Preventive Detention - Delhi HC Clarifies Functions Of Detaining Authority In Issuing And Communicating Detaining Order To Detenue

The Delhi High Court has clarified the requirements for issuing  and communicating a detention order to the detenue  under Article 22(5) of the Constitution of India

A bench of Justice Siddharth Mridul and Justice Anup Bhambhani held -

(i) A detenu has a fundamental right under Article 22(5) that the grounds on which a detention order has been made against him, be communicated to him as soon as may be; and that he be afforded an opportunity of making a representation against the detention order at the earliest.

(ii) Interpreting the scope and operation of this fundamental right, the Hon'ble Supreme Court has laid down that 'communication', within the meaning of Article 22(5), means imparting to the detenu sufficient knowledge of the grounds on which a detention order has been made; so that the detenu is in a position to effectively make a representation against the order.

(iii) The purpose of Article 22(5) is not served if, the grounds of detention are only verbally explained and nothing in writing is left with the detenu in a language which he understands.

(iv) Communicating the grounds of detention effectively and fully to a detenu implies that the grounds must be furnished to him in a language which the detenu understands; and if that entails the translation of the grounds to such language, then that is part of the constitutional mandate. In fact, the Hon'ble Supreme Court goes further to say, that it is incumbent that even the documents 'reliedupon' in the grounds of detention must be supplied to the detenu, translated into a language the detenu understands.

(v) For completeness, where a detenu is illiterate, it has been held by the Hon'ble Supreme Court that the mandate of Article 22(5) would be served if the grounds of detention are explained to the detenu in a language that he understands, so as to enable him to avail the fundamental right of making a representation.

(vi) Merely because a detenu is able to sign or write a few words in English or any other language, does not mean that the detenu is conversant with the language', since the detenu may yet not be able to effectively understand the contents of the grounds of detention and the relied-upon documents, to be able to make an effective representation against the detention order.

(vii) Whether a detenu is conversant with a given language; or is merely feigning ignorance, or has sufficient working knowledge to understand the grounds of detention and the contents of documents relied upon, would depend upon the facts and circumstances of each case, which a court may reasonably ascertain.

(viii) It would always be the safer course to furnish translations of the grounds of detention and the documents relied upon in the language that a detenu understands.

The writ petition was filed by the mother of the detenu under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (CrPC) which sought a direction in the nature of habeas corpus for the production of her son and quashing of a detention order issued under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

The detune was apprehended from  IGI Airport for carrying contraband items and goods, along with three other persons A notice under section 102 of the Customs Act, 1962 was served upon him.

After serving the notice, the officers of the Department of Revenue, Ministry of Finance recorded his statement under section 108 of the Customs Act, which is stated to have been self-incriminating in nature.  The Ministry alleged that several other articles and goods, including drones and cameras, were recovered from the other persons apprehended along and that the total value of the goods seized and confiscated under sections 110 and 111 of the Customs Act was around Rs. 1,09,74,500/- . He preferred a bail application before the which was dismissed, and he was remanded to judicial custody along with other co-accused.

He was released on statutory bail because the investigating officer had failed to file the charge sheet within the prescribed period under section 167(2) CrPc. A detention order was issued and he was finally detained. The detention order along with the grounds of detention in the English language was served upon him. Thereafter, he made a written request for being provided a copy of the detention order along with the grounds of detention in either Hindi or Punjabi language since he asserted that he was unable to understand English copies of the same. His request/representation was rejected by the Advisory Board.

The main issue that arose before the bench was whether the issuance of the detention order issued in English was enough to satisfy the rigors of Article 22(5).

The petitioners contended that the impugned detention order violates Articles 21 and 22(5) of the Constitution of India, as it doesn't satisfy the requirements of the procedure established by law. They further contended that the impugned detention order is vitiated since  Article 22(5) of the Constitution requires the detaining authority to"communicate" the grounds of detention to a detenu, which the Supreme Court has clarified that such communication must be in a language known to the detenu, which was not done in the present case.

The respondents contended that Harmeet Singh is proficient enough in English to be able to understand the grounds of detention. They further argued that he traveled abroad on a regular basis so he must have more than a working knowledge of the English language since otherwise, he could not have traveled abroad.

"Merely because Harmeet Singh signed several documents in English and was able to string a few words into sentences, evidently on the urging of the concerned officers, is no basis to impute to him sufficient working knowledge of the English language," the Bench held.

Further, the Court observed, "All else apart, vidé his communication dated 24.06.2021, Harmeet Singh specifically requested that a translation of the grounds of detention be made available to him. Since he said, he was unable to understand English copies of the same. In view of such express request, we are unable to understand as to why the detaining authority did not furnish to Harmeet Singh the requested documents in a language that he understood."

The Bench upon the basis of the above-mentioned findings quashed the impugned detention order and noted -

"As a sequitur, detenu Harmeet Singh, son of the petitioner Ms.Jasvinder Kaur, is directed to be released from preventive detention forthwith, unless required in any other case."

The Bench further suggested the detaining authority to provide the detention order, along with the grounds of detention in all cases to the detenu in the language in which they request.

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