A.C. RAZIA versus GOVERNMENT OF KERALA AND ORS.

Citation: [2003] SUPP. 1 S.C.R. 21 · Decided: 07-05-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Matter referred to larger bench

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Judgment (excerpt)

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I 
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A.C. RAZIA 
v. 
GOVERNMENT OF KERALA AND ORS. 
MAY 7, 2003 
[S. RAJENDRA BABU AND G.P. MATHUR, JJ.] 
Preventive Detention : 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974-Sections 3(/)(i)-(iv) and 3(2)-Constitution of India, 
1950-Article 22(5)-Detention order-Representation by detenue-
Representation and allied documents being placed before Central Government 
in regional language by concerned authority-Non-translation in English 
language-Non-availability of records to show if officer concerned having 
knowledge of regional language-Confirmation of detention order-
Justification of-Held: As Central Government could not exercise full and 
independent application of mind due to non-translation, detention order 
vitiated-Guaranteed rights under Article 22(5) violated-Thus order of High 
Court confirming detention order set aside. 
Detention Order was passed against appellant's husband under 
Sections 3(1 )(i), (ii), (iii) and (iv) of the Conservation of Foreign Exchange 
and Prevention of Smuggling Activities Act, 1974. Appellant made a 
representation in regional language to the detaining authority and to the 
Central Government. Both the representations were rejected. Thereafter 
on reference Advisory Board passed a report and the Government then 
confirmed the detention order. Aggrieved appellant filed writ petition 
challenging the detention order. High Court dismissed the same. Hence 
the present appeal and writ petition. 
Appellant contended that representation sent to the Central 
Government and also the documents forming the basis of detention order 
was in Malayalam and no English translation of the same was made 
available to the Central Government; and that there is nothing on record 
to show that the concerned officer who dealt with the representation knew 
Malayalam, the same was not considered in the manner contemplated 
under the Constitution and COFEPOSA Act, thus the detention is vitiated. 
A 
B 
c 
D 
E 
F 
G 
21 
H 
22 
SUPREME COURT REPORTS (2003] SUPP. I S.C.R. 
A 
State Government contended that the consideration of the 
representation by the Authority and the Government is different; and that 
there is no need to furnish translation of all the documents relating to 
detention to the Central Government. 
Union of India contended that under section 3(2) of the COFEPOSA 
B Act, it is not relevant whether the State Government forwards the relied 
upon documents to the Central Government or not since there is no 
provision in the COFEPOSA Act for approval of the deterrtion order by 
the Central Government; that the Central Government is to apply its mind 
for the purpose of taking a decision whether it is necessary to interfere 
C with the detention order; and that in the instant case, the Central 
Government took decision upon the report under Section 3(2) on the basis 
of the comments on appellant's representation and on the abridged English 
translation of the documents, which was made available to them by the 
State Government. 
D 
Referring the matter to a larger Bench, the Court 
Per Rajendra Babu, J 
HELD: I. There is a fundamental difference between the 
consideration of a representation by the Governntent under Section 3 and 
that of the one by the authority under Section 8 of Conservation of Foreign 
E E.xchange and Prevention of Sntuggling Activities Act, 1974. The 
Government under its constitutional obligation under Article 22(5) of the 
Constitution will have to ascertain whether the order itself is permissible 
under law or not, whereas the Authority is looking the matter under 
Article 22(4). 127-H; 28-A) 
F 
KM. Abdulla Kunhi v. Union of India, 11991) 1 SCC 476; P.K. 
Chakrabarty and Ors. v. State of West Bengal,119691 3 SCC 400 and 
Jayanarain Surul v. State of West Bengal, 11970) 1SCC219, not applicable. 
2. I. For a proper consideration of the representation by the detenue 
G by Central Government, there should be full and independent application 
of mind on the representation and on all the documents upon which the 
detention order was passed. This could not be done by a ritualistic perusal 
of the documents in a perfunctory manner. The grounds of detention and 
the documents upon which it is based should be strictly scrutinized. For 
this purpose, the necessary documents should be translated into the 
H language which could be understood by the concerned person who is sitting 
A.C. RAZIA v. GOVERNMENT OF KERALA 
23 
upon judgment ove

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