MUSTAFFA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS writ petition is fired by the deten u himself under Art. 226of the Constitution of India challenging the order of detention dated 12. 3. 1992 passed by the first respondent in exerciseo f the powers conferred under Sec. 3 (1) ( i ) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (as amended) Central Act 52 of 1974) with a view to preventing the detenu from smuggling goods.

(2.) THE facts in so far as they are relevant for the disposal of the writ petition can be briefly stated as follows: On 1. 1. 1992 the detenu who travelled in the name of Kader Mohideen Kasim holding Indian Passport bearing No. H. 150670 issued at madras, arrived from Singapore, by Singapore Airlines Flight, carrying two pieces of hand baggage, namely, one DAI-ICHI TRADING multi colour ploythene bag and one balrin blue colour hand bag, at the Madras Airport. THE detenu declared to the Superintendent of Customs that he did not have gold/silver/vcr/cgp/tv and that the value of all other goods was rs.2 ,400. THE Customs Intelligence Officer on suspicion that the detenu might be carrying gold or silver kept concealed either on his person or in his baggage, intercepted him. He was brought to the Air Intelligence room along with the baggage and the baggage was opened and examined in the presence of two witnesses. On examination of the DAI-CHITRADING multi colour plastic bag, it contained five white cellophane tape covered bundles and two numbers of crude gold rings. When the five white cellophne tape covered bundles were opened, they were found to contain silver garanules weighing 25 kilograms and the two gold rings were found to weigh together 40 grams. Nothing incriminating was found in the other bag. THE abovesaid silver granules as well as the two gold rings were recovered under mahazar. THE travel documents which include Singapore Airlines Air ticket, the boarding pass and the customs clearance card were seized under the same mahazar. THE silver granules and the two gold rings were tested by a licenser goldsmith who testified to be pure silver and gold of 24 carat purity respectively. THE detenu was examined on the same day and his statement was recorded. Again he was examined on 2. 1. 1992 in respect of the address given in the passport. His residence No. 45, Kachaleeswarar Garden Street, Madras-1, was searched by the Customs Intelligence Officers and nothing incrinimating was recovered. THE enquiry revealed that the detenu never lived in the address given in the passport, namely, at No. 35, Krishnan Koil Stree t , Madra s -1. THE owner of the said premises, Mohana Sundaram was also examined on 3. 1. 1992. THE detenu was arrested on 2. 1. 1992 and produced before the Additional Chief Metropolitan Magistrate, E. O. II, on

(3.) NEXT it was contended by the learned Additional Public prosecutor that the detenu was supplied'with the Enlish translation of the copy of the document and as such the failure to supply legible copy of the Tamil translation of the document cannot be complained of and that it will not in any way be a ground to invalidate the grounds of detention. There is absolutely nothing to show that the detenu is well versed in English language also. From the mere fact that the detenu put his signature in English, we cannot infer or presume that he knows English, especially when the detenu has specifically stated that he does hot know English, that he had studied only a few classes in Tamil and is barely able to speak and write Tamil, that he does not know English and that he stopped his studies nearly 42 years back. Except the fact that the detenu put his signature in English, there is no material to show that he knows English. Even otherwise when the copies of the documents came into existence only in Tamil and they were illegible and when the same is asked for, it is no answer to say that English, translated copies were given. Unless a legible copy of the statements in the language in which it is given was furnished to the detenu , he cannot make out anything. It is to be noted that all these reasons which are now put forward in the counter-affidavit were not given in the order of rejection of the representation wherein supply of legible documents have been asked for. The learned counsel for the petitioner vehemently argued that statutory orders are to be judged according to the tenor and recitals therein and cannot be explained by any subsequent affidavit or otherwise, In support of his contention, the learned counsel drew the attention of this Court to the decision of the Supreme Court in Mohindar Singh v. Chief Election Commissioner, A. I. R. 1978 S. C. 8s1, which was rendered in pursuance of the earlier decision of the Constitution Bench reported in commissioner of Police v. Gordhandas , A. I. R. 1982 s. C. 16. Applying the ratio of this case,andin view of the finding that illegible copy of the document supplied along with, the grounds of detention has a vital bearing on the subjective satisfaction arrived at by the detaining authority and by the failure to supply the same even after the same was asked for in the representation, the detenu was denied of the opportunity of making effective and purposeful representation against the order of detention, the impugned order of detention is vitiated by the infringement of Constitutional safeguards provided under Art 22 (5) of the constitution India.