1 CWP 1838.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1838 OF 2010 Abdual Rafi Shabhandari Aged years, An Indian Inhabitant, R/o.Shabhandari House, 9 Siddique Street, Bhatkal, Karwar, Karnataka. .. Petitioner (brother of the detenue) Tanveer Ahmed Shabhandri At present in Nashik Central Prison. .. detenue. (In Jail) .. Versus .. 1. State of Maharashtra, through Secretary to the Government of Maharashta, Home Department(Special), Mantralaya, Mumbai-32, 2. Anna Dani, the Principal Secretary to the Government of Maharashtra, Home (Preventive Detention) Mantralaya, Mumbai-32. 3. The Superintendent of Prison, Nasik Road Central Prison, Nasik Road, Maharashtra. .. Respondents Mrs.A.M.Z. Ansari a/w Nasreen Ayubi, Advocate for the Petitioner, Mr. D.P.Adsule, Additional Public Prosecutor for the Respondents. …..... 2 CWP 1838.2010 CORAM : A.M. KHANWILKAR AND P.D. KODE, JJ. Date of reserving the judgment : 22.10.2010 Date of pronouncing the judgment : 26.10.2010 JUDGMENT : (PER : P.D.Kode, J.) 1. The petitioner is brother of the detenue and claims to be interested in the life, welfare and personal liberty of the detenue. He has challenged the order of detention No.PSA-1209/CR-29/SPL-3(A) dated 2nd April, 2009, passed by the respondent no.2 in exercise of powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(52 of 1974)(hereinafter for short referred as “COFEPOSA Act”), ordering the detention of his brother i.e. detenue Tanveer and prayed for issuing a writ quashing and setting aside the same and directing that detenue be set at liberty, on the several grounds as set out in the petition. The prayer is opposed by the respondents by refuting the contentions taken by the petitioner vide affidavits-in-reply of respondent no.2 filed and affidavit of sponsoring authority. 2. The facts relevant to the said order of detention challenged are as under: It was brought to notice of detaining authority that on 1st December, 2008 Officers of Air Intelligence Unit noticed detenue while his clearance through customs moving briskly and suspiciously in the Arrival hall of Module-2C, C.S.I. Airport, Mumbai with two pieces of checked in baggages and two pieces of hand baggages avoiding putting of baggages in screening 3 CWP 1838.2010 machine placed in the green channel. He was stopped at exit gate. Scrutiny of his passport revealed his address as house no.71, Durganiwas, 4th Cross Okkipuram, Banglore, Karnataka. Upon query regarding contents of baggages, he replied of carrying household goods and some watches. Not satisfied by the said answer, he was asked to open the shoulder bag. Upon opening the same was found containing large quantity of wrist watches. The other three baggages upon lifting were found to be exceptionally heavy. The detenue on questioning confirmed that all the said three baggages were containing wrist watches. Since examination of the same was not possible in baggage hall the detenue was escorted alongwith baggages to the A.I.U. Office departure 2C of C.S.I. Airport Mumbai for detailed examination, with panchas accompaning him. The examination effected in presence of panchas resulted in the recovery of 1496 pieces of assorted wrist watches of Titan brand, which were provisionally valued at Rs.14,96,000/- and were seized under panchanama. The detenue in his statement recorded on the same day under section 108 of the Customs Act admitted possession, carriage, non-declaration, recovery and seizure of 1496 wrist watches from his baggages. He stated of holding Dubai residence visa and residing at Dubai while his wife, children and parents staying at native address at 9, Shabandan House, Siddique Street, Bhatkal, Karnataka. He stated of working at Alghasa Perfumes as purchase supervisor in Dubai since 1992 and earning monthly salary of UAE Dirham 4000/- and having studied up to 7th Standard in Urdu medium. He admitted that the wrist watches were given to him by Mr. Khali- businessman in Dubai for handing over to his contact man, Mr. Salauddin in Mumbai and had met Mr. Salauddin once in Dubai, who had then told that he was staying at Mohammed 4 CWP 1838.2010 Ali Road area. He was not knowing exact address of Salauddin. The detenue had undertaken the job for monetary consideration of Rs.10,000/- and one way air ticket from Dubai to Mumbai and had not opted red counter to avoid declaration of wrist watches and payment of the custom duty. The detenue was arrested on 2/12/2008 and granted bail on 9/12/2008 and had availed the same on 20/12/2008. Senior Manager, Titan Industries Limited vide letter dated 12/12/2008 informed that the seized watches are genuine Titan watches and also submitted the Uniform Consumer Price/MRP for the wrist watches. The total value of the 1496 wrist watches was given as Rs.32,42,325/-(Local Market Value). Out of the 7 visits of detenue during the year 2008, 2 visits were only for two days. The detenue on 2/12/2008 filed first retraction statement. The rebuttal to the said retraction statement was filed on 22/1/2009. The further retraction statement was filed by the detenue before the ACCM, Mumbai on 24/1/2009. The detenue had thus attempted to smuggle the dutiable goods without payment of duty, which indicates that there is propensity of repetition of the offences. His smuggling activities were falling under section 111(l) & (m) of Customs Act 1962. 3. Upon considering such material brought to the notice by Sponsoring Authority, vide proposal sent and after verifying the same and the further material called, the Detaining Authority arrived at subjective satisfaction that it was necessary to pass the order of detention for preventing detenue from smuggling goods in future and hence passed the impugned order of detention on 2nd April 2009 and on the same day issued communication bearing No.PSA-1209/CR-29/SPL-3(A) dated 2/4/2009 containing the grounds of 5 CWP 1838.2010 detention. On 21/04/2010 an application of surrender was filed by detenue before learned ACCM, Mumbai and he surrendered on the same day. On 30/04/2010 the advocate for detenue wrote a letter to Sponsoring Authority, Assistant Commissioner of Customs, AIU Mumbai informing about the surrender of detenue with a request to serve impugned order of detention. Again on 4/05/2010 a letter was written by advocate of detenue to the COFEPOSA cell for serving the Order of Detention. Again on 6/05/2010 his advocate wrote a letter to Detaining Authority annexing copies of letter dated 30/04/2010 and 4/05/2010 with a request to serve Order of Detention. 4. Though the petitioner has taken many grounds in the petition in support of his prayer of quashing and setting aside the order of detention and continued detention, at the hearing the submissions were mainly centered only upon the grounds, which are dealt with one by one hereinafter along with the submissions advanced by both the parties regarding the same. Such a course is adopted for the sake of brevity and to avoid reproduction of the same matters again and again. Needless to add that though learned counsel for the petitioner had attempted to advance submissions regarding some other grounds, has ultimately left the same in deference to the legal position regarding relevant aspects pointed out by the Court. In short, it is the thrust of submission of the learned counsel for the petitioner that due to the reasons canvassed by her, the order of detention is illegal, untenable and liable to be quashed and set aside with direction to set the detenue at liberty. 6 CWP 1838.2010 5. The learned counsel for the Petitioner firstly urged that the detenue is born in Bhatkal, Karwar, Karnataka State and has studied up to 7th standard in Urdu medium at Bhatkal where medium of instruction was Urdu. That the detenue is not having workable knowledge of English as claimed by the respondents vide their reply. Inspite of that no translation in Urdu of impugned order of detention and grounds of detention were furnished to the him. She drew our attention to the transfer certificate Annexure-D of the school in which the detenue had studied. She urged that the fact that the detenue cannot speak and understand English and had requested the officer recording his said statement to write the statement on his behalf is clearly spelt out from his statement recorded on 2/12/2008. She urged that hence the said statement contained the endorsement at the foot of being read over and explained to detenue in simple Hindi, which he has understood 6 In the same context, she further urged that on the same backdrop the stand of respondent no.2 in paragraph no.3 in affidavit in reply on basis of endorsement made in the statement dated 10/02/2009 that he can read and understand English but finds difficulty in writing English properly and hence he requested the officer to write his statement in English as per his say and the further endorsement for supporting the same “this confiscation I am giving in my own handwriting” clearly shows that the detenue is very well conversant in English, is nothing but for depriving him his right to file proper effective representation at the earliest by supplying him grounds of detention and the material in a language with which he is conversant. 7 CWP 1838.2010 7 In the same context the learned counsel placed reliance upon the decision of this court in the case of Shahnawaz Siraj Shaikh V/S State Of Maharashtra in Criminal Writ Petition No.446 Of 2009 decided on 24th July 2009 and urged that in analogous situation this court has come to the conclusion that such a subsequent endorsement made in the other statement recorded just after 12 days indicates that detenue was dictated such an endorsement and he had signed it. She urged that in the said case this court has come to the conclusion that detenue had working knowledge of English where he could sign or he could copy or even write when dictated, but he did not have sufficient knowledge of English by which he could understand the documents which were supplied to him and perhaps on the basis of such understanding he could not make representation within Article 22 of the Constitution Of India and as such his valuable right was defeated. She urged that in the said case due to said reason this court was pleased to quash and set aside the Order of Detention. She thus urged that it is difficult to digest that detenue who was explained his first statement in Hindi by person recording the same started understanding material furnished in English soon thereafter. She urged that detenue had copied down endorsement supplied to him by the Investigating Officer below his further statement dated 10/2/2009. The said writing also reveals that the detenue is not knowing English. The detenue being supplied impugned order and grounds for detention in English he was unable to make effective representation against the order impugned at the earliest. Thus, the impugned order suffers from vice of non-communication and is per se malafide. She urged that on the same analogy of the reasons in the decision relied it will be necessary to come to the conclusion that detenue in the present case also had no sufficient knowledge of 8 CWP 1838.2010 English to understand the material supplied to him in such a language and as such the same had deprived him to make effective representation by understanding material supplied. 8. Now before examining the submission canvassed by learned counsel for the petitioner in light of the counter submissions made by learned APP it will be necessary to examine the decision in the case of Shahnawaz Siraj Shaikh(supra) upon which reliance was placed. The perusal of the said decision and so also other decisions relied and referred therein upon the relevant aspect reveals that the same are based upon the law pronounced by the Apex Court in the case of Harikisan v/s State Of Maharashtra & Others reported in AIR 1962 Supreme Court at pg 911 which still holds the field upon the aspect of non furnishing of grounds and the material in the language to which the detenue is well conversant. The reference to the relevant Paragraphs No 7 & 8 of the said decision and the relevant matters from the same runs as under. “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 upto 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 to effectively to make his representation against the Order of Detention............................................. 9 CWP 1838.2010 9 The aforesaid observations are self eloquent to indicate that it will be necessary to determine whether the detenue had sufficient knowledge to understand the language in which the grounds of detention and the material was supplied to him to avail the opportunity provided to him under the provisions of the constitution to make the representation against the order of detention. In the decision relied and so also the decision of the Apex Court relied in the same clearly reveals that the Order of Detention in both the cases were quashed in view of such a material being not supplied to him in a language of which he had sufficient knowledge to understand the said material for making the representation against the Order of Detention passed. Hence it will be necessary for us to determine whether in the case under consideration the detenue is having enough knowledge of the language in which the material was supplied to him i.e. of English. The same being question of fact, it will be required to be examined on the basis of all the aspects relevant to the same and not merely on the basis of similarity of the endorsement upon the statements in the case under consideration and the case relied. 10. Now examining the submission canvassed from the aforesaid angle merely because the first statement of the detenue recorded on 2/12/2008, i.e. on the day on which he was for first time intercepted and arrested, is containing the endorsements as pointed out by the learned counsel for the petitioner, by itself, would not be ipso facto sufficient factor for accepting the submission that he was not knowing enough English as canvassed. For, the investigating officer who had come across the detenue for first time on the said day was bound to accept and act upon the matters told to him by the detenue that “ I cannot speak 10 CWP 1838.2010 and understand English”. Having regard to the same such an endorsement made by the investigating officer at the commencement of the statement or the further endorsement made at the foot of statement after recording the same of explaining the same in Hindi to the detenue by itself cannot be regarded as a proof of a fact of detenue not knowing enough English. As a matter of fact the same is indicative of the investigating officer having believed the word of detenue and having acted upon the same and due to the same having explained the statement recorded to him in Hindi. Needless to add that as observed earlier such acts of investigating officer cannot be said to be a proof of detenue not knowing English. 11. Be that as may be, now the reference to the second statement of the detenue recorded on 10th February 2009 contains clear cut recital as pointed out by learned APP, “I can read and understand English but find difficulty in writing English properly therefore I request the officers to write my statement in English as per my say.” Similarly, pg 4 of the said statement also contains the endorsement in the handwriting of the detenue, to the effect “I shall produce purchased bill and my bank account details. I have read my above statement from pg no 1 to 4which I understood and confirm as correctly written as per my say. I have given the above statements voluntarily without any force, threat or coercion. This confirmation,I am giving in my own handwriting. (Sd Tanveer 10/02/2009)” (Tanveer Ahmed Shabandri) 11 CWP 1838.2010 12. Now examining the aforesaid endorsement and the date on which the same was made and the material therein, it is difficult to countenance the submission of the learned counsel for the petitioner that the ratio in the decision of Shahnawaz Siraj Shaikh is attracted. Whereas, considering the matters pointed out in Paragraph No 3 of affidavit in reply filed by Respondent No 2, the plea taken by the Petitioner of lack of knowledge of enough English is untenable. Needless to add that the learned counsel for the petitioner has failed to point out any positive assertion made in the petition that the said statement was written at the say or behest or under pressure of the Investigating Officer or that the contents were provided by investigating officer (i.e. about the event which had admittedly occurred in between detenue and the investigating officer who had recorded his said statement). Furthermore, even inspite of the positive assertion made by the Detaining Authority in Paragraph No 3 of the written the petitioner has failed to counter the same by filing any rejoinder. 13. In the same context even considering the School Transfer Certificate Annexure D, the same reveals the position as pointed by learned APP that the detenue had studied the languages Urdu,English and Kannada as recorded in Column No 14 thereof and so also having left the school in April 1987. Considering the above aspects in proper perceptive, it militates against the plea of the detenue that he was not knowing enough English. On the contrary, the same substantiates that the detenue has enough knowledge of English. Furthermore, even reference to the passport pointed out by APP, it reveals that the detenue has signed in English. Besides, it is noticed that the detenue was a frequent flier. Similarly considering the representation dated 28/06/2010 made 12 CWP 1838.2010 by the petitioner to which our attention was invited by learned APP also reveals the same being in English and devoid of any endorsement of the same being read over and explained to him. Similarly the letter dated 30/12/2008 written to the superintendent of customs and the letter dated 24/12/2009 pointed out by learned APP clearly supports his submission of the same being in English and without any endorsement of being sent after explaining the same to the detenue. These circumstances militate against the stand now taken of detenue not knowing enough English. 14. The learned APP has also placed reliance upon the decision of this court in the case of Amar alias Amarsingh Gulabsingh Rathod v/s State of Maharshtra reported in 2003 ALL MR (Cri) 1671 for canvassing that once the representation is made through the counsel grievance of detenue that documents were not explained to him in his language does not survive. He has justly relied on the decision in the case of Mustafa Ahmed Dossa v/s The Joint Secretary,GOI & Ors reported in 2005 ALL MR (Cri) 1201 for contending that after detaining authority has pointed out vide affidavit in reply that representation was made by the detenue in English in absence of rejoinder of the detenue denying the assertion regarding the knowledge of English and Hindi languages there cannot be any substance in the ground of challenge that he was conversant only with Urdu language. We do not deem it necessary to make any more threadbare dilation about both the said aspects. As observed earlier, the question whether detenue has no enough knowledge of English or otherwise is a question of fact. After taking into consideration all the relevant aspects pointed out by both the sides we are of the considered opinion that the 13 CWP 1838.2010 petitioner has failed to establish that the detenue had only workable knowledge of English and was not having sufficient knowledge of the same to understand the grounds and materials furnished to him in English to make representation as provided in accordance with the law. Needless to add that the matters pointed out by learned APP clearly establishes contrary position. Having regard to the same the challenge made on the relevant count fails. 15. The learned counsel for the petitioner nextly by drawing the attention to Paragraph No 11 of the Order of Detention and particularly to the effect “I have considered your retraction dated 2/12/2008 and rebuttal by the department on 12/01/2009 before passing the Detention order” contended that the Order of Detention does not indicate that the Detaining authority considered further retraction of detenue dated 24/01/2009 inspite of the same being placed before the Detaining Authority. It was urged that the detaining authority was bound to consider the same before passing the Order of Detention as the said document was of vital nature which would have affected the mind of detaining authority and would have come to conclusion that detenue has resiled from his first statement. It was urged that such non consideration has impaired the subjective satisfaction arrived at by the detaining authority as sham and unreal and thus rendered the Order of Detention based on such subjective satisfaction as per se malafide, null and void. It was urged that such an averment made in Paragraph No 11 shows that the detaining authority did not read and consider further generated document and or the document placed before the detaining authority and merely approved of or bodily adopted the draft grounds of detention if any, formulated 14 CWP 1838.2010 and prepared by the Sponsoring Authority and or by the subordinate authority and put up before Detaining Authority as grounds of detention. Such a course if adopted by Detaining Authority was impermissible in law, for issuing order of detention and thus satisfaction purported to have been arrived at by the Detaining Authority is sham and unreal and as such Order of Detention passed on such a basis is malafide and ab-initio null and void and liable to be quashed and set aside. It was urged that Paragraph No 5 of affidavit in reply submitted regarding non consideration of further retraction is wholly silent about the relevant aspects. It was urged that detaining authority itself was bound to formulate the grounds as also to re-formulate the same after receiving further grounds or material. The detaining authority having failed to do so before issuing detention order, has rendered the same vulnerable and the same is liable to be quashed and set aside. In the same context the reliance was placed upon the decision in Criminal Writ Petition No 1058 of 1986 dated 13/03/1987 in between (Mrs.) Savita Ramesh Jain v/s State of Maharashtra & Ors and the decision in the case of State Of Maharshtra v/s Ramesh.K.Jain reported in (1988) 1 Supreme Court Cases 597 and so also in the decision in the case of Rakesh Sherpal Singh Rana v/s State Of Maharashtra and Ors reported in 2001 (1) Maharashtra Law Journal 495. It was urged that considering the ratio in the said decisions upon the relevant aspect the order of detention is liable to be quashed and set aside. 16. The said submissions were rightly countered by learned APP by stating that though there can be no quarrel about the proposition stated in the said decision the same are of no use for the petitioner to advance the case of the 15 CWP 1838.2010 present detenue. For, in the present case, the notings and the original file reveals that first retraction statement was made on 2/12/2008 while second on 24/01/2009. The learned APP in the said context drew our attention to the original papers which reveal that the generated