SARFARAZ ALAMversusUNION OF INDIA & ORS.

                  [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

* Author
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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.
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                    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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           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.