JUDGMENT
Manmohan Sarin, J.
(1) The petitioner by this writ petition, Filed through her brother Mohd. Aslam under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, challenges the order of detention dated 29th September, 1994 bearing F.No.673/168/94- CUS.VIII passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘COFEPOSA’) and prays for being released from detention forthwith.
(2) The petitioner was arrested on 30.11.1994 in pursuance to the detention order dated 29.9.1994 served on her. The facts and grounds leading to the order of detention are set out in detail in the detention order, which may be briefly stated as under:
(I)On 13.8.1994 two persons, viz., Sudhir Kapoor and Kamal Kapoor were apprehended at Sahar International Airport, Bombay, while leaving for Singapore. The search of the person of Sudhir Kapoor resulted in the recovery of D.M. 14,000 (equivalent to Rs. 2,80,000.00) and U.S. Dollars 50. The statements of Sudhir Kapoor and his brother Kamal Kapoor were recorded under Section 40 of the Foreign Exchange Regulation Act. The statements revealed that they were both working for the petitioner and were going to Singapore for purchase of electronic goods for the petitioner. The foreign exchange that had been recovered, was provided by the petitioner. Further that Kamal Kapoor had been working for the petitioner for the last four years as her carrier to go to Singapore with foreign exchange and to bring back goods on commission. Further that Kamal Kapoor was paid Rs.4,000.00 per trip in addition to Air- ticket, lodging and boarding and the latter had visited Singapore 25 times since 1992. On 13th August, 1994 foreign exchange was being carried by Sudhir Kapoor with a view to avoid suspicion. Further details regarding the purchase of foreign exchange and other associates were disclosed. The above statements made by Kamal Kapoor and Sudhir Kapoor were subsequently retracted.
II)On 14.8.1994, the petitioner’s premises were searched and a letter written by one Shri Machhan Mian residing in Dubai, addressed to the petitioner’s husband Shri Ikhtiar Ali, relating to the latter receiving 5200 Saudi Riyals in September, 1992, was recovered.
(3) The petitioner was arrested on 30.11.1994 from her house. The petitioner by this writ petition has challenged her detention order on a number of grounds. However, during the submissions before us, the petitioner confined her challenge to the detention to following grounds:
(I)That the petitioner has not been served with the order of detention and grounds of detention in Urdu language which is her mother tongue and has been served with the grounds of detention in Hindi/English language, which she cannot understand. The order of detention is, therefore, liable to he set aside as being in contravention and violative of Article 22(5) of the Constitution.
(II)That there has been long and undue delay in execution of the impugned detention order. The detention order was passed on 29.9.1994, but was not executed up to 30.11.1994, despite the fact that the petitioner was available at home during the whole period and had solemnised the marriage of her daughter on 22.10.1994. The long and undue delay in execution of the detention order casts doubt on the genuineness of the detaining authority’s decision and the need for preventive detention.
(III)The decision on petitioner’s representation was unduly delayed and was taken in a mechanical manner.
(4) In support of the First ground, the counsel for the petitioner urged that the petitioner was an illiterate woman and she could read and understand only Urdu language by joining the words. The statement by the petitioner under Section 40 of the Fera was also signed in Urdu. It was urged that the petitioner had specifically stated in the representation dated 2.12.1994, that she could read and understand only Urdu language and accordingly the detention order and all the other documents he supplied to her in Urdu language. The petitioner thereafter submitted a detailed representation dated 9.12.1994 addressed to the Joint Secretary, Cofeposa and the Secretary, Cofeposa (the second addressee was subsequently deleted by her). In para (3) of the representation in English the petitioner slated as under: “THAT the petitioner/detenu says and submits that she is an illiterate and can read and understand only “Urdu” language which is her mother tongue, however, she has been served with the order of detention and grounds of detention in Hindi/English language which she can not understand at all, ‘which amounts to non-supply of the grounds of detention. Therefore, on this ground alone the impugned order is liable to he revoked, It is submitted that the petitioner has not been supplied Urdu translation of order of detention and grounds of detention despite the fact that she made a specific request in this regard vide her representation dated 2.12. 1994 sent through Jail Superintendent well in advance. Without prejudice to challenge this in the writ petition it is requested that the petitioner may kindly be supplied the said documents in urdu language, a language known to her at the earliest in order to enable her to File an. effective and purposeful representation.”
(5) The petitioner also in para (6) of the said representation complained about the non-supply of complete Hindi translation of certain pages that had been supplied, while requesting for supply of the above documents in Urdu language. The petitioner accordingly contended that non- supply of documents Along with the grounds of detention at the lime of passing of the impugned order in Urdu violated Article 22(5) of the Constitution and the order to detention was, therefore, liable to be set aside.
(6) As regards the second and third grounds, the petitioner contends that despite the fact that she was available all along from 29.9.1904 till 30.11.1994, there was unexplained and undue delay in execution of the order of detention. It is contended that her daughter’s marriage was solemnised on 22.10,1994. Besides, she was under constant treatment of Doctor Negi of Sagarpur for diabetes and heart ailment. The representation of the petitioner dated 2nd December, 1994 was not disposed of till 30th December, 1994, entailing a delay of nearly a month.
(7) The respondents have filed the counter and have produced the case record. As per the reply filed by the respondents, petitioner’s active involvement in foreign exchange smuggling is clearly borne out from the record. However, it is not necessary to go into that aspect as the petitioner has confined her challenge to the above three grounds enumerated in para (3). As per the respondents, the petitioner of her own showing is an illiterate woman. She did not inform at the lime of recording of her statement that she could read and understand Urdu language. The petitioner’s voluntary statement was recorded in Hindi by her son on the basis of deposition made by her in Hindi. The said statement was read out to her and she admit
(8) The respondents have denied that any representation dated 2.12.1994 was received by them. The respondents contend that there is satisfactory explanation for the lime taken in disposal of the said representation which was rejected on 30.12.1994 after due application of mind. Due to the intervening weekends and the comments of the sponsoring authority having been received on 22.12.1994 a the representation was processed after the receipt of the English translation thereof its disposal by 30.12.1994 cannot be said to be unduly delayed.
(9) It is the respondents’ contention that the petitioner being an illiterate woman, her statement was recorded in Hindi by one of her sons and that the petitioner clearly understood Hindi. Accordingly the documents were supplied to her in English Along with the Hindi translation to enable her to understand the same. As regards the delay in execution of the detention order it has been stated by the respondent that an Officer of the Enforcement visited the petitioner’s residence on 10.10.1994, 8.11.1994 and 16.11.1994. On the First visit, the Officer was informed that the petitioner had been out of station for one week and was likely to come back on 28.10.1994. On the visit on 8.11.1994, it was learnt that the petitioner was likely to come back on 14.11.1994. Again on 16.11.1994 it was learnt that the petitioner was still out of station. Accordingly the delay in service of the detention order was solely attributable to the petitioner, who was absconding and was evading service. During the course of arguments the petitioner’s counsel had contended that there were no visits made at the residence of the petitioner by the respondents’ officials. The original record has been perused, which contains the reports of the concerned official of visiting the petitioner’s residence on 10.10.1994, 8.11.1994 and 16.11.1994, which are duly counter signed by the superior officers contemporaneously. The respondents have also in the counter dealt at length with the petitioner’s grievance regarding the non-supply of the documents and the complete Hindi translations. These have been dealt at length in reply to paras V and Vi of the grounds with complete details of the pages at which the translation of the documents were available and legible copies had been supplied to the petitioner. Accordingly, as per the respondents the delay in execution of the detention order, was attributable to the petitioner absconding and evading service. Further the reference to the Advisory Board was made within the stipulated period and its report was submitted within 11 weeks of the date of detention. The respondents state that there has been complete compliance with the provisions of Article 22(5) in providing the petitioner with the grounds of detention and the documents attached thereto and relied on as she was provided the English and Hindi translation thereof; Hindi being the language she understood.
(10) In view of the foregoing facts and rival contentions, the question to be considered is whether the non-supply of the grounds of detention and the copies of the relied upon documents in Urdu language would be violative of the procedural safeguard in Article 22(5) of the Constitution of India and vitiate the detention order because the petitioner has been deprived of the right to make an effective and purposeful representation as contended?
(11) The petitioner in support of her contention has relied on 1988(2) Crimes 807 Mrs. Sebastian George Fernandes Vs. D.N. Capoor and others. In the case relied on, the detenu who was of Portuguese origin, had contended that the translation of statement of one Dayalal Kapoor recorded by the Custom Authorities in Hindi had not been supplied to him. The said statement had been relied on by the detaining authority while passing the order. It was the detenu’s case that though he had studied up to some standard in English and Portuguese, but he could only speak and understand the Hindi and Konkanni languages. The detenu could read and write in English and Portuguese, they were not able to do so in Hindi and Konkanni although they were able to express themselves in the said languages. The Sponsoring Authorities knowing that the detenus could not read and write Hindi, it was incumbent upon them to provide translation cither in English or Portuguese. The writ petitions were allowed in the said case.
(12) The petitioner also relies on the case reported at 1987 Sc 1192, Mrs. Tsering Dolkar Vs. Administrator, Union Territory of Delhi and others. The detenu in this case was supplied the grounds of detention in Tibetan language. It was the detenu’s contention that he understood only the Ladakhi language but he could hardly read, write or converse in that language. The detenu’s wife was found to be conversant with both Tibetan and English language. The order was sought to be justified by relying on the fact that the detenu’s wife knew both English and Tibetan languages and in fact, an effective representation had been made. The Court negatived the contention holding that the fact that the detenu’s wife knew the language in which the grounds were – framed did not satisfy the legal requirement. The Court also held that in preventive detention the test is not one of prejudice but one of strict compliance with the provisions of the Act and once there is non- compliance, it would be difficult to sustain the order. The Court also approved that mere oral expression of the order of detention would not be sufficient.
(13) The above two decisions are distinguishable and the ratio thereof would not apply to the present case. In the instant case, it is significant to notice that the petitioner on her own showing was an illiterate woman. It is so stated by her in the first statement as recorded and subsequently in the representations made by her. As noticed above, the statement under section 40 was written by her son in Hindi language and had been read over and explained to her. It is thus obvious that the petitioner understood the Hindi language and had made the depositions in Hindi which were recorded by her son. It is only subsequently that the petitioner has chosen to claim, that she can read the Urdu language by joining words, it would he noticed that here also the petitioner docs not claim that she could normally read the Urdu language. It would be seen that the petitioner’s attempt is to somehow drift away from her statement that she is illiterate and claim the ability of reading Urdu by joining words. Although even as per the representation dated 2.12.1994 annexed with the petition, it is stated “but I can read Urdu slightly”. In the second representation dated 8/9- 12.1994, the petitioner further modified her stand to state “that she could read and understand the Urdu language which is her mother tongue”. This was not the stand which the petitioner took when the detention order was served on her, or when her earlier statement was recorded on 14.8.1994. It is thus dear that the petitioner is wrongfully claiming that she does not understand Hindi language and feigning the ability to read Urdu by joining words and understanding it, though admittedly being illiterate. The petitioner being an illiterate person, has been supplied with copies of the grounds of the detention and documents in English and Hindi. The petitioner understood Hindi language and had recorded her statement in the said language, while she could read neither the Hindi, English or Urdu languages.
(14) Reference may be usefully made to the decision of the Supreme Court in Joint Secretary to the Govt. of India and Others Vs. M/s. Food Specialities Ltd., reported at . In this case the detenu had set up a plea that he understood only Gujarati language, it was found on facts that the detenu was accompanied by his son and daughter and both of them knew English and the detenu had signed documents in Gujarati language which were written in English. While dealing with the petitioner’s plea for quashing the detention order for non-supply of the grounds of detention in the language which he understood, the Court held as under: “THERE is no rule of law that commonsense should he put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these, constitutional provisions should be strictly construed. Bearing this salutary principle in mind and having regard to I he conduct of the detenu – Venilal Mehta specially in the mercy petition and other communications, the version of the detenu Venilal is feigning lack of any knowledge of English must he judged in the proper perspective. He was, however, in any event given by 30th June, 1984, the Hindi translation of the grounds of which he claimed ignorance. The gist of the annexures which were given in Malayalam language had been staled in the grounds. 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 nol denuded of its powers to examine the truth. He goes to the extent that he signed the mercy petition not knowing the contents, not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a lime when he was under .irn:st, his room had been searched, gold biscuits had been recovered from him. 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. ”
(15) In the instant case also, it is clear that the petitioner understood the Hindi language. Further being an illiterate person, she could neither read or write either the English or Hindi or Urdu languages. In most of the cases, the ability to sign in a language is acquired, even if a person is illiterate and the same cannot he taken as showing the ability to read. The petitioner is feigning the ability to read and understand Urdu by joining words though being illiterate. which cannot be permitted. We are, therefore, of the view that provisions of Section 3(3) of Cofeposa and procedure prescribed under Clause 5 of Article 22 of the Constitution of India has been complied with in the facts and circumstances of this case.
IT is worth noticing that in such mailers, prudent course of action for authorities would have been to furnish copies of documents in Urdu, additionally, even if they were of the view that the petitioner was feigning the capacity to read Urdu. This could have been done without prejudice to the contention that the requirements of Article 22(5) had been duly met by supplying her the copies of the grounds and documents in Hindi language, which she understood’. Such a course of action would have precluded the petitioner from raising such a contention as she did in the present case.
(16) Coming to the plea that there has been unreasonable delay in execution of the order of detention, reference may usefully he made to the decision of this Court in Dalhir Singh Vs. union of India and Others, Iws (33) Drj 132 ; IW5 1 Ad (Delhi) 1169. After reviewing the entire case law and the pronouncements of the Supreme Court, the Division Bench of this Court summarised the legal position as regards the delay in execution of the detention order as under:-: “FROM the aforesaid decisions of the Supreme Court, the following principles can be gathered. Delay in executing a detention order, if satisfactorily explained, cannot vitiate the detention. If the detenu has been absconding or trying to evade arrest till he surrendered after initiation of procedure under Sections 82 and S 3 Criminal Procedure Code ., the delay cannot he fatal. Mere fact that powers under Section 7 of Cofeposa have not been invoked may not lead to inference of neglect. Delay due to lack of co-ordination between the detaining authorities and the officers executing the warrant may not also be fatal. If detenu was, in spite of frequent search, not found at his known residential address, that could be a valid explanation. Delay in translation of documents etc. is relevant. Delay for which the detenu is attributable, such as his moving Courts, is not fatal. Delay to he fatal must be of such length and remain unexplained so as to snap the nexus between the incident and the detention.”
(17) In the instant case, applying the aforesaid principles there is no difficulty in holding that the delay in execution of the detention order was on account of the nonavailability of the petitioner, who it appears was either absconding or was trying to evade her arrest. The petitioner’s contention that she was available all along is not credible. Even otherwise if the entire period from the date of order of detention and the execution thereof is considered, the delay in the present case stands duly explained and in any case it is not of such a length so as to be fatal and snap the nexus between the incident and the detention.
(18) No other contention was raised at the lime of hearing.
(19) In view of the foregoing discussion, the petition fails and is dismissed.