V RAJA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This writ petition is filed for the issue of a writ of habeas corpus to secure the liberty of one V. Raja, son of Velu Servai who is detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as COFEPOSA. Though there may not be necessity to elaborately delineate the facts, we would like to point out that the order of detention has come to be made on 9th July, 1982, taking into account also the involvement of the detenu on a previous occasion, in respect of which, there were proceedings under the Customs Act, 1962. Ground No. 8 of the grounds of detention reads as follows:

(2.) It is now well-settled that the words "communicate to such person the grounds" occurring in Article 22(5) of the Constitution of India could mean only "communicate the grounds of detention in the language known to the detenu", so as to enable him to make effective representation against the order of detention, and this alone, will satisfy the constitutional mandate. What exactly the "grounds" should mean is also a well-settled proposition. It would take in all constituent facts and materials that went into make up the mind of the detaining authority. We need not refer to very many citations in this behalf and it would suffice the purpose if we refer to two decisions of the Supreme Court in Lallubhai Josibhai v. Union of India1and Ibrahim Ahmad v. State of Gujarat2. As stated above, we find there is no answer on behalf of the respondent with regard to the ground raised that the detenu does not know English and he has not been communicated with the relevant material namely, the earlier adjudication proceedings in the Customs case in the language known to the detenu, namely, Tamil and this will definitely come within the dictum of the, Supreme Court decisions cited above. We must also point out that we have followed the dictum of the Supreme Court in our order dated 28th January, 1983 in (S. Ravindran and others v. State of Tamil Nadu and others3). In this view, there is no escape from the position that the constitutional mandate under Article 22 (5) stands infringed. The answer that the detenu himself was involved in such earlier proceedings and he knew about it and hence, he could not be said to have been prejudiced by non-furnishing of the Tamil translation, is no answer at all and we cannot visualise and give a ruling as to how far the detenu would have made an attempt to wash off the implications of such previous involvent, if he had been furnished with the Tamil translation. Such a test is alien to the question in issue.

(3.) At this stage, learned Public Prosecutor states that the order of detention could be sustained on other grounds also and relies on section 5-A of the COFEPOSA. Similar contention was also considered by us in our order referred to above and we repelled the same. At the risk of repetition, we must point out that we are not on the question of sustaining the order of detention on one or other of the grounds, but we are more on the question of compliance with the constitutional mandate under Article 22 (5). In view of our sustaining this ground of attack, we have not adverted to and investigated the other grounds urged. In the result, we have no other alternative but to interfere in the exercise of writ jurisdiction and accordingly, we allow this writ petition and direct the detenu to be released forthwith. There will be no order as to costs.