Preventive Detention | When Detenu Receives Grounds Of Detention In Language Known To Him, No Need For Oral Information Again : Supreme Court

Speaking of Article 22(5) of the Constitution of India, a Division Bench of Justices MM Sundresh and Aravind Kumar said that a detenu must necessarily be informed of the grounds of detention (alongwith relevant documents) as soon as may be, in a language that he understands, as well as informed of his right to make a representation questioning the detention order.

“…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…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.”

It was remarked that the two rights accruing to detenus under Article 22(5) are mutually reinforcing. The objective underlying the same is to extend knowledge to a detenu, leading to a representation on his decision to question the detention order.

On the aspect of informing the detenu of his right to make representation, the Bench reiterated that such a communication can either be oral or in writing.

Explicating the legal position, it said that when a detenu cannot understand the language used by authorities, a mere verbal explanation would not suffice. Even if he refuses to receive grounds of detention, a detenu has to be informed of the right to make representation.

“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.”

However, it was clarified that if a detenu receives the grounds of detention in a known language, containing a clear statement of his right to make representation, he need not be informed verbally again. This exercise would be required if the grounds do not indicate detenu's right to make representation.

Notably, the detenu in the present case was apprehended after information was received regarding a consignment containing gold and foreign currencies. He was arrested, but obtained bail. Subsequently, a detention order was passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

After passing of the order, the detenu was detained. As he refused to accept grounds of detention, a panchnama was drawn in presence of two independent witnesses, which was signed by the detenu in English with the remark “I have refused to receive any document”.

Inferring from the same that the detenu's ignorance of English was only an afterthought, and noting that even translated version of the grounds was attempted to be served on him on the very next day of his detention, the Bench denied relief. It was observed that he had approached the court with unclean hands and suppressed material facts.

“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”.

The Bench held that the grounds of detention forming basis of the satisfaction of the detaining authority were made known to the detenu. In the same, there were “adequate averments” indicating a right to make representation to the named authorities. The detenu had read the grounds as well as the relevant documents. Therefore, “he was well aware of his right to make a representation.”