JUDGMENT [ENTITY], J.
1. The present petition is filed by the petitioner, [ENTITY], who is an Indonesian National, for a writ of Habeas Corpus or any other appropriate writ, direction or order quashing and setting aside the impugned order of detention at Annexure 'A' to the petition and further for the order directing that the petitioner be released from detention forthwith and set at liberty.
2. The order of detention which is at Annexure "A" to the petition is passed by the Joint Secretary to the Government of India on June 7, 1991.
3. On perusal of the said grounds, the facts revealed, for passing of the detention order, can be stated as under:
On getting specific information that a Singapore registered merchant vessel M.V. "Pacific Gembira" carrying wooden logs for Kandla, has on board a very large quantity of silver and other contraband goods which will be discharged by it before reaching Kandla, the officers of DRI/BZU requested Coast Guard Ship [ENTITY] to intercept the said vessel M.V. "Pacific Gembira" between Porbander and Okha. Accordingly, the Coast Guard vessel [ENTITY] intercepted Pacific Gembira between Porbander and Okha on 19-5-1991 and brought the said vessel to the Kandla Port on 20-5-1991. The officers of DRI boarded the said vessel on 21-5-1991 and kept continuous guard thereon. There were in all 20 crew members on board M.V. "Pacific Gembira", including the present petitioner-[ENTITY]. The officers rummaged the said vessel and waited for the complete removal of the wooden logs from the deck and the cargo hold of the said vessel. On 29-5-1991, after removal of the wooden logs from cargo hold No. 1, the officers opened the manhole cover of the water ballast tank No. 2 on the starboard side of the cargo hold No. 1 of the said vessel and recovered 482 silver bars weighing 483.670 kgs., 9.5 kgs. of silver granules and 281 silver ingots weighing 9045.546 kgs. Thus, the officers recovered and seized under panchanama and under the [ACT] the abovesaid silver collectively weighing 9538.716 kgs. valued at Rs. 6,67,71,012/-in the reasonable belief that the same were smuggled into India and hence are liable for confiscation under the [ACT]. 30 VCRs valued at Rs. 4.5 lacs were also recovered from the vessel and were seized under another panchanama under the reasonable belief that they are smuggled into India and liable to confiscation under the [ACT]. They also seized vessel M.V. "Pacific Gembira" valued at Rs. 1,02,35,000 under the [ACT].
4. The present petitioner was a Chief Cook and member of the crew in the said vessel. The statement under [SECTION] of the [ACT] of Master of the vessel, [ENTITY] was recorded on 31-5-1991. When he was asked about the silver, he stated that during the halt at Singapore somewhere on 4th or 5th of May, 1991, the present petitioner and the Chief Engineer Mr. [ENTITY] told him that some party at Singapore wanted to talk to him regarding some cargo. The petitioner told him that they would have to go out, on shore to Singapore. In the evening on the same day at about 5.00 p.m., he along with the petitioner and the Chief Engineer went to the shore of Singapore. Both of them took him to Eunos Railway Station where the petitioner and the Chief Engineer introduced him to two persons who appeared to be Indians and from there the petitioner and others went to the restaurant. There, these two Indian persons put a proposal to the petitioner and two others to carry silver without declaring in the manifest, to India. He refused to carry this cargo and told that this was illegal. The Chief Engineer, however, told him to keep quiet and not to interfere in the negotiation. Then, the petitioner and the Chief Engineer agreed with those two Indian persons and those Indian persons offered 30000 U.S. Dollars for carrying about 10 M.T. of silver to India without declaring in the manifest, whereas the petitioner and the Chief Engineer asked for 60,000 U.S. Dollars for the task. The negotiations failed and they all came back to the ship in the night. Thereafter, on 9th May, 1991, the petitioner and the Chief Engineer came to his cabin on the ship and told him that they had already settled the deal for transporting about 10 MTs. of silver to India and that the silver has already been concealed in the ship, and the petitioner also told him that after delivery of the silver, he (the Master of the vessel) will be given 5000 U.S. Dollars. He felt helplessness and remained quiet. After interception of the ship by Coast Guard, took about 45 minutes for the Coast Guard to board the ship. At that time, the petitioner and the Chief Engineer told him that he should not worry and that it was only a routine check. He told them that it appeared to be a serious situation. He was told that he should not worry as the Coast Guard could not take out the silver as it was concealed in the ship properly. He did not tell the Coast Guard and the Customs Officers about concealment of silver in the ship as he was afraid of the threat to his life and to the members of his family.
5. Similarly, the statement of the present petitioner was also recorded. The present petitioner along with the Chief Engineer, Master of the Ship and Firmanto-Bosum were arrested on 1-6-1991.
6. It is also pointed out in the grounds that the Detaining Authority was aware that they were then in judicial custody and that there is every possibility of their applying for bail and getting enlarged on bail and that once they are enlarged on bail, keeping in view their role as mentioned in the grounds, the Detaining Authority was satisfied that they were likely to continue their prejudicial activities and accordingly, in view of the material placed before the Detaining Authority, he came to the conclusion without any hesitation that they have smuggled the goods, and unless prevented, they were likely to indulge in such activities in future, as is evident from their present activities. Although departmental proceedings and prosecution proceedings are likely to be initiated against them, he was satisfied that it was necessary to detain them under [ACT] (as amended) with a view to preventing them from smuggling goods in future.
7. In this petition, several points have been raised challenging the detention order as well as the continued detention of the petitioner. However, Mr. [ENTITY] has pressed only one point before us. The said point is raised by him in ground No. (ii) of the petition. According to the petitioner, he has studied up to 3rd Standard in Indonesian language, as borne out from his statement. Further, it is pointed out that in his statement he has stated that he has made all depositions voluntarily without any force in the language best known to him, i.e. Indonesian language. The Customs Officer who recorded the statements, has got all the depositions translated immediately with the help of Interpreter, namely, Mr. [ENTITY], who in turn explained all the depositions made by the petitioner before the Customs Officer after translating them into English language. He further pointed out that he has been served with the statement which is in English and he is unable to understand the grounds and the documents supplied to him in English and therefore the said grounds and the documents should have been supplied to him in the language known to him, i.e. in the Indonesian language. It is also pointed out that the Customs Officer recorded the statement and the Interpreter Mr. [ENTITY] explained to him in his language and endorsement to that effect has been made at the end of the said statement on the left hand side margin. He submitted that this clearly discloses that the petitioner did not have working knowledge of English language to understand the grounds of detention and the contents of the documents.
8. Mr. [ENTITY], learned Senior Standing Counsel, appearing for the respondents Nos. 1 and 2, submitted that in this case the petitioner himself in his statement has stated that he has working knowledge of English language and therefore it is not necessary to supply to him the copies of his statement, grounds of detention and other documents in his (Indonesian) language.
9. In this case, affidavit-in-reply, is also filed on behalf of respondents Nos. 21, 1 and 2 and in para 10 thereof, what the petitioner has stated in his statement is reproduced. It runs as under:
xx xx I have studied up to 3rd Standard in Indonesia. I understand English and Indonesian language and 1 can read workable English and can write very slow and little and therefore, have requested your officer to write on behalf of me.
On the basis of the above statement, it is submitted on behalf of the respondents that the petitioner had knowledge of English language and he can read English and therefore the order of detention is not vitiated and therefore it is submitted that the supply of the grounds and the documents in English language is sufficient compliance with the requirement of law inasmuch as in view of the statement of the petitioner that he has workable knowledge of English, he cannot raise such a contention. Therefore, it is denied that the order of detention is null and void and mala fide or violative of [SECTION] of the [ACT].
10. Mr. [ENTITY], the learned Advocate for the petitioner, has on this point relied on two judgments of the Supreme Court (1) [PRECEDENT], and (2) [PRECEDENT], . In [PRECEDENT]'s case (supra), a contention was raised that the translations were not supplied to the [ENTITY] in Urdu language and that he was not knowing English, Hindi or Gujarati languages, and in answer to the said contention, it was explained that the petitioner had a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati. In this context, the Supreme Court observed that the petitioner is a Pakistani national and Urdu seems to be his mother-tongue and a little knowledge of English figures, ability to read English words written in Capital letters and a smattering knowledge of Hindi or Gujarati would not justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at the subjective satisfaction. It was held therein that: "All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by the [ENTITY], and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in [SECTION] is clearly violated".
11. In [PRECEDENT]'s case (supra), detention was upheld, but the Supreme Court has held as under at page 801 (of Cri EJ):
We are of the view that it would be open for the Court to consider the facts and the circumstances of a case to reasonably ascertain whether the [ENTITY] is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished.
In the said case before the Supreme Court, the petitioner-[ENTITY] was putting his signature in English. He did not complain that the grounds of detention were not understood by him. On the other hand, it was stated that in course of interrogation, he answered the questions in English including the questions as to how he happened to learn English. The gist of his answers in this regard was also given in the grounds of detention and in the statements information was also furnished peculiar to [ENTITY] himself and ultimately on the material on the record, it was held that he did know English. In the context of the facts of that case, it was also observed by the Supreme Court as under at page 802 (of Cri LJ):
A working knowledge of English enabling him to understand the grounds would be enough for making a representation. He could very well send his representation in the language known by him.
12. Now, in the present case, it is true that the petitioner himself in his own statement has, inter alia, stated that he is an Indonesian National holding Passport No. O-403317. He has studied up to 3rd Standard in Indonesia. He understands English and Indonesian languages and he can read workable English and can write very slow and little and therefore had requested the officer to write on his behalf. However, it is also stated in the concluding paragraph of his statement, which was recorded on 30-5-1991 as under:
I have made these depositions voluntarily without any force in the language best known to me, i.e. Indonesian to the Customs Officer through my fellow crew member Mr. [ENTITY] who in turn explained the same in English to the Customs Officer.
It is further to be noted that on the left hand side margin of the said statement on the last page, there is endorsement made by one [ENTITY], Customs Officer, to the effect that it was written by him. Further, there is also endorsement made by one [ENTITY] to the effect: "Read the above and I agree with the same as Mr. [ENTITY] is an Indonesian. I have also read the above to Mr. [ENTITY] in his language."
13. From this endorsement as well as the last part of the statement made by the petitioner, it is clear that he did not know English language that he can give answers to the questions put to him in English language. Therefore, the question put by the Customs Officer was explained by Mr. [ENTITY] to the petitioner. When the petitioner replied in Indonesian language, again Mr. [ENTITY] translated it into English language and Mr. [ENTITY] recorded the same in English language. In this manner, the whole statement of the petitioner is recorded. This would clearly indicate that the petitioner had no command over the English language by which he can understand the questions put to him in English language and he can give answers in English language. It is equally important to note from the endorsement made by Mr. [ENTITY] that after the statement was recorded, it was read over to him, translating the same in the Indonesian language, i.e. in petitioner's own language. If at all petitioner could have read the statement in English that endorsement from Mr. [ENTITY] would not have been necessary. In view of the said statement made to the effect that he has workable knowledge of the English language, the question is whether he is in a position to understand the grounds and contents of the documents supplied to him in English language. When he is unable to read his own statement in English language, it cannot be held that he had sufficient knowledge of English language by which he could read the grounds and the contents of the documents supplied to him in English language.
14. Mr. [ENTITY], in support of his submission, has pointed out that in the letter addressed to the Chairman and other Members of the Central [ACT] Advisory Board, dated 13th July, 1991, Annexure "D" to the petition, the petitioner has stated that according to his own statement, he has clearly stated that he does not know English, but he knows Indonesian language and therefore the endorsements are made in the statement that Mr. [ENTITY] had explained to him whole of the statement in Indonesian language, who in turn explained and stated in English before the officers and contents of that letter making representation were also explained in Indonesian language to him through [ENTITY]. He submits that petitioner must be knowing English language and therefore he has so stated and he is not telling the truth before the Court, though it was specifically stated that he has workable knowledge of English language and that he is feigning ignorance of English language. This submission does not appear to be correct in view of the fact that there is endorsement in the said letter. It is to the effect that contents of the said letter had been explained to him in Indonesian language through [ENTITY]. The fact that this letter was also required to be explained to him in Indonesian language indicates that petitioner was not properly knowing English language by which he could read the small letter, i.e. representation written to the Advisory Board. If at all he was knowing it, that endorsement was not necessary. In that view of the matter, the contention that the petitioner is feigning ignorance of English language does not appear to be correct. It may be that he might be knowing little English, but that would not be sufficient for him to understand the grounds of detention as well as the contents of the documents supplied to him, and therefore also this document does not help the respondents to establish that the petitioner had working knowledge of English language by which he could have understood the grounds of detention and the contents of the documents supplied to him. In that view of the matter, the fact remains that though the grounds were supplied, still, however, those grounds were not "communicated" to him. The word "communication" has been the subject-matter of interpretation before the Supreme Court in number of matters and the last in line is [ENTITY]'s case, , wherein it is held as under at page 293 (of Cri LJ) :
But that is not a sufficient compliance with the mandate of [SECTION] of the [ACT], which requires that the grounds of detention must be "communicated" to the [ENTITY]. "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 [ENTITY] in writing in a language which he understands. The whole purpose of communicating the 'ground' to the [ENTITY] is to enable him to make a purposeful and effective representation. If 'grounds' are only verbally explained to the [ENTITY] 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 [SECTION] is infringed
In that view of the matter, in this case also, the mandate of [SECTION] of the [ACT] is violated, inasmuch as the translations of the grounds as well as the documents supplied to him were not given to the petitioner in the language known to him, i.e. Indonesian language. In that view of the matter, the continued detention of the petitioner in pursuance of the detention order would be bad and illegal.
15. It may be stated that in the grounds of detention, it is clearly stated that the petitioner is in judicial custody and is likely to make the bail application at any time. It is pointed out in the petition in ground (i) that the petitioner has never preferred any bail application before any Court and on that basis it is submitted in the petition itself that there is no possibility of his being released on bail. In view of the aforesaid apprehension, Mr. [ENTITY] submits that if the continued detention of the petitioner is held to be illegal and if he is released on bail, he being a foreign national, he is likely to run away and in that view of the matter, Mr. [ENTITY], the learned Advocate for the petitioner, has voluntarily made the statement under instructions from his client that the petitioner would never make an application for bail during the pendency of the trial, till the criminal case filed against him under the [ACT] as well as the adjudication proceedings against him are over. When this specific statement is made, it would not be necessary to pass the order of releasing the petitioner forthwith. But the petitioner will be required to be kept in judicial custody and he will not be treated as the [ENTITY] under [ACT]. As a result of this order, he will cease to be the [ACT] [ENTITY]. Accordingly, we hold that the continued detention of the petitioner, in view of the violation of mandate under [SECTION] of the [ACT], is illegal and unconstitutional and petitioner ceases to be a [ENTITY] under the [ACT] and he may be transferred to judicial custody at the requisite place, as and when necessary.
16. Accordingly, to the aforesaid extent only, rule is made absolute.