Holding

The detention order was illegal because the detainee's representation was not considered, violating Article 22(5), and the petitioner was released.

Summary

Polish national Kubic Dariusz was arrested in April 1989 for possession of foreign gold and detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). He claimed that the grounds of his detention were served only in English, a language he alleged he did not understand, and that his written representation requesting a Polish translation was never considered by the appropriate government. The Supreme Court examined whether Dariusz had a working knowledge of English, finding that his interrogation, signatures and statements indicated he did, and that his claim of ignorance was feigned. The Court also held that his representation was not considered, violating Article 22(5) of the Constitution which mandates that a detainee be given an opportunity to make a representation. Consequently, the detention order was declared illegal and the petitioner was released. The judgment also emphasized that preventive detention of a foreign national must be interpreted in line with India’s international human‑rights obligations.

Issues considered

The grounds of detention under COFEPOSA were communicated in a language not understood by the detainee, violating Article 22(5).
Whether the detainee's representation requesting translation was considered by the appropriate government.
Whether a foreign national's preventive detention must be interpreted in accordance with India's international obligations.
Whether the detainee possessed a working knowledge of English sufficient to understand the grounds.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Acts. 11(1), s. 3(1), s. 9
Customs Acts. 104

Subjects

preventive detentionArticle 22(5)COFEPOSAforeign nationallanguage of groundsrepresentationinternational lawsmugglingconstitutional law

Judgment

KUBIC DARIUSZ
A v.
UNION OF INDIA & ORS. f-

JANUARY 18, 1990

B [B.C. RAY AND K.N. SAIKIA, JJ.]

Conservation of Foreign Exchange And Prevention of Smuggling
Activities Act. Section 9--Detention of foreign national for smuggling
activities-Communication of ground in a language understood by "
him-Municipal law to be interpreted in accordance with State's interna-
tional legal obligations.
c
Constitution of India 1950: Article 22(5)-Detention Order-
Detenu to be afforded opportunity to make representation-Effective
knowledge of grounds of detention und the prejudicial acts, which the ii
;....
authorities attribute to him must be communicated to him-Non-com-
I) munication of grounds violative of Article 22(5) and mandate of the
Constitution.

Mr. Kubic Dariusz a Polish national was arrested on 29.4.89 by
the Customs Department on the ground that he was in possession of
foreign gold weighing about 70 tolas. On 30.4.89 he was produced _j
a before the Chief Judicial Magistrate who remanded him to jail custody
till 15th May 89. His bail applica1tion was rejected by the Chief Judicial
Magistrate. While still in custody he was served with the impugned
Detention Order dated 16.5.89 under the COFEPOSA Act alongwith the
grounds of detention. On 24.5.8~1 he was granted bail by the Calcutta

~
High Court but the same could not be availed of because of the deten-
ft tion order which the petitioner challenged by preferring the Writ Peli-
tion before this Court.

The detention order is assailed on two grounds, namely that the
detenu did not know English wherefore he was unable to read and be
informed of the grounds of detention to enable him to defend himself
Q and secondly that the representation submitted bv him through. the
Superintendent of Jail to Centr'11 Advisory Board, COFEPOSA was
neither considered nor acted upon or replied to at ·an by the detaining
authority wherefore the detention order was lialile to be quashed as '{
violative of Article 22(5) of the Constitution oflndia.

H On behalf of the respondent it is contended that the detenu was
98
K. DARIUSZ v. U.0.1. 99

conversant with the English language as would appear from his replies
A.
to the questions put to him in the course of interrogation. Hence there
was no question of furnishing the grounds to him in Polish language.
Refuting the second contention it was stated that after hearing the
detenu the Advisory Board found sufficient cause for his detention. It
was also urged by the respondent that the so called representation of the
detenu dated 13.6.89 was not a representation to the appropriate Govt. B
against the detention and could not be treated as such.

Allowing the Writ Petition and setting at liberty the detenu, this
Court,

HELD: Continued detentiOn of the delenu has been rendered
illegal by non-consideration of his representation by the appropriate c
government according to law, resulting in violation of Article 22(5) of
the Constitution oflndia. [114F)

Where the grounds are couched in a language which was not
known to the detenu, unless the contents of the grounds were fully D
explained and translated to the detenu it would tantamount to not serv-
ing the grounds of detention and would thus vitiate the detention ex
fade. It is the settled law that the detention order, the grounds of deten-
tion and the documents referred lo and relied upon are to be com-
municated to the detenu in a language understood by him so that he can
make effective representation against his detention. To ascertain
whether the detenu knew the language in 'which the grounds were
served or was feigning ignorence, it is open to Court to consider the
circumstances and facts of the case. The detenu is not required to write
an essay or pass any language test. A working knowledge of English
enabling him to understand the grounds would be em!ugh for making a
representation. He could very well send his representation in the F
language known by him. [103G; 106E-H; 107 A-El

No hesitation there is in the instant case in holding that the
detenu understood the English Language, had the working knowledge
of it and was feigning ignorance of it. [109E]
G
Though the representation was addressed to the Chairman Cent-
ral Advisory Board, the same was forwarded by the Jail authorities and
it must be taken to have been a representation to the appropriate
government which was to consider it before placing it before the Advi-
sory Board and the same having been not done, Article 22(5) of the
Constitution has to be held to have been violated. Delay in disposing of H
100 SUPREME COURT REPORTS [1990] 1 S.C.R.

the representation when inordilmate and nnexplained the detention
A would be rendered bad and the clletenu must be ordered to be released
forthwith. [lllA-B; HOE]

Preventive detention of a foreign national who is not resident of
the country involved an element of international law and human rights
B and the appropriate authorities ought not to be seen to have been obli-
vious of the international obligation in this regard. The universal decla-
ration of human rights include the right to life, liberty and security of - · )J
person, freedom from arbitrary arrest and detention; the right to fair
trial by an independent and impartial tribunal and the right to presum<
to be innocent until proved guilty. [112G-H; 113A]

c When an act of preventive detention involves a foreign national,
though from the national point of view the municipal law alone counts
in its application and interpretation, it is generally a recognised princi-
ple in national legal system that in the event of doubt the national rule is
to be interpreted in accordance with the States' international
o obligations. l113A-BJ

The fundamental rights guaranteed under our Constitution are in
conforming line with those in the Declaration and the Covenant on Civil
and Political Rights and the Covenant, Economic, Social and Cultural
Rights to which India has become a party by ratifying them. Crimen
If: Trahit personam. The crime carries the person. Smuggling may not be
regarded as such a crime. (113C-D]

There may, therefore, be cases where while a citizen and resident ~
of the country deserves preventive detention apart from criminal pro- .
secution, in the case of a foreign national not resident of the country he
F may not be justifiably subjected to preventive detention in the event of ,)
which no international legal assistance is possible unlike in cases of
criminal prosecution and punishment. [114D-E]

Harikisan v. The State of Maharashtra, [1962] 2 Suppl. SCR 918;
Razia Umar Bakshi v. Union of India, [1980] 3 SCR 1398; Nainmal
G Partap Mal Shah v. Union of India, [1980] 4 SCC 427; Swjeet Singh v.
Union of India, [1981] 2 SCC 359; Lallubhai Jogibhai Patel v. Union of
India & Ors., [1981] 2 SCC 427; Hadibandhu Das v. District Magis- ......
trate, [1969] 1 SCR 227; Ibrahim Ahmad Ratti v. State of Gujarat,
[1983] 1 SCR 540; Prakash Chandra Mehta v. Commissioner and Sec-
retary, Government of Kera/a & Ors., [1985] 3 SCR 697; Smt. Shalini
H Soni v. Union of India, [1981] 1SCR962; John Martin v. State of West
K. DARJUSZ v. U.0.1. [SAIKIA, J.] 101

Bengal, [1975] 3 SCR 2ll; Chandroo Kundan v. Union of India, AIR A
1980 SC ll23; Pabitra N. Rana v. Union of India, [1980) 2 SCR 869;
__I, Saleh Mohammed v. Union of India, [1980) 4 SCC 428; Kam/a Kany-
\
a/al Khushalani v. State of Maharashtra, [1981] 1 SCC 748; Rattan
Singh v. State of Punjab & Ors., [1981) 4 SCC 481; Kirit Kumar
Chaman Lal Kundaliya v. Union of India & Ors., [1981) 2 SCC 426;
Santosh Anand's case, [1981] 2 SCC 420; B. Sundar t?.ao & Ors. v. B
State of Orissa, [1972] 3 SCC II; Vimalchand Jawantraj Jain v. Shri
Pradhan & Ors., [1979] 4 SCC 401; Jolly George Verghese v. The Bank
of Cochin, AIR 1980 SC 470 and Rex v. Halliday, [1917] AC 268,
referred to.

ORIGINAL JURISDICTION: Writ petition (Criminal) No C
339 of 1989.

(Under Article 32 of the Constitution of India) .
........
Dr. Shankar Ghosh, Ashok Ganguli, Md. Nizamuddin and Ms.
Mridula Ray, for the Petitioner. D

V.C. Mahajan, A. Subba Rao and P. Parmeshwaran for the
Respondents.

The Judgment of the Court was delivered by
E
K.N. SAIKIA, J. Mr. Kubic Dariusz, a Polish national, holding
a Polish passport arriving Calcutta by air from Singapore via Bangkok
was arrested on 29.4.1989 under section.104 of the Customs Act, by

t~
'•
the officers of the Customs Department attached to Calcutta Airport,
on the ground that he was carrying iil his possession foreign gold
weighing about 70 tolas. On 30.4.1989, he was produced before the
Chief Judicial Magistrate, Barasat who remanded him to jail custody
F

till 15th May, 1989. He was interrogated by Intelligence officer when
he made, corrected and signed his statements in English. His applica-
tion for bail was rejected by the Chief Judicial Magistrate. While still
in custody, he was served with the impugned <ietention order dared
16.5.1989 passed under section 3(1) of the Conservation of Foreign G
Exchange and Prevention of Smuggling Activities Act, hereinafter
referred -to as 'the COFEPOSA Act'-along with the groun.ds of deten-
tion. On 24.5.1989 he was granted bail by the Calcutta High Court but
the same could not be availed of because of the detention order which
is now being challenged in this petition.
H
102 SUPREME COURT REPORTS [1990] 1 S.C.R.

The detention order was passed with a view to preventing the
detenu from smuggling goods; and it stated that the detaining autho-
rity, namely, the Additional Secretary to the Government of India in
the department of Revenue, Ministry of Finance, was satisfied that the
detenu was likely to smuggle goods into and through Calcutta Airport
which was an area highly vulnerable to smuggling as defined in Expla-
B nation 1 to section 9(1) of the COFEPOSA Act. In the grounds of
detention it was stated, inter alia, that arriving at Calcutta by Thai
Airways the detenu opted for the green Channel meant for the passen-
gers not having any dutiable and/or prohibited goods for customs
clearance and proceeded towards the exit gate; that he declared that he
did not have any gold with him, but on search 7 gold bars weighing 70
tolas valued approximately at Rs.2,71,728 deftly concealed between
c the inner soles of the left and right sports shoes in specially made
cavities were recovered; that in his voluntary statement before the
customs officer he admitted the recovery; that he had been able to
learn English as he was with some English people during the period of
2nd Kedardham Expedition or Kedamath Dham Expedition in the
O year 1987 and he was also learning English when he was in France in
the year 1985; that scrutiny of hies passport revealed that he visited
Delhi on 6.2.1989 & 21.2.1989, Trichi on 22.4.1989 and Calcutta on
29.4.1989; that he admitted to have been in India in 1986, 1987 & 1988;
and that on chemical tests the sample was found to 'be containing
99.9% of gold.
E
Mr, Shankar Ghosh, the learned counsel for the pe!I!Ioner
assails the <:!etention order primarily on two grounds, namely, that the
detenu knew only the Polish language and did not know English
wherefore he was unable to read and be informed of the grounds of

F
detention given in English and he was not given the grounds of deten-
tion in a language understood by him so as to enable him to defend
himself; and t/iat the representation submitted by him was not con-
sidered, acted upon or replied to at all by the detaining authority
•
1
,
wherefore the detention order wa,; liable to be quashed as violative of
Article 22(5) of the Constitution oflndia.

G Mr. V.C. Mahajan, the learned counsel for the respondents
emphatically refutes the first ground submitting that the detenu was
conversant with the English language as would appear from the ans-
wers to the questions put to him in course of interrogation by the
Intelligence authorities and this was clearly stated in the grounds of
detention, and consequently, there arose no question of his being
H furnished with the grounds of detention in Polish and not in English
K. DARIUSZ v. U.0.1. [SAIKIA, J.] 103

language. Refuting the second submission Mr. Mahajan submits that
the so called representation dated 13.6.1989 addressed to the A
Chairman, Central Advisory Board, COFEPOSA through the
Superintendent, Central Jail, Dum Dum, Calcutta was duly sent to
and received by the Chairman and the detenu appeared before the
Advisory Board which, after hearing the detenu, found sufficient
cause for his detention and there was, therefore, no question of the B
representation being separately dealt with by the Central Govern-
~-· ment. Besides, Mr. Mahajan submits, had the detaining authorit~·
accepted the statement that the detenu did not know English, they
would have been in a trap. Counsel would also submit that the so
called representation dated 13.6.1989 was not a representation to the
appropriate 'Government against the detention, and could not be
treated as such. c

_) ·Taking up the first submission, we find that Article 22(5) of the
Constitution of India provides that wheri any person is d~ned in
pursuance of an order made under any law providing fof preventive
detention, the authority making the order shall, as soon as may be, D
communicate to such person the grounds on which tire order has been
made ans shall afford him the earliest opportunity of making a rep-
resentation against the order. It is settled law that the communication
of the ground.s which is required by the earlier part of the clause is for
the purpose of enabling the detenu to make a representation, the right
to which is guaranteed by the latter part of the clause. A communica- E
tion in this context, must, therefore, mean imparting to the detenu
sufficient and effective knowledge of the facts and circumstances on
which the order of detention is passed, that is, of the prejudicial acts
which the authorities attribute to him. Such a communication would be
there when it is made in a language understood by the detenu, as was
held in Harikisan v. The State of Maharashtra, [1962] 2 Suppl. SCR F
918. In Razia Umar Bakshi v. Union of India, [1980] 3 SCR 1398, Fazal
Ali, J. held that the service of the grounds of detention on the detenu
was a very precious constitutional right and where the grounds were
couched in a language which was not known to the detenu, unless the
contents of the grounds were fully explained and translated to the
detenu, it would tantamount to not serving the grounds of detention to G
the detenu and would thus vitiate the detention ex-facie.

-In Nainmal Partap Mal Shah v. Union of India, [1980] 4 SCC
427: AIR 1980 SC 2129 the detenu stated that he did not know the
English language and, therefore, could not understand the grounds of
detention, nor he was_given a copy of the grounds duly translated in H
104 SUPREME COURT REPORTS I1990] 1 S.C.R.

vernacular language. In the counter affidavit the detaining authority
A
suggested that as the detenu had signed a number of documents in
English, it must be presumed that he was fully conversant with
English. Rejecting the contention it was held by this Court that merely
because he may have signed some documents, it could not be pre-
sumed, in absence of cogent material, that he had working knowledge
B of English and under those circumstances there had been clear viola-
tion of the constitutional provisions of Article 22(5) so as to vitiate the
order of detention. Thus what was considered necessary was a working
knowledge of English or full explanation or translation. In Surjeet
Singh v. Union of India, [1981] 2 SCC 359: AIR 1981 SC 1153, the
petitioner, being served the detention order and the grounds in Eng-
lish, contended that English was not a language which he understood
c and that this factor rendered it necessary for the grounds of detention
to be served on him in Hindi which was his mother tongue and that the
same having not been done, there was in law no communication of
such grounds to him; and it was held that under those facts and
circumstances it had not been shown that the petitioner had the
D opportunity which the law contemplated in his favour of making an
effective representation against his detention, which was, therefore,
illegal and liable to be set aside.

Where it is stated that the detaining authority explained the )
grounds of detention to the detenu, Court insists on adequate proof in
E the absence of any translation being furnished. Thus in Lallubhai
Jogibhai Patel v. Union of India & Ors., [1981] 2 SCC 427, the detenu
did not know English but the grounds of detention were drawn up in
English and the detaining authority in affidavit stated that the Police
Inspector while serving the grounds of detention fully explained the
grounds in Gujarati to the detenu. Admittedly, no translation of the
F grounds of detention into Gujarati was given to the detenu. It was held
that there was no sufficient compliance with the mandate of Article
22(5) of the Constitution which required that the grounds of detention
must be communicated to the detenu. "Communicate" is a strong
word. It requires that sufficient knowledge of the basic facts constitut-
ing the grounds should be imparted effectively and fully to the detenu
o in writing in a language which he understands, so as 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.
This follows from the decisions in Harikisan v. State of Maharashtra,
H (supra) and Hadibandhu Das v. District Magistrate, [1969] l SCR 227.:
AIR 1969 SC 43.
K. DARIUSZ v. U.0.I. [SAIKIA, J.] 105

Mr. Ghosh relies on the decision in Ibrahim Ahmad Batti v. State
of Gujarat, [1983] 1 SCR 540, wherein the detenu under the
A
~\ COFEPOSA Act was a Pakistani national to whom the detention
order and the grounds of detention were served in English and he
contended that as he did not know English and the grounds of deten-
tion and the document relied on were not furnished in Urdu within the
statutory period the detention was bad. Urdu translation of all the B
documents and statements referred to in the grounds for reaching the
subjective satisfaction had not been supplied to the detenu in time and
translations of quite a few of such documents and statements had not
been supplied at all. The petitioner's motner tongue seemed to be
Urdu and a little knowledge of English figured. It was evident that the
petitioner knew English figures, understood English words written in
capital letters and was also conversant with talking in Hindi and c
Gujarati and therefore it was argued for the detaining authority that
the non-supply of Urdu translation of the documents could not be said
_....-(.
to have caused prejudice to the petitioner in the matter of making
representation against his detention. This Court held that the Explana-
tion was hardly satisfactory and could not condone the non-supply of D
Urdu translation of those documents. In that case with the assistance
of counsel of either side the Court had gone through many of those
documents and statements and for the Court it was not possible to say
that most of them were statements of accused containing figures in
English with English words written in capital letters. A large number
of documents were in Hindi and Gujarati and were material docu- E
ments which had obviously influenced the mind of the detaining
authority in arriving at the subjective satisfaction and those were all in
f
a script or language not understood by the detenu and, therefore, it
'1{ was held that the non-supply of Urdu translation of those documents
i\ had clearly prejudiced the petitioner's right against his detention and
hence the safeguards contained in Article 22(5) was clearly violated. F

In the instant case the basis of the statement that the detenu did
not know English is his representation dated 13.6.1989, that is, nearly
one month after his detentiorr. An English rendering of the represen-
tation is found at page 75 of the Writ Petition which is attested to have
fully corresponded to its original in Polish language. It is signed by the G
detenu and is addressed to the Chairman, Central Advisory Board
\· (COFEPOSA), High Court of Delhi, through the Superintendent,
I Central Jail, Dum Dum, Calcutta. It reads:

"Ref: Govt. of India, Finance Department and Revenue
Department Order No. F No. 673/322/89-CUS-VIII H
dated 16.05.1989
106 SUPREME COURT REPORTS [1990] I S.C.R.

Sub: Representation against my detention under COFE-
A POSA

Respected Chairman,

1. I am a Polish national.
B
2. I do not know any other language except Polish
language.

3. I cannot speak, write and read English language and do
not know small English letters.

c 4. I know how to write my name in Block letters.

5. I have received all the documents concerning the above
mentioned case in English language and for the fact that
I do not know that language the doruments were so
D complicated for me to understand.

6. In view of the above facts, I kindly request your good-
self to provide me with the order of detention together
with the grounds of detention in my language (Polish J
language) so that I can effectively present my defence."
E
While it is the settled law that the detention order, the grounds
of detention and the documents referred to and relied on are to be
communicated to the detenu in a language understood by him so that
he could make effective representation against his detention, the ques-
tion arises as to whether the courts have necessarily to accept what is
p stated by the detenu or it is permissible for the Court to consider the
facts and circumstances of the case so as to have a reasonable view as
to the detenu's knowledge of the language in which the grounds of
detention were served, particularly in a case where the detenu is a
foreign national. If the detenu's statement is to be accepted as correct
under all circumstances it would be incumbent on the part of the
G detaining authority in each such case to furnish the grounds of deten-
tion in the mother tongue of the detenu which may involve some delay
or difficulty under peculiar circumstances of a case. On the other hand ---~

if it is permissible to ascertain whether the statement of the detenu in
this regard was correct or not it would involve a subjective determina-
tion. It would, of course, always be safer course in such cases to
H furnish translations in the detenu's own language. We are of the view
K. DARIUSZ v. U.0.1. [SAIKIA, J.I 107

that it would be open for the Court to consider the facts and the A
circumstances of a case to reasonably ascertain whether the detenu 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 instant case we find that when the detention order and the B
grounds of detention were served the detenu received them and ack-
nowledged the receipt thereof, as it appears from the records, putting
his signature in English. He did not complain that the grounds of
detention were not understood by him. On the other hand in the very
grounds of detention 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 c
also given in the grounds of detention. We have perused the state-
ments and find that those contained number of informations peculiar
to the detenu himself which could not have been communicated by liim
to the interrogators unless he knew the English language. We also find
that in several places he corrected the statements putting appropriate D
English words and signing the corrections. While the detention order
was passed on 16-5-1989 his representation was admittedly dated only
13-6-1989. In the meantime bail petitions were moved on his behalf
before the Chief Judicial Magistrate and the High Court. There is
nothing to ·show that he did not give instructions to his counsel. After·
all, the detenu is not required to write an essay or pass any language E
test. 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.

In Parkash Chandra Mehta v. Commissioner and Secretary,
Government of Kera/a & Ors., [1985] 3 SCR 697, Venilal D. Mehta,
his daughter Miss Pragna Mehta and son Bharat Mehta were detained
under the COFEPOSA Act by an order dated 19th June, 1984 and the
detention order was challenged in this Court under Article 32 of the
Constitution of India. They were alleged to have been in possession of
60 gold biscuits of foreign origin. After their arrest the father and his
daughter were taken to the Central Excise and Customs Department, G
Cochin where statements on their behalf were written in English by the
daughter. The father Venilal D. Mehta put his signature in English as
Balvant Shah but the daughter told !(le officers concerned that the.
cotrect name of her father was Venilal Mehta. In the writ petitipn it
was the case of the father that he could not understand, read, speak or
write English but could only sign his name in English. He was served H
108 SUPREME COURT REPORTS [1990] 1 S.C.R.

A with the grounds of detention in English language on 20th June, 1984.
A Hindi translation of the grounds of detention was served on 30th
June, 1984. On 27th May, 1984 the father made a representation in
Gujarati to the detaining authority praying that he was unable to read
and write either in English or Hindi or Malayalam and the grounds of
detention may be given to him duly translated in Gujarati. In Court it
B was contended that the order and grounds should have been com-
municated to the detenu in the language or languages they understood
and Venilal Mehta understood nothing except Gujarati. He did not
understand English or Hindi or Malayalam. The Hindi translation was
admittedly furnished beyond a period of 5 days and no exceptional
circumstances were stated to exist. Following Harikisan v. State of
Maharashtra (supra) and considering the definite case of Venilal
c; Mehta, this Court observed that the facts revealed that the detenu
Venilal Mehta was constantly in the company of his daughter as well as
son and both of them knew English very well. The father signed a
document in Gujarati which was written in English and which was his
mercy petition in which he completely accepted the guilt of the in-
1} volvement in smuggling. That document contained a statement-"!
myself am surprised to understand what prompted me to involve in
such activity as dealing in Imported Gold." 0.. those facts and
circumstances this Court observed:

"There is no rule of law that common sense should be put in J
cold storage while considering Constitutional provisions for
safeguards against misuse of powers by authorities though
these Constitutional provisions should be strictly cons-
trued. Bearing in mind this salutary principle and having
regard to the conduct of the detenu Venilal Mehta espe-
cially in the mercy petition and other communications, the .I
F version of the detenu Venilal in feigning lack of any
knowledge of English must be judged in the proper pers- )
pective. He was, however, in any event given by 30th June,
1984 the Hindi translation of the grounds of which he
claimed ignorance. The gist of the annexures which were
given in Malayalam language had been stated in the
G grounds. That he does not know anything except Gujarati
is merely the ipse dixit of Venilal Mehta and is not the last
word and the Court is not denuded of its powers to examine
the truth. He goes to the extent that he signed the mercy
petition not knowing the contents, not understanding the
same merely because his wife sent it though he was sixty
H years old and he was in business and he was writing at a
K. DARIUSZ v. U.0.L [SAIKIA, J.] 109

time when he was under arrest, his room had been
A
searched, gold biscuits had been recovered from him.
Court is not the place where one can sell all tales. The
detaining authority came to the conclusion that he knew
both Hindi and English. It had been stated so in the
affidavit filed on behalf of the respondent. We are of the
opinion that the detenu Venilal Mehta was merely feigning B
ignorance of English."

After referring to the decisions in Hadibandhu Das v. District
Magistrate, Cuttack & Anr. (supra), Nainmal Partap Mal Shah v.
Union of India & Ors. (supra), and Ibrahim v. State of Gujarat & Ors.
(supra) this Court in Prakash Chandra Mehta (supra) rejected the
contention that the grounds of detention were not communicated to c
Venilal Mehta in a language understood by him.

Considering the facts and circumstances of the instant case and in
view of the fact that no objection regarding non-communication of the
grounds in a language understood by the detenu was made within the D
statutory period for furnishing the grounds and the fact that the rep-
resentation was beyond the statutory period, almost a month after the
grounds were served, along with the detenu's statements as to how he
learnt English, we have no hesitation in holding that the detenu under-
stood the English language, had working knowledge of it and was
feigning ignorance of it, and there was no violation of Article 22(5) of E
the Constitution on the ground of non-communication of the grounds
of detention in a language understood by him. The first submission of
the detenu has, therefore, to be rejected.

Coming to the second submission, in the representation dated
13.6.1989 the detenu clearly requested that he be provided with the F
order of detention together with the grounds of detention in his
language (Polish language) so that he could effectively present his
defence. He called it a "representation" against his detention under
CUFEPOSA Act. Admittedly, this representation was not disposed of
by the appropriate Government and, indeed, has not been disposed of
or acted upon till today. Mr. Mahajan submits that it having been G
addressed to the Chairman, Central Advisory Board it need not have
been dealt with by the Central Government and it could not be
regarded as representation at all and the Government smarted out of
the trap by not admitting that the detenu did not know Englisp.. We are
not inclined to accept this submission. Admittediy the representation
was sent through the Superintendent, Central Jail, Dum Dum, H
110 SUPREME COURT REPORTS I1990] 1 S.C.R.

Calcutta. There was no scope to hold that what has been stated to be
A
'representation' was not representation at all inasmuch as it only
requested for translated copies of the grounds of detention and the
annexed documents in Polish language. Supply of translated copies
would have surely not affected the detention order ipso facto. In Smt.
Shalini Soni v. Union of India, AIR 1981SC431: 1981(1) SCR 962, it
B has been held that under Article 22(5) no proforma for representation
has been prescribed and a request for release of the detenu, therefore,
has to be deemed a representation; so also a request to supply copies
of documents etc. Opportunity to make a representation comprehends
a request for supply of translated copies. Therefore, the detenu's 'rep-
resentation' asking for copies of documents must be held to have
amounted to a representation and it was mandatory on the part of the
C appropriate Government to consider and act upon it at the earliest
opportunity and failure to do so would be fatal to the detention order.
There has been a catena of decisions of this Court that the representa-
tion of the detenu must be considered by the appropriate Government
and Article 22(5) does not say which is the authority to whom rep-
D resentation shall be made or which authority shall consider it. But it is
indisputable that the representation may be made by the detenu to the
appropriate Government and it is the appropriate Government that
has to consider the representation as was reiterated in John Martin v.
State of West Bengal, AIR 1975 SC 775: 1975 (3) SCR 21 I.

E It is settled law that delay in disposing the representation when
inordinate and unexplained the detention would be bad and the detenu
must be ordered to be released forthwith. Chandroo Kundan v. Union
of India, AIR 1980 SC 1123; Pabitra N. Rana v. Union of India, AIR
1980 SC 798: ( 1980) (2) SCR 869, Saleh Mohammed v. Union of India,
AIR 1981 SC 111: ( 1980) 4 SCC 428; Kam/a Kanya/al Khusahalani v.
p State of Maharashtra, [1981] 1 SCC 748 are some of the decisions
settling this proposition of law.

In Rattan Singh v. State of Punjab & Ors., [1981] 4 SCC 481, it
was held that section 11(1) of the COFEPOSA Act confers upon the
Central Government the power of revocation of an order of detention
G made by the State Government or its officer. That power, in order to
be real and effective, must imply the right in a detenu to make a
representation to the Central Government against the order of deten-
tion. The failure of the Jail Superintendent to either forward the rep- ·-.f
resentation to the Government concerned or to have forwarded the
same to the State Government with a request for their onward trans-
H mission to the Central Government in that case was held to have
K. DARIUSZ v. U.0.1. ISAIKIA, J.! 111

deprived the detenu of his valuable right to have his detention revoked
A
by the Government. The continued detention of the detenu was,
therefore, held illegal and the detenu was set free. In the instant case
though the representation was addressed to the Chairman, Central
Advisory Board the same was forwarded by the Jail authorities and it
must be taken to have been a representation to the appropriate
Government which was to consider it before placing it before the B
Advisory Board and the same having not been done Article 22(5) has
to be held to have been violated.

In Kirit Kumar Chaman Lal Kundaliya v. Union of India & Ors.,
(1981] 2 SCC 426, a case under the COFEPOSA Act, where the order
of detention was made by the Home Minister and the representation
made by the detenu had been rejected not by the Home Minister but c
by the Secretary, this Court held that the representation had been
rejected by an authority which had no jurisdiction at all to consider or
pass any order on the representation of the detenu and that, therefore,
rendered a continued detention of the petitioner void, following
Santosh Anand's case (1981) 2 SCC 420, where it was held that the D
representation was not rejected by the detaining authority and as such
the constitutional safeguards under Article 22(5) could not be said to
have been strictly observed or complied with. In B. Sundar Rao & Ors.
v. State of Orissa, [1972] 3 SCC 11, where the detention was under the
Orissa Preventive Detention Act, 1970 and sections 7 & 11 thereof
conferred the right on the detenu to make representation and have it E
considered by appropriate authority it was held that such considera-
tion was independent of any action of Advisory Board as there was
necessity of Government to form opinion and judgment before send-
ing the case to the Advisory Board.

In Vimalchand Jawantraj Jain v. Shri Pradhan & Ors., [1979] 4 F
SCC 401, it was held by this Court that under Article 22(5) indepen-
dent of the reference to the Advisory Board, the detaining authority
must consider the representation at the earliest and come to its own
conclusion before confirming the· detention order and consideration
and rejection of the representation subsequent to report of the Advi-
sory Board would not cure the defect. It was clearly held that it is no G
answer for the detaining authority to say that the representation of the
detenu was sent by it to the Advisory Board and the Advisory Board
had considered the representation and then made a report in favour of
detention. Even if the Advisory Board had made a report upholding
the detention the appropriate Government is not bound by such
opinion and it mar still, on considering the representation of the H
112 SUPREME COURT REPORTS [1990] 1 S.C.R.

detenu and keeping in view all the facts and circumstances relating to
A
the case, com1e to its own decision whether to confirm the order of
detention or to release the detenu; as in that case there was nothing to
Show that the Government considered the representation before mak-
ing the order confirming the detention. The Constitutional obligation
under Article 22(5) was not complied with. In the instant case there
B was no consid1eration before and even after the Advisory Board con-
sidered the case of the detenu. It can not therefore, be said that the
representation was disposed of in accordance with law.

Mr. Ghosh faintly submits on merits of the case that a single
instance of possessing 70 tolas of gold in gold bars was not enough to
genuinely satisfy the detaining authorities to resort to preventive deten-
c tion of th~ petitioner who is a Polish national and not resident in India.
It is true that the detention order was passed with a view to preventing
the detenu from repeating smuggling activities. That the detenu in the
particular act indulged in smuggling could not of course be denied. It is
stated in the counter that the detention of persons under the
D COFEPOSA Act serves two purposes: (1) to prevent the person con-
cerned from engaging himself in an activity prejudicial to the conserva-
tion of foreign exchange and also preventing him from smuggling·
activities and thereby to render him immobile by the detaining autho-
rity so that during that period the society is protected from such pre-
judicial activities on the part of the detenu; and (2) to break the links
E between the persons so engaged and the source of such activity and
from his associates engaged in that activity or to break the continuity
of such prejudicial activities so that it would become difficult, if not
impossible, for him to resume the activities. There is undoubtedly
scope for interpreting that the above two purposes envisage contin-
uous residence of the person engaged in smuggling and as such may be
F more readily applicable to a resident of the country. But such habitual
smuggling activity may not have similarly been envisaged in respect of
a foreign national who is not a resident of this country. The customs
Act itself makes appropriate provisions for adjudication, confiscation
and punishment for smuggling and prevents possible repetition or
recurrence.
G
Preventive detention of a foreign national who is not resident of
the country involves an element of international law and human rights ·/
and the appropriate authorities ought not to be seen to have been
oblivious of its international obligations in this regard. The universal
declaration of human rights include the right to life, liberty and secu-
H rity of person, freedom from arbitrary arrest and detention; the right
K. DARIUSZ '· U.0.l. [SAIKIA, J.] 113

to fair trial by an independent and impartial tribunal; and the right to A
presume to be an innocent man until proved guilty. When an act of
preventive detention involves a foreign national, though from the
national point of view the municipal law alone counts in its application
and intepretation, it is generally a recognised principle in national'
legal system that in the event of doubt the national rule is to be
interpretted in accordance with the State's international obligations as B
was pointed out by Krishna Iyer, J. in Jolly George Verghese v. The
Bank of Cochin, AIR 1980 SC 470. There is need for harmonisation
whenever possible bearing in mind the spirit of the Covenants. In this •
context it may not be out of place to bear in mind that the fundamental
rights guaranteed under our Constitution are in conforming line with
those in the Declaration & The Covenant on Civil and Political Rights C
and the Covenant, Economic, Social and Cultural Rights to which
India has become a party by ratifying them. Crimen Trahit personam.
The crime carries the person. The commission of a crime gives the
court of the place where it is committed jurisdiction over the person of
the offender. Legal relations associated with the effecting of legal aid
on criminal matters is governed in the international field either by the D
norms of multilateral international conventions relating to control of
crime of an international character or by special treaties concerning
legal cooperation. Smuggling may not be regarded as such a crime.
The system of extradition of criminals represents an act of legal assis-
tance by one State (the requestee) to another State (the requestor)
with the aim of carrying out a criminal prosecution, finding and arrest- E
ing a suspected criminal in order to bring him to court or for executing
the sentence. In concluding such convention the States base them-
selves on principles of humanitarianism in their efforts to contribute to
the more effective achievement of the objectives of the correction and
re-education of violators of the law. Where such conventions exist, the
citizens of a State who were convicted to deprivation of freedom in F
another signatory State are in accordance with mutual agreement of

' the States, transferred to the country of which they are citizens to
serve their sentences. The transfer of the convicted person may take
place only after the verdict has entered into legal force and may be
carried out on the initiative of either of the interested States. The
punishment decided upon with regard to a convicted person fa served G
on the basis of the verdict of the State in which he was convicted. On
the strength of that verdict the competent court of the State of which
\.-'
' the person is a citizen adopts a decision concerning its implementation
' and determines, in accordance with the law of its own State, the same
period of deprivation of freedom as was assigned under the verdict.
While such ameliorative practices may be available in case of a foreign H
114 SUPREME COURT REPORTS [ 1990) l S.C.R.

A national being criminally prosecut1~d, tried and punished, no such pro-
ceedings are perhaps possible when he is preventively detained. A
preventive detention as was held in Rex v. Halliday, 1917 AC-268 "is
not punitive but precautionary measure." The object is not to punish a
man for having done something but to intercept him before he does it
and to prevent him from doing it. No offence is proved, nor any charge
B is formulated; and the justification of such detention is suspicion or
reasonable probability and there is no criminal conviction which can
only be warranted by legal evidence. In this sense it is an anticipatory
action. Preventive justice requires an action to be taken to prevent
apprehended objectionable activides. In case of punitive detention the
person concerned is detained by way of punishment iifter being found
c guilty of wrong doing where he has the fullest opportunity to defend
himself, while preventive detention is not by way of punishment at all,
but it is intended to prevent a person from indulging in any conduct
injurious to the society. There may, therefore, be cases where while a
citizen and resident of the country deserves preventive detention apart
from criminal prosecution, in case of a foreign national not resident of
D the country he may not be justifiably subjected to preventive detention
in the event of which no international legal assistance is possible unlike
is case of criminal prosecution and punishment. Considering the facts
and circumstances of the instant case, however, we find sufficient
evidence of the detenu having visited this country though on earlier
occasions he was not found to have been carrying on such smuggling
E activities. However, in view of our decision in the earlier submissions
we do not express any opinion on this submission.

In the result we find force in the second submission and hold that
continued detention of the detenu has been rendered illegal by non-
consideration of his representation by the appropriate Government
F according to law resulting in violation of Article 22(5) of the Constitu-
tion; and he is to be set at liberty forthwith in this case.
,
R.N.J. Petition allowed.
\
'