* Author
[2024] 1 S.C.R. 267 : 2024 INSC 18
Sarfaraz Alam
v.
Union of India & Ors.
(Criminal Appeal No. 45 of 2024)
04 January 2024
[M. M. Sundresh* and Aravind Kumar, JJ.]
Issue for Consideration
Validity of the detention order passed by the respondents; Detenue’s
right to make a representation, the communication regarding the
same if to be made both orally and in writing.
Headnotes
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 – Constitution of India – Article
22(5) – Detention order – Validity – Detenue’s right of making
a representation – Communication thereof if to be made both
orally and in writing – Appellant inter alia pleaded that the
detenue was not informed/communicated regarding his right
to make a representation against the detention order:
Held: The first part of Article 22(5) involves the bounden 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 – 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 – 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 – In a case where a
detenue is not in a position to understand the language, a mere
verbal explanation would not suffice – However, 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
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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 – In the present case, the
grounds of detention forming the basis of the satisfaction of the
detaining authority were made known to the detenue and were
attempted to be served at the earliest point of time i.e., on the very
next day after his detention – 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 and therefore was well aware of his right
to make a representation – The detenue is not entitled to any
relief as he not only suppressed the facts as proved in his refusal
to receive the grounds of detention, apart from reading them in
detail, but also approached the Court with unclean hands – 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 – No ground to interfere
with the impugned order passed by the High Court. [Paras 10-12,
14, 16 and 19]
Constitution of India – Article 22(5) – Duty and obligation on
the part of the authorities – Right of the detenue of making
the representation – Difference between the background facts
leading to detention order and the grounds of detention –
Discussed.
Case Law Cited
Lallubhai Jogibhai Patel v. Union of India, [1981] 2 SCR
352: (1981) 2 SCC 427; State of Bombay v. Atma Ram
Shridhar Vaidya, [1951] SCR 167: AIR 1951 SC 157;
Harikisan v. State of Maharashtra [1962] Suppl. SCR
918: AIR 1962 SC 911 – relied on.
State Legal Aid Committee, J&K v. State of J&K, [2004]
5 Suppl. SCR 1090: (2005) 9 SCC 667; Kamleshkumar
Ishwardas Patel v. Union of India [1995] 3 SCR 279:
(1995) 4 SCC 51; Thahira Haris v. Govt. of Karnataka
[2009] 5 SCR 941: (2009) 11 SCC 438 – referred to.
[2024] 1 S.C.R. 269
Sarfaraz Alam V. Union of India & Ors.
List of Acts
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974; Constitution of India.
List of Keywords
Detention order; Grounds of detention; Refusal to receive grounds
of detention; Communication of detenue’s right of making the
representation.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45 of
2024.
From the Judgment and Order dated 06.10.2023 of the High Court
at Calcutta in WPA(H) No.68 of 2023.
Appearances for Parties
P. Vishwanath Shetty, R. Basant, Sr. Advs., M/s. Ahmadi Law Offices,
Shariq Ahmed, Talha Abdul Rahman, Tariq Ahmed, Ismail Zabiulla,
Akshay Sahay, Vibhav Chaturvedi, Advs. for the Appellant.
K.M. Nataraj, A.S.G., Mukesh Kumar Maroria, Vanshaja Shukla, Rajat
Nair, Shailesh Madiyal, Vatsal Joshi, Anuj Srinivas Udupa, Padmesh
Mishra, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1. Leave granted.
2. 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.
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FACTUAL BACKGROUND
3. 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.
4. 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.
5. 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
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who had refused to receive the grounds of detention, a fact clearly
indicated and proved through the panchnama.
SUBMISSIONS OF THE APPELLANT
6. Learned senior counsel appearing for the appellant submitted that
it is incorrect to state that the detenue has refused to receive the
grounds of detention. In any case the detenue has not been informed
or communicated regarding his right to make a representation
against the detention order. Both functions are mutually reinforcing
as mandatory under Article 22(5) of the Constitution of India, 1950.
7. Not all the relevant materials have been served on the detenue, such
as the telephonic conversation between the detenue and others. The
grounds of detention could have been served on the family members
of the detenue even on the first occasion. There ought to have been
an affidavit on the refusal of the detenue pertaining to the grounds
of detention, by the official concerned. So also, on the question of
the contents having been read over to him and being read by him.
An order of detention being an exception, if two views are possible,
the one in favor of the detenue should find favor with the Court. To
reinforce the aforesaid submissions, learned senior counsel have
placed reliance on the following decisions of this Court,
● State Legal Aid Committee, J&K v. State of J&K, (2005) 9
SCC 667
● Kamleshkumar Ishwardas Patel v. Union of India, (1995)
4 SCC 51
● Thahira Haris v. Govt. of Karnataka, (2009) 11 SCC 438
SUBMISSIONS OF THE RESPONDENTS
8. Repelling the contentions of the appellant, the learned Additional
Solicitor General appearing for the respondents submitted that due
procedure has been followed and ample opportunities were provided.
The translated version of the grounds of detention along with the
relevant documents were attempted to be served upon the detenue
on the very next day after his detention in due compliance of Section
3 of the COFEPOSA Act. A panchnama was drawn in the presence of
two independent witnesses to cover the incident of detenu’s refusal
in accepting the ground of detention as per the extant principles
of law. The panchnama bears the signature of the detenue with a
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remark “I have refused to receive any document”, this sufficiently
indicates that twin test enshrined in Article 22(5) of the Constitution
of India was duly complied with. Even in the grounds of detention
there are adequate averments clearly indicating detenue’s right to
make representation to the named authorities. The contention raised
is only an afterthought and therefore the present appeal deserves
to be dismissed.
9. Despite refusal of the detenue on the first occasion in receiving the
grounds of detention, a second attempt was made on 03.10.2023,
and ultimately on 10.10.2023, the detenue received the ground of
detention with all the relevant documents. These chronological events
amply suggest the conduct of the detenue in evading to receive the
grounds of detention.
DISCUSSION
10. 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.
11. 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
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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.
12. 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.
13. 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.
14. 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.
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15. 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
“20….“Communicate” is a strong word. It means that
sufficient knowledge of the basic facts constituting
the “grounds” should be imparted effectively and
fully to the detenu in writing in a language which he
understands. The whole purpose of communicating
the “ground” to the detenu is to enable him to make
a purposeful and effective representation. If the
“grounds” are only verbally explained to the detenu
and nothing in writing is left with him, in a language
which he understands, then that purpose is not
served, and the constitutional mandate in Article 22(5)
is infringed. If any authority is needed on this point,
which is so obvious from Article 22(5), reference may be
made to the decisions of this Court in Harikisan v. State
of Maharashtra [1962 Supp 2 SCR 918 : AIR 1962 SC
911 : (1962) 1 Cri LJ 797] and Hadibandhu Das v. District
Magistrate [(1969) 1 SCR 227 : AIR 1969 SC 43 : 1969
Cri LJ 274].”
(emphasis supplied)
● State of Bombay v. Atma Ram Shridhar Vaidya, AIR 1951
SC 157
“10….The question has to be approached from another
point of view also. As mentioned above, the object of
furnishing grounds for the order of detention is to
enable the detenu to make a representation i.e. to
give him an opportunity to put forth his objections
against the order of detention. Moreover, “the earliest
opportunity” has to be given to him to do that. While
the grounds of detention are thus the main factors on
which the subjective decision of the Government is
based, other materials on which the conclusions in
the grounds are founded could and should equally
be conveyed to the detained person to enable him to
make out his objections against the order. To put it
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Sarfaraz Alam V. Union of India & Ors.
in other words, the detaining authority has made its
decision and passed its order. The detained person is
then given an opportunity to urge his objections which in
cases of preventive detention comes always at a later
stage. The grounds may have been considered sufficient
by the Government to pass its judgment. But to enable
the detained person to make his representation against
the order, further details may be furnished to him. In
our opinion, this appears to be the true measure of
the procedural rights of the detained person under
Art. 22(5).
××× ××× ×××
12…The conferment of the right to make a representation
necessarily carries with it the obligation on the part
of the detaining authority to furnish the grounds i.e.,
materials on which the detention order was made. In
our opinion, it is therefore clear that while there is
a connection between the obligation on the part of
the detaining authority to furnish grounds and the
right given to the detained person to have an earliest
opportunity to make the representation, the test to be
applied in respect of the contents of the grounds for
the two purposes is quite different. As already pointed
out, for the first, the test is whether it is sufficient
to satisfy the authority. For the second, the test is,
whether it is sufficient to enable the detained person
to make the representation at the earliest opportunity.
13. The argument advanced on behalf of the respondent
mixes up the two rights given under Art. 22(5) and converts
it into one indivisible right. We are unable to read Art. 22(5)
in that way. As pointed out above, the two rights are
connected by the word “and”. Furthermore, the use
of the words “as soon as may be” with the obligation
to furnish the grounds of the order of detention,
and the fixing of another time limit, viz., the earliest
opportunity, for making the representation, makes the
two rights distinct. The second right, as it is a right
of objection, has to depend first on the service of the
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grounds on which the conclusion i.e. satisfaction of
the Government about the necessity of making the
order, is based. To that extent and that extent alone,
the two are connected. But when grounds which have
a rational connection with the ends mentioned in S. 3
of the Act are supplied, the first condition is satisfied.
If the grounds are not sufficient to enable the detenu
to make a representation, the detenu can rely on his
second right and if he likes may ask for particulars
which will enable him to make the representation.
On an infringement of either of these two rights the
detained person has a right to approach the Court and
complain that there has been an infringement of his
fundamental right and even if the infringement of the
second part of the right under Art. 22(5) is established
he is bound to be released by the Court. To treat the
two rights mentioned in Art. 22(5) as one is neither proper
according to the language used, nor according to the
purpose for which the rights are given.
××× ××× ×××
16. This detailed examination shows that preventive
detention is not by itself considered an infringement of
any of the fundamental rights mentioned in Part III of the
Constitution. This is, of course, subject to the limitations
prescribed in clause (5) of Art. 22. That clause, as noticed
above, requires two things to be done for the person
against whom the order is made. By reason of the fact
that cl. (5) forms part of Part III of the Constitution, its
provisions have the same force and sanctity as any
other provision relating to fundamental rights. As the
clause prescribes two requirements, the time factor in
each case is necessarily left fluid. While there is the
duty on the part of the detaining authority to furnish
grounds and the duty to give the detained person the
earliest opportunity to make a representation which
obligations, as shown above, are correlated, there
exists no express provision contemplating a second
communication from the detaining authority to the
person detained. This is because in several cases a
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second communication may not be necessary at all.
The only thing which emerges from the discussion is
that while the authorities must discharge the duty in
furnishing grounds for the order of detention “as soon
as may be” and also provide “the earliest opportunity
to the detained person to make the representation”,
the number of communications from the detaining
authority to the detenu may be one or more and they
may be made at intervals, provided the two parts of the
aforesaid duty are discharged in accordance with the
wording of cl. (5). So long as the later communications
do not make out a new ground, their contents are
no infringement of the two procedural rights of the
detenu mentioned in the clause. They may consist of
a narration of facts or particulars relating to the grounds
already supplied. But in doing so, the time factor in respect
of the second duty, viz., to give the detained person the
earliest opportunity to make a representation, cannot be
overlooked. That appears to us to be the result of cl. (5)
of Art. 22.”
(emphasis supplied)
● Harikisan v. State of Maharashtra, AIR 1962 SC 911
“7. It has not been found by the High Court that the
appellant knew enough English to understand the grounds
of his detention. The High Court has only stated that “he has
studied up to 7th Hindi standard, which is equivalent to 3rd
English standard”. The High Court negatived the contention
raised on behalf of the appellant not on the ground that
the appellant knew enough English, to understand the
case against him, but on the ground, as already indicated,
that the service upon him of the Order and grounds of
detention in English was enough communication to him
to enable him to make his representation. We must,
therefore, proceed on the assumption that the appellant
did not know enough English to understand the grounds,
contained in many paragraphs as indicated above in order
to be able effectively to make his representation against
the Order of Detention. The learned Attorney-General
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has tried to answer this contention in several ways.
He has first contended that when the Constitution
speaks of communicating the grounds of detention
to the detenue, it means communication in the official
language, which continues to be English; secondly,
the communication need not be in writing and the
translation and explanation in Hindi offered by the
Inspector of Police, while serving the order of detention
and the grounds, would be enough compliance with
the requirements of the law and the Constitution; and
thirdly, that it was not necessary in the circumstances
of the case to supply the grounds in Hindi. In our
opinion, this was not sufficient compliance in this
case with the requirements of the Constitution, as
laid down in cl. (5) of Art. 22. To a person, who is not
conversant with the English language, service of the
Order and the grounds of detention in English, with
their oral translation or explanation by the police officer
serving them does not fulfil the requirements of the
law. As has been explained by this Court in the case
of The State of Bombay v. Atma Ram Sridhar, 1951
SCR 167 : (AIR 1951 SC 157), cl. (5) of Art. 22 requires
that the grounds of his detention should be made
available to the detenue as soon as may be, and that
the earliest opportunity of making a representation
against the Order should also be afforded to him. In
order that the detenue should have that opportunity, it
is not sufficient that he has been physically delivered
the means of knowledge with which to make his
representation. In order that the detenue should be in a
position effectively to make his representation against
the Order, he should have knowledge of the grounds
of detention, which are in the nature of the charge
against him setting out the kinds of prejudicial acts
which the authorities attribute to him. Communication,
in this context, must therefore, mean imparting to the
detenue sufficient knowledge of all the grounds on
which the Order of Detention is based. In this case
the grounds are several & are based on numerous
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speeches said to have been made by the appellant
himself on different occasions and different dates.
Naturally, therefore, any oral translation or explanation
given by the police officer serving those on the detenue
would not amount to communicating the grounds.
Communication, in this context, must mean bringing
home to the detenue effective knowledge of the facts
and circumstances on which the Order of Detention
is based.”
(emphasis supplied)
16. 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.
17. 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.
18. 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.
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19. 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.
Headnotes prepared by: Divya Pandey Result of the case: Appeal
dismissed.
