ANDREW WERNER Vs. UNION OF INDIA

JUDGEMENT

(1.) In the early hours of 30-11-1995, the officers of the Directorate of Revenue Intelligence intercepted two passengers - Lackner Warner, said to be a national of Austria and M/s Ute Eva Shultz, said to be a Dutch national - who arrived at the Hyderabad Airport by International Flight I.C. 592 coming from Muscut and recovered 86 foreign marked gold bars from Lackner Warner and 72 foreign marked gold bars from Ute Eva Shultz cancealed in their shoes. Both the passengers did not declare the possession of gold bars and they came out of the Airport through the green channel claiming that they did not have in their possession any dutiable goods. Both the passengers were arrested and two separate detention orders were passed by the Specially Empowered Officer directing their detention under Section 3 of the Conservation of Foreign. Exchange and Prevention of Smuggling Activities Act (for short 'the Cofeposa Act"). W.P.No.4678 of 1996 filed on behalf of Lackner Warner was allowed by a Division Bench of this Court on 25-4-1996 following the ruling of a Constitution Bench of the supreme Court in Kamalesh Kumar Ishwardas Patel vs. Union of India and others on the short ground that the specially Empowered officer did not independently consider the representation made by the detenu in that writ petition.

(2.) The present writ petition was filed challenging the order of detention dated 23-12-1995 passed against Ms.ute Eva Shultz. After the order of detention was passed, the grounds of detention were served upon the detenu. The detenu was produced before the Advisory Board on 16-2-1996 and the State Government after considering the opinion of the Advisory Board which was to the effect that there were sufficient grounds for passing the order of detention, confirmed the order of detention on 24-2-1996 with effect from 26-12-1995 for a period of one year. The grounds of detention also advert to several documents based upon which the satisfaction of the detaining authority was arrived at for the purpose of passing the order of detention and copies of the documents have also been served upon the detenu.

(3.) It is contended by Sri Harjinder Singh, learned counsel for the petitioner, that the order of detention was vitiated due to reasons more than one. The representation made by the detenu to the detaining authority was not at all considered. No opportunity was given to the detenu's advocate Sri P.P. Reddy to meet her and obtain instructions. Before the Advisory Board, the detenu was denied of the right of effective representation; she is not conversant with English language and the only language known to her is Polish. The documents were not translated into Polish language nor any interpreter was provided to her with the result she could not make an effective representation about her case before the Advisory Board, she was also denied of the right to have the service of an advocate before the Advisory Board to represent her case. Only on one occasion, pursuant to an order passed by the Special Judge for Economic Offences, the detenu was permitted to meet her advocate and at that time, the officials of the Department were present with the result, she could not effectively give any instructions to her counsel with the consequence that her guaranteed constitutional right under Article 22 (5) of the Constitution of India was violated. The learned counsel also relied upon the decision of the supreme Court in Francis Coralie vs. Union territory of Delhi a last contention urged is that the detaining authority has not adverted to the aspect of criminal prosecution before arriving at the requisite satisfaction to detain the detenu under the Act.