal since 1969 and had also been doing the business of brokerage of dry fruits and brokerage in money lending. Explaining the money seized, he is purported to have stated that it was the savings of the family. He could not produce any writing to support his statement with regard to seized currency He is further purported to have stated that there were no regular books of account of the aforesaid firm and that the only ledger seized had entries upto March 31, 1982, and that no cash book or ledger was maintained for the period subsequent to March 31, 1982. He is purported to have explained some documents seized during the raid on the two premises. The statement of petitioner's father was also recorded. Notice for appearance was given to the petitioner under Section 40 of the Foreign Exchange Regulation Act, 1973 for January 16, 1984. On that date the petitioner did not put in appearance. Summons were again sent to the petitioner requiring his appearance but he failed to appear. This happened on several dates. The petitioner levelled charges against the officers of the Directorate. Finally. both petitioner and hi? counsel appeared on May 10, 1985 before the officers of the Directorate of Enforcement when his statement was recorded. He is again purported to have explained some documents that had been seized from the aforesaid two premises. Grounds of detention containing all the particulars of what happened were served on the petitioner on his being detained by virtue of the af3resaid order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. He was also informed that he had a right to make a representation in view of the provisions of Article 22 (5) of the Constitution of India. Along with the grounds, documents as mentioned in the list attached thereto were also served on the petitioner. These, inter alia, included copies of certain entries in a note book that had been seized from one of the two aforesaid premises, which were raided, as noticed earlier.

(3.) The petitioner has challenged his detention on diverse grounds, The same grounds have been taken in the petitions under Article 226 of the Constitution of India, which have been filed by Thakar Dass, Nand Lal Bhatia and Manohar Lal. In the view, that we are going to take in this case, it is not necessary to either set out or discuss the various grounds on which the petitioner challenges his detention. In our view, the continued detention of the petitioner has to be held to be illegal inasmuch as the fundamental right guaranteed by Article 22 (5) of the Constitution of India stands violated in the case of the petitioner. We hold this for the reason that some of the documents supplied to the petitioner are in a language which is not known to him at all. Since he cannot read those documents or understand them, he cannot make any effective representation. It was the bounded duty of the detaining authority to have given translations of these documents to the petitioner so that he could make an effective representation. Inasmuch as the same were not given, the rights under Article 22 (5) of the Constitution have been violated and the continued detention of the petitioner becomes illegal.