ORDER
J. Chelameswar, J.
1. These two writ petitions are filed challenging the orders of preventive detention issued by the Specially Empowered Officer, who happens to be the Secretary (Political) to the Government of Andhra Pradesh, under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA Act”). By two separate orders dated 31-10-2003, the two petitioners in these two writ petitions were directed to be detained under the provisions of COFEPOSA Act.
2. Facts in brief which occasioned the passing of the orders are: one Mohd. Aziz, who has an Indian Passport, issued at Riyadh, who was holding a ticket to United Arab Emirates with a Boarding Pass bearing No. 241 on which a seat 39-A was earmarked to the passport holder, was intercepted when he approached the customs departure counter for customs clearance by the customs authorities (Air Intelligence Unit, Hyderabad Airport). On a search from the baggage of the said Mr. Aziz, the authorities found assorted foreign currencies, equivalent to Rs. 1,21,06,560/-. Thereafter, the said Mr. Aziz was dechecked on a suspicion that he was smuggling the foreign currency out of India, and therefore, violated the provisions of the Customs Act, 1962, and the Foreign Exchange Management Act, 1999. All this happened on 12-9-2003. Thereafter, the statement of the said Mr. Aziz was recorded under Section 108 of the Customs Act, 1962, by the Superintendent of Customs (Preventive), Hyderabad-II Commissionerate, Hyderabad. In the above-mentioned statement, it appears, the said Mr. Aziz informed that one Lateef proposed that a free air ticket and visa to Dubai would be given to him provided that he agrees to carry some foreign currency to Dubai and hand over the same to one Mr. Hafeez, who is said to be the brother of the above-mentioned Mr. Lateef. Mr. Aziz agreed for the same on a consideration that if the job is accomplished, Mr. Aziz would be provided with some employment in Dubai by the above-mentioned Mr. Hafeez. From the impugned order, it appears that Mr. Aziz also informed in his examination under Section 108 of the Customs Act that one Mr. Siddiqui, who is the petitioner in W.P.No. 728 of 2004 and the above mentioned Lateef are partners in such illegal business of dealing in foreign currency. Thereafter, a ticket to Dubai for the scheduled travel on 12-9-2003 was given to Mr. Aziz by Mr. Lateef on 11-9-2003 evening. On the morning of 12th September, 2003, both the above-mentioned Lateef and Siddiqui went to the house of Mr. Aziz and handed over a zipper bag containing foreign currency kept concealed in sweet boxes. When Mr. Aziz went to the Airport to undertake the journey to Dubai, the petitioner in W.P.No. 727 of 2004 Mr. Qayyam also joined Mr. Aziz on the way.
3. In the background of the above-mentioned statement of Mr. Aziz, the house of Aziz was searched on 12-9-2003 under a warrant and certain documents were seized. Further, the residences of both these petitioners were searched under warrants and some more documents were seized. Form the detention orders, it appears that two computers from the residences of Qayyum and one computer from the residence of Siddiqui were also seized. They were sent to the Government examiner at Ramantapur, Hyderabad, for examination. On such examination of the hard disk of each of these computers, some more material, which brings out the involvement of these two petitioners along with others with the illegal transactions of foreign exchange, was retrieved and hence these impugned orders. The further factual details may not be very necessary for the purpose of these two writ petitions.
4. Both the petitioners sent representations, which bear the date 8-12-2003, but signed on 10-12-2003 to (1) the detaining authority (2) the Government of Andhra Pradesh, (3) Government of India and also (4) the Advisory Board constituted under the Act. The Advisory Board met on 12-12-2003 and recommended the continuance of the petitioners under preventive detention. The detaining authority and the Government of Andhra Pradesh, by two separate orders, dated 26-12-2003, rejected the representations made by these two petitioners. On the other hand, the representation made to the Government of India was rejected in the case of each of these petitioners by separate orders on 8-1-2004 and hence these writ petitions.
5. The learned Senior Counsel Sri C. Padmanabha Reddy, appearing for both the petitioners in these two writ petitions made the following submissions:
(1) That neither of the detenus have sufficient knowledge of English; the orders of detention, the grounds of detention and all the material relied upon for passing the orders of detention, supplied to the petitioners are in English and not in the language known to the petitioners, which according to them is Urdu their mother tongue, consequentially resulting in a deprivation of the right guaranteed under Article 22(5) of the Constitution of India.
(2) Copies of the report of the Customs Department on the basis of which these two detention orders came to be passed are not supplied to the petitioners and hence there is a violation of Article 22(5), and
(3) Lastly, the learned counsel submitted that there is a delay on the part of Union of India in considering the representation made by each of these detenus, which would vitiate the detention orders.
6. The learned Advocate General submitted that both the detenus have sufficient knowledge of English, apart from the fact that the copy of the order of detention and the grounds of detention, which are translated into Urdu, the mother-tongue of each of the detenus, were supplied to each of the detenus, and the contents of the order of detention as well as grounds of detention were translated and explained to the detenus after their detention. Admittedly, the various documents, i.e., the material on the basis of which the detention order came to be passed, running to 449 pages, were supplied to the detenus, which are in English, but no translated copies of them have been supplied to the detenus. The learned Advocate General submitted that in view of the fact that both the detenus have sufficient knowledge of English, and therefore, the fact that the translated copies of the documents are not supplied, would not vitiate the detention order.
7. Meeting the second submission of the learned counsel for the petitioners, the learned Advocate General argued that the report of the Customs Department (sponsoring authority) is not supplied to the detenus as there is no obligation to supply the same to the detenus in view of the Judgment reported in State of U.P. v. Shakeel Ahmed, .
8. Coming to the last submission made by the learned senior counsel appearing for the detenus that there was an inordinate delay in considering the representation made by the detenus to the Union of India, the learned standing counsel for Union of India submitted that the representation made by each of the detenus was received by the Union of India on 24-12-2003, and the same was considered and disposed of on 8-1-2004 rejecting the representations. The time taken for disposing of those representations from the date of their receipt is explained in the counter affidavit filed by the Union of India, which was given by one B.K. Khanna, Secretary to Government of India, Ministry of Finance, Department of Revenue and therefore, the detention orders are not vitiated.
9. Now we shall deal with the submissions. The obligation to supply the copies of the order of detention, grounds of detention and all the relevant material arises out of Article 22(5) of the Constitution of India, which imposes an obligation on the detaining authority to communicate to the detenus the grounds on which the detention order is made, thereby affording the detenu an earliest opportunity of making the representation against the order. By long line of decisions of the Supreme Court, it is well-settled that the expression ‘grounds’ referred to under Article 22(5) of the Constitution of India, includes not only the conclusions reached by the detaining authority for passing the detention order, but also all the relevant material on the basis of which such conclusions are reached by the detaining authority. In this case, admittedly, all the relevant material along with the grounds are supplied to the detenus in English. However, the order of detention and the grounds of detention are translated into Urdu and such translated copies are also supplied to the detenus. In fact, in the affidavit filed by the 3rd respondent at para 3, it is stated as follows:
“The grounds and the order of detention were served on the detenu on 1-11-2003 who acknowledged the receipt of the same. The contents of the above were explained to the Detenu in both, English and Vernacular (Urdu). The copies of the relied upon documents and Urdu translation of grounds of Detention and Detention Order were supplied to the Detenu on 1-11-2003 under acknowledgment”.
10. The learned Senior Counsel appearing for the detenus argued that even the translated copies of the order of detention and the grounds of detention are also not supplied to the detenus, as per his instructions. The learned Advocate General produced the original file, which contained the translated copies (in Urdu) of the order of detention and the grounds of detention, which also contain the signature of each of the detenus in token of receipt of the same. Therefore, the submission of the learned counsel for the detenus that they have not received the translated copies of the above-mentioned documents, is rejected.
11. Coming to the material documents, on the basis of which the detention orders were passed, admittedly, they were served only in English and translated copies of the same are not served on the detenus. The question is whether the respondents are under an obligation to supply in every case the translated copies of all the documents relied upon for passing the detention order, to the detenus.
12. The learned senior counsel placing reliance on judgment of the Supreme Court reported in Harikisan v. State of Maharashtra, submitted that the obligation arising under Article 22(5) of the Constitution of India to supply the grounds of detention is imposed on the State In the case of preventive detention only in order to enable the detenu to make an effective representation against the order of detention. Supplying the material in a language not known or which cannot be understood by the detenu would not meet the legal obligation imposed under Article 22(5) of the Constitution of India. The Constitution Bench of the Supreme Court speaking to the Chief Justice- Sinha, held at paragraph 8 that “if the detained person is conversant with the English language, he will naturally be in a position to understand the gravamen of the charge against him and the facts and circumstances on which the order of detention is based. But to a person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenue must be given the grounds in a language, which he can understand, and in a script which he can read, if he is a literate person”. It was a case where a person was detained and admittedly all the documents are served on him, which are in English language. The detenu made a representation to the detaining authority that he was not sufficiently conversant with English language and only conversant with Hindi, and therefore, copies of all such documents be supplied to him in Hindi language, which request was rejected by the detaining authority. Rejecting the submission made by the learned Attorney-General that if the material on the basis of which the detention order is passed is communicated in the official language of the State; the obligation imposed under Article 22(5) of the Constitution of India is met, and therefore, there was no necessity to comply with the demand of detention the court held as above. On the facts of that case, their Lordships presumed that the detenu did not know enough English to understand the grounds and held that there was violation of Article 22(5) of the Constitution of India.
13. The question whether a particular detenu knew sufficient English to understand the order of detention, which is served on him and which is in English, is a question of fact. The learned Advocate General brought to our notice a decision of the Supreme Court reported in P.C. Mehta v. Commissioner and Secretary, Government of Kerala, 1985 (Supp.) SCC 144. Justice Sabyasachi Mukharji speaking for the Bench, which was dealing with an identical issue, wherein at para 63 held that “there is no rule of law that commonsense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed”. Further, 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”. On the facts of the case and having regard to the material on record, their Lordships came to the conclusion in the following: “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 has 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 ignorance of English”.
14. In the background of the above-mentioned two decisions, we are required to examine on the facts of the present case and the question whether these two detenus really did not understand English, or do not have sufficient knowledge of English in the context of the right under Article 22 (5), and therefore, the Slate is obliged to supply copies of all the material in a language known to them, which happens to be Urdu.
15. The question is, what is sufficient knowledge of English in the context? It is not that the person is required to know English literature or have any great accomplishment in English language. What is required is, that the person can read and understand plain English without any literary embelishments. That a person is incapable of understanding subtle nuances of literature, is immaterial in the context.
16. According to the affidavits filed in support of the petitions, each of the petitioners studied up to S.S.C., and from the material on record, both of them have studied in schools, which imparted instructions in English medium. In the case of the detenu, who is the petitioner in W.P.No. 728 of 2004, from the material supplied to him, we find a statement at page 406, which was made by the said detenu under Section 108 of the Customs Act before the Customs authority stating that , ” / passed S.S.C. in English medium from Florida School in the year 1990. My mother tongue is Urdu. I can read Urdu and English. I can write in Urdu and also little English. I can speak Urdu and understand English”. It is the signed statement made by the detenu on 22-10-2003. Apart from that a spiral notebook was seized by the Customs Authority from the residence of the detenu. In his examination under Section 108 of the Customs Act mentioned earlier, the detenu was confronted with the said spiral notebook. He admitted that the writing in the note book was in his hand though he was evasive about the contents of some notes made therein. What is required to be noticed in this context is that the note-book contained notes all made in English. In fact, xerox copies of the relevant notes are also made part of the material supplied to the detenu at pages 213 to 215.
17. From the above, according to us, what logically emerges is that the detenu, who has the habit of maintaining a personal note-book in his own hand-writing in English, we are not concerned with the real contents of the note-book at this stage for the purpose of this writ petition, nor the relevance of the said note-book in the context of the allegations against him. But, we are only, on the question of the habit of the detenu. A person who has the habit of maintaining a personal note-book in English language, in our view, cannot plead lack of sufficient knowledge of English, more particularly in the background of the fact that the detenu studied up to S.S.C. in an English medium school and other material referred to earlier. Applying the said test, in the background of the facts discussed earlier, we are of the opinion that the detenu Siddique-the petitioner in W.P.No. 728 of 2004 has sufficient knowledge of English and is only feigning ignorance of English.
18. Coming to the detenu in W.P.No. 727 of 2004, in his signed statement under Section 108 of the Customs Act, at page 419 of the papers supplied to the said detenue, he stated that “I studied up to S.S.C., and intermediate discontinued. I can write Urdu and English. I can speak Urdu and understand little English”. Apart from that, one of the documents supplied to the detenu, which is found at page 296 of the papers supplied to the detenu, is a transcript of the E-Mail communication between the detenu and one Katikaneni Ram Kumar. In response to E-Mail message from the above-mentioned Ram Kumar, the detenue sent another E-mail message in English, which runs as follows:
“>Hi; Ram Bhai how r u?
>Its my pleasure, I have given 6 lack to ur’s father
>Than X 4 hotel booking.
>Cheque’s in favour of my brother name:–NAUSHADALI
>I went to ABN AMBRO BANK for rate Enquary about US $
>rate is 45.10 to credited in my account today’s rate it
>’II take 20 days approximately for clearing the cheques.
>FIND OUT your self about US $ RATE – INR.
>My mailing address in NEHA TRADING CO., 5-1-816 KJ
>MARKET KOTHI, HYDERABAD.
>500 195. Phone. 040-24738217. Send it by COURIER FED EXX
>Thanks for hotel booking. When u have any work
> U remember me its my pleasure.
> My hotmail and Yahoo messenger ID quayyam – sami.
19. From the above material, more particularly from the fact that the detenu is a person who can operate a computer and communicate through electronic mail, and having regard to the content of the communication, which is in English, we are of the opinion that this detenu has also sufficient knowledge of English required in the context of Article 22(5) of the Constitution of India.
20. An ancillary submission in this context made by the learned Senior Counsel is that the very fact that the respondents thought it fit to supply copies of the detention order and the grounds of detention, and also thought it fit to explain the contents of the same in Urdu, should lead to a necessary inference that the detenus do not have sufficient knowledge of English in the context of Article 22(5) of the Constitution of India. We regret our inability to accept the said submission. The fact that the respondents chose to communicate translated copies in Urdu, of the order of detention and the grounds of detention, in our view, does not lead to the inference that the detenus do not have sufficient knowledge of English in the context of Article 22(5) of the Constitution of India. We only look at the act of the respondents in supplying such translated copies as an act in exercise of abundant caution. We, therefore, reject the first submission made by the learned counsel for the detenus.
21. Coming to the second submission made by the learned counsel for the detenus, admittedly, communication of the Customs (sponsoring authority) to the detaining authority is not supplied to either of the detenus. In fact, in the counter affidavit filed by the 3rd respondent i.e., the detaining authority, at page 7, it is categorically admitted that such a copy of the communication is not in fact supplied to the detenus. The respondents take a bold stand that the detenu has no legal right in that regard, and therefore, there was no obligation to supply the same. In support of the submission, the learned Advocate General placed reliance on a Judgment of the Supreme Court reported in State of U.P. v. Shakeel Ahmed (supra 1). Dealing with an identical question, the Supreme Court held that “it is not mandatory that the report of the sponsoring authority should be supplied to the detenu under Article 22(5) of the Constitution”. In view of such a binding authority, we have no option but to reject the second submission made on behalf of the detenus.
22. Coming to the last submission made on behalf of the detenus, the representation dated 8-12-2003 made to the Government of India, but signed on 10-12-2003, was received by the Government of India on 24-12-2003. In the counter affidavit filed on behalf of the Union of India by its Secretary, the Ministry of Finance, at para 4, it is stated that they received the said representation on 24-12-2003. In the same counter affidavit the deponent of the affidavit explained the day-to-day movement of the file until their disposal on 8-1-2004, rejecting the representations of the petitioners. We have gone through the explanation and we are satisfied that there was no undue delay in considering the representations made by the detenus, and therefore, we are of the view that the orders of detention are not vitiated on that count.
23. In the result, we see no merits in either of the writ petitions and both the writ petitions are dismissed.