LexKUBIC DARIUSZ versus UNION OF INDIA & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
KUBIC DARIUSZ
v.
UNION OF INDIA & ORS.
f-
JANUARY 18, 1990
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[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-
c
tional legal obligations.
Constitution of India 1950: Article 22(5)-Detention Order-
Detenu to be afforded opportunity to make representation-Effective
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knowledge of grounds of detention und the prejudicial acts, which the
;....
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
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foreign gold weighing about 70 tolas. On 30.4.89 he was produced
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
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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
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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
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violative of Article 22(5) of the Constitution oflndia.
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On behalf of the respondent it is contended that the detenu was
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K. DARIUSZ v. U.0.1.
99
conversant with the English language as would appear from his replies
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.
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
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
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
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]
Though the representation was addressed to the Chairman Cent-
ral Advisory Board, the same was forwarded by the Jail authorities and
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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 aExcerpt shown. Read the full judgment & AI analysis in Lexace.