SHAHNAWAZ SIRAJ SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition has been filed by the son of the detenue challenging the order of detention passed on 27th July, 2007 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, for short "COFEPOSA Act". The oder has been executed on 29th January, 2009. The detenue while reaching Airport at Mumbai along with another person was arrested on 14th March, 2007 on an information received by the Directorate of Revenue Intelligence, Mumbai that he was likely to import certain contraband goods. On 14th March, 2007 he was arrested and then released on bail on 23rd May, 2007. During the search on the person of the detenue number of goods were recovered costing Rs. 43 lacs and odd. Thereafter an order of detention was passed on 27th July, 2007 which could not be executed till 29th January, 2009. The order of detention has now been challenged. The counters have been filed by the Detaining Authority, by the Executing Authority an also by the Directorate of Revenue Intelligence, Mumbai. We have also perused the record.

(2.) Learned Counsel for the petitioner has taken mainly two grounds to attack the order of detention. One is that there was inordinate delay in executing the order of detention as it had taken the respondents more than 1 and 1/2 years to execute the order of detention and the live link between the alleged activity of smuggling had got snapped. The second ground on which the order of detention is challenged is that the detenue did not knew English language in which the grounds of detention and the bulky material was served on him when he was detained and as such he was deprived of making any effective representation within Article 22 of the Constitution of India. We will deal with the second ground first.

(3.) Before going to the law on the subject, it will be pertinent to note that in all statements, except one, there is an endorsement by the respondents that the statement was explained in Hindi to the detenue. But there is one statement which is first in point of time and is recorded under Section 108 of the Customs Act dated 15th March, 2007 in which the detenue had stated, "I know to read, write and understand English, Hindi and Urdu language." The statement is signed, but at the end of it there is an endorsement in the hand writing allegedly made by the detenue himself which endorsement reads, "The above statement running into 4 pages have been given voluntarily. This is my true and correct statement. No force, threat or coercion have been used on me". But subsequently, the statement recorded on 27th March, 2007 by the same authority, in this statement he stated, "In continuation of my earlier statement, I give my statement as under. The earlier statement dated 15th March, 2007 has been shown to me and read over and explained to me in simple Hindi. I state that the statement dated 15th March, 2007 given by me has been correctly recorded as stated by me". We do not understand that if the detenue knew English language then what was the need for him to say on 27th March, 2007 that the statement he had made on 15th March, 2007 was explained to him in simple Hindi. The 27th March, 2007 statement also endorses that this statement was explained to him in Hindi. Therefore, only logical conclusion is that when 15th March, 2007 statement was recorded, he was dictated the endorsement and he signed it. But when another statement was recorded, just after 12 days, the detenue asked the authority to explain to him in Hindi as to what had been recorded on 15th March, 2007and what had been recorded on 27th March, 2007. Subsequently, when the order of detention was served on the detenue along with the rounds of detention on 29th January, 2009, the record shows that the detenue had endorsed that the order of detention, grounds of detention and the material was explained to him in Hindi. If the detenue knew English and he had said so on the first day of arrest, then subsequently on number of occasions the respondents would not have explained to him the documents or the statements in Hindi. Therefore, we take it that may be the detenue had a working knowledge of English language where he could sign or he could copy or he could even write when dictated, but he did not have sufficient knowledge of English by which he could understand the documents which were supplied to him and perhaps on the basis of such understanding he could not make a representation within Article 22 of the Constitution of India and as such the valuable right was defeated.