MOOSA VELLIAT Vs. ASSTT SECRETARY, GOVERNMENT OF MAHARASHTRA

JUDGEMENT

(1.) The detenu in this case is detained under the COFEPOSA Act vide order dated 23rd April, 1982. It is an admitted position that together with the grounds of detention version in Malayalam of the documents and statements enumerated at Items Nos. 1 to 5 of the list of documents were supplied to the detention. Thus in substance the copies of these documents in original which were in English language were not supplied to the detenu together with its Malayalam translation. It is also an admitted position that so far as the documents at Items Nos. 6, 7 and 8 are concerned, the only English copies of the said documents were supplied and their Malayalam translation was not supplied to the detenu. In the petitioner it is stated by the petitioner that uptil now in all matters relating to detentions under COFEPOSA Act, the detaining authority used to supply copies of the statements and documents in original English language and translated version of those documents was also supplied for the benefit of the detenu if he was not conversant with the English language. In spite of this, in the present case the copies of documents in English were not supplied and only Malayalam translation is supplied to the detenu.

(2.) Shri Merchant the learned counsel appearing for the petitioner-detenu contended before us that because of the non-supply of the original English copies of the documents detenu's right to make an effective representation under Article 22 (5) of the Constitution is violated. According to the learned counsel though it is stated in the grounds of detention "that the copies of statement and documents placed before the detaining authority as mentioned in the accompanying list are enclosed". In fact copies of the documents and statements as placed before the detaining authority were never supplied to the detenu. He has further stated that from the affidavit filed on behalf of the detaining authority, it is further clear that there was apparent mistake between the original English documents and the translation so far as the grounds of detention are concerned. This position is admitted by Shri Chougule, the then Secretary to the Government of maharashtra. Home Department in para 8 of his affidavit. Shri Merchant then submitted that the communication of the grounds is not complete and perfect until copies in original language are also supplied to the detenu, because in that case it is not possible for the detenu to compare the translation with the original so as to ascertain whether the translation is true and correct translation or not. Shri Merchant has also raised a contention that in a given case a representation against the order of detention could be drafted by and made through a legal practitioner. The detenu is also entitled to take help of a friend for drafting the representation and in a given case he can seek assistance of his next friend to represent his case before the Advisory Board. Since the copies of the documents in original language were not supplied to the detenu and his next friend, and lawyer were not conversant with Malayalam language his right to make an effective representation under Article 22 (5) of the Constitution is violated. He also contended that because the copies of the documents were not supplied in English language his lawyer had a difficulty in filing this writ petition, and he could not file or attach necessary annexures to this petition. Nobody was also available who could translate the documents from "malayalam' to English for the benefit of his lawyer or this Hon'ble Court.

(3.) On the other hand it is contended by Shri Kotwal that under Art. 22 (5) as well as S. 3 (3) of the COFEPOSA Act, the obligation upon the detaining authority is to communicate to the person detained all the grounds on which the order of detention is based. In the present case as the detenu knew Malayalam language copies of the translated documents were supplied to him in malayalam. This is substantial compliance with the provisions of S. 3 (3) of the Act, as well as art. 22 (5) of the Constitution. It is not obligatory on the part of the detaining authority to supply the copies of the documents in original language also. Therefore according to Shri Kotwal it cannot be said that only because the translated copies of the documents in Malayalam were supplied to the detenu, his right to make an effective representation under Article 22 (5) has been violated. In support of this contention Shri Kotwal drew assistance from the decision of the supreme Court in AIR 1982 SC 1029 : (1982 Cri LJ 799) Devji Vallabhbhai Tandel v. Administrator of Goa. Daman and Diu and AIR 1981 SC 2166 : (1981 Cri LJ 1825) Wasi Uddin ahmed v. District Magistrate, Aligarh, U. P.