PREFACE
It is a matter of huge significance that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Sarfaraz Alam vs Union of India & Ors in Criminal Appeal No……. of 2024 (Arising out of SLP(Crl.) No. 13193 of 2023 and cited in Neutral Citation No.: 2024 INSC 18 and pronounced as recently as on January 4, 2024 in the exercise of its criminal appellate jurisdiction has explained the scope of Article 22(5) of the Constitution that pertains with the duty of the authorities in serving the grounds of detention to detenue and detenue’s right to make a representation. The Apex Court dismissed an appeal challenging the detention order of an individual apprehended for attempting to smuggle gold and foreign currencies without customs detection.”
By the way, the Court noted that there was no procedural error by the authorities as they had made efforts to translate documents into Bengali and the detenue was well aware of his right to make a representation. It was pointed out by the Court that the detenue was not entitled to any relief due to his deliberate suppression of facts. It must be also noted that the detenue had refused to receive the ground of detention, despite being proficient in English and had approached the Court with unclean hands. So no wonder that the Apex Court dismissed the appeal.
INTRODUCTION
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice MM Sundresh for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Aravind Kumar sets the ball rolling by first and foremost putting forth in para 1 that, “Heard the learned senior counsel appearing for the appellant and the learned Additional Solicitor General for the respondents. We have perused the pleadings, documents and judgments. The present appeal is at the behest of the brother-in-law of the detenue, who is challenging the validity of the detention order and aggrieved at the refusal of the High Court of Calcutta to set aside the order of detention passed by the respondents.”
FACTUAL BACKGROUND
To put things in perspective, the Bench envisages in para 3 that, “On receiving information pertaining to a consignment containing gold and foreign currencies, escaping the watchful eyes of the customs department, four persons were apprehended. On eliciting further information from them, a search was conducted yielding huge quantity of gold, along with the recovery of foreign currencies of various denominations. As a consequence, the detenue was arrested, followed by a detention order passed by the detaining authority in exercise of the powers conferred under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA Act”). Prior to the said order he obtained an order of bail.”
As we see, the Bench points out in para 4 that, “The detention order was passed against the detenue on 05.09.2023 after which he was subsequently detained on 19.09.2023 from his home, in the presence of his family members. Following the heels of the said order, the respondents made an endeavor to serve the grounds of detention along with the relevant documents on the very next day i.e., 20.09.2023 with due translation in the Bengali language. The detenue who was in a correctional home steadfastly refused to receive them despite persuasive attempts made by the Respondents. A panchnama was prepared, and before its due execution another abortive attempt was made to make him receive the grounds of detention, along with the relevant documents. The detenue reiterated his earlier stand, however, a facility was extended to him to read the documents in its entirety. The panchnama was signed not only by two independent witnesses but the detenue as well. Interestingly, the detenue after signing the panchnama in the English language has proceeded further to write “I have refused to receive any document”, leading to the obvious inference that his so called ignorance of English was only an afterthought.”
As it turned out, the Bench enunciates in para 5 that, “Two more attempts were made by the respondents to serve the documents along with the grounds of detention. After refusing to receive the same on the second occasion i.e., on 03.10.2023 it was finally received by him on 10.10.2023. Interestingly, the detenue, through the appellant, filed the Writ Petition on 03.10.2023 inter alia contending that the respondents have not served the grounds of detention. The Division Bench of the High Court of Calcutta dismissed the Writ Petition inter alia holding that it was the detenue himself who had refused to receive the grounds of detention, a fact clearly indicated and proved through the panchnama.”
DISCUSSION
Broadly speaking, the Bench observes in para 10 that, “Article 22(5) of the Constitution of India can broadly be divided into two parts. Of these two parts there lies an underlying duty and obligation on the part of the authorities in not only serving the grounds of detention as soon as the case may be, after due service of the detention order and communication of the grounds of detention along with the documents relied upon in the language which he understands, but also for the purpose of affording him the earliest opportunity of making a representation questioning the detention order.”
Do note, the Bench notes in para 11 that, “Therefore, the first part involves the bounden duty of the authorities in serving the grounds of detention containing such grounds which weighed in the mind of the detaining authority in passing the detention order. In doing so, adequate care has to be taken in communicating the grounds of detention and serving the relevant documents in the language understandable to the detenue. The second part is with respect to his right of making the representation. For exercising such a right, a detenue has to necessarily have adequate knowledge of the very basis of detention order. There is a subtle difference between the background facts leading to detention order and the grounds of detention. While the background facts are not required in detail, the grounds of detention which determine the detention order ought to be found in the grounds supplied to the detenue. In other words, the knowledge of the detenue is to the subjective satisfaction of a detaining authority discernible from the grounds supplied to him. It is only thereafter that a detenue could be in a better position to take a decision as to whether he should challenge the detention order in the manner known to law. This includes his decision to make a representation to various authorities including the detaining officer. Therefore, an effective knowledge qua a detenue is of utmost importance.”
Do also note, the Bench notes in para 12 that, “On the second aspect, a detenue has to be informed that he has a right to make a representation. Such a communication of his right can either be oral or in writing. This right assumes importance as a detenue in a given case may well be a literate, semi-literate or illiterate person. Therefore, it becomes a cardinal duty on the part of the authority that serves the grounds of detention to inform a detenue of his right to make a representation.”
Be it noted, the Bench notes in para 13 that, “While the aforesaid two rights and duties form two separate parts of Article 22(5) of the Constitution of India, they do overlap despite being mutually reinforcing. Though they travel on different channels, their waters merge at the destination. This is for the due compliance of Article 22(5). The entire objective is to extend knowledge to the detenue leading to a representation on his decision to question the detention order. Such a right is an inalienable right under scheme of the Constitution of India, available to the detenue, corresponding to the duty of the serving authority.”
Quite significantly, the Bench then postulates in para 14 that, “Having reiterated the said principle of law, the question for consideration is ‘to what extent a communication can be made both orally and in writing’. In a case where a detenue is not in a position to understand the language, a mere verbal explanation would not suffice. Similarly, where a detenue consciously declines to receive the grounds of detention, he has to be informed about his right to make a representation. In such a scenario, the question as to whether the grounds of detention contained a statement that a detenue has got a right to make a representation to named authorities or not, pales into insignificance. This is for the reason that a detenue despite refusing to receive the grounds of detention might still change his mind and receive them if duly informed of his right to challenge a detention order by way of a representation. We may clarify, in a case where a detenue receives the ground of detention in the language known to him which contains a clear statement over his right to make a representation, there is no need for informing verbally once again. Such an exercise, however, would be required when the grounds of detention do not indicate so.”
Briefly stated, the Bench then propounds in para 15 that, “We would like to reinforce our position on the aforesaid exposition of law by placing reliance on the following decisions of this Court:
· Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427
· State of Bombay v. Atma Ram Shridhar Vaidya, AIR 1951 SC 157
· Harikisan v. State of Maharashtra, AIR 1962 SC 911.”
Most significantly, the Bench mandates in para 16 that, “On facts, we find that the detenue is not entitled to any relief as he has not only suppressed the facts as proved in his refusal to receive the grounds of detention, apart from reading them in detail, but has also approached the Court with unclean hands. It seems to us that it is a deliberate ploy adopted by the detenue to secure favourable orders from the Court. A perusal of the panchnama clearly indicates the adequacy of his knowledge in English, as he has not only signed the document in English but also made his objection with respect to receipt of the grounds of detention. We find no error in the procedure adopted by the respondents as due compliance was made to translate all documents in Bengali apart from persuading the detenue to receive them. In addition, the panchnama was signed by the independent witnesses. The detenue also read the grounds of detention and the relevant documents. Therefore, he was well aware of his right to make a representation.”
For clarity, the Bench clarifies in para 17 that, “As discussed, the grounds of detention forming the basis of the satisfaction of the detaining authority, were made known to the detenue. He cannot seek all the facts, including access to the telephonic conversation relied on, especially when he did not exercise his right to make the representation. It is pertinent to mention that we are only dealing with the validity of the detention order and not a regular criminal case against the accused.”
In addition, the Bench then specifies in para 18 stating that, “The other grounds raised also do not merit any acceptance, in the light of our earlier discussion. We also find that the grounds of detention were attempted to be served on the detenue at the earliest point of time – i.e. on the very next day after his detention.”
CONCLUSION
Finally and as a corollary, the Bench then concludes by holding aptly in para 19 that, “For the foregoing reasons, we find no ground to interfere with the impugned order passed by the High Court of Calcutta. The appeal stands dismissed. Pending application(s), if any, stand(s) disposed of.”
In sum, we thus see that the Apex Court has elaborated and specified quite exhaustively as to what are the duties of the detaining authority and what are the rights of the detenue under Article 22(5) of the Constitution. The top court thus held that the detenue is not entitled to any relief as he approached the Court with unclean hands. The Supreme Court thus refused to interfere with what the Calcutta High Court held and dismissed the appeal. Very rightly so!