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Nassim Jani Vs. Lt. Governor - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 23 of 1978
Judge
Reported in1979RLR41
ActsEvidence Act - Sections 24; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1) - Schedule - Article 22(5)
AppellantNassim Jani
RespondentLt. Governor
Advocates: D.C. Mathur and; K.K. Sud, Advs
Excerpt:
.....satisfaction that it was necessary to prevent petitioner from carrying on smuggling activities - action of detaining authority bona fide and not vocative of any provision of act - detention valid. - - no doubt his manner of conversation was that of a foreigner who was not too well up in english, neverth less he was able to understand english and give f instructions to his counsel in english. it has been urged forcefully that inasmuch as the petitioner is not well-acquainted with the english language he wrote in his own language disowning what was reduced to writing during interrogation. if the petitioner could write the words 'received copy' in english he could very well write that he did not understand or did not accept what was recorded during the interrogation also in the..........in english language. there is also some other writing which, we are told, is in the script of the hebrew language. this writing in hebrew translated into english, according to ben-yehuda's pocket english- hebrew-english dictionary, means 'not under -stand'. it is this writing in hebrew which is claimed to be the retraction. it has been urged forcefully that inasmuch as the petitioner is not well-acquainted with the english language he wrote in his own language disowning what was reduced to writing during interrogation. this fact was not brought to the notice of the administrator. the respondents admit that the translation of what was written in hebrew was not made nor was it brought to the notice of the administrator. the question is whether it has any effect on the validity of the.....
Judgment:

Prakash Narain, J.

(1) She next challenge is that according to grounds of detention it is based on alleged confession made by him duing interrogation by the officials of the Directorate of Revenue Intelligence. This confession, it has been submitted, cannot be treated as confession because it is recorded in the English language with which the petitioner was not very familiar and, in any case, which was retracted by the petitioner at that very moment. The contention is that the fact of retraction of the alleged confession or that the petitioner was not very familiar with the English language was not brought to the notice of the Administrator who made the impugned order of detention. These facts not having been brought to his notice the detention order stands vitiated for it cannot be predicated whether the Administrator would have passed the order of detention despite knowledge that the alleged confessions were not the confessions of the petitioner and were, in any case, confessions which had been retracted. Support for this proposition is sought from a bench decision of this court reported in I.L.R. 1975 (2) Delhi 791 and .

(2) The first , question for decision is whether the petitioner's contention that he is not familiar with the English language or not too familiar with the English language can be accepted. No doubt the petitioner claims to be an Israeli national but that does not mean that he is not familiar with the English language. Indeed, when he appeared in court in person on September 11, 1978 we noted in the proceedings of that date that the detenu was able to converse in English language with his counsel. This we noted as during the course of hearing we had asked the counsel of the petitioner to make certain enquiries from the detenu and he was able to give instructions to his counsel in intelligible language. When we put him to the test of writing English language, the petitioner could write in the English language in capital letters on the words being spelt out to him. No doubt his manner of conversation was that of a foreigner who was not too well up in English, neverth less he was able to understand English and give f instructions to his counsel in English. thereforee, we cannot persuade ourselves to agree with the learned counsel for the petitioner that the petitioner was unable to follow the officials of the Directorate of Revenue Intelligence when they were interrogating him or when they were reducing what was being said during interrogation to writing. We have been shown the original record of the interrogation by the Directorate of Revenue Intelligence. It runs into several pages and the interrogation lasted for several days. It is a typed record of the statement of the petitioner on interrogation. There are a number of corrections made in the record, each initialled by the petitioner. Each page of this long interrogation is initialled or signed by him. He has also signed at the end of the proceeding of each day. The signatures admitted by him to be his are not legible to spell out the petitioner's name in English language. There is also some other writing which, we are told, is in the script of the Hebrew language. This writing in Hebrew translated into English, according to Ben-Yehuda's Pocket English- Hebrew-English Dictionary, means 'not under -stand'. It is this writing in Hebrew which is claimed to be the retraction. It has been urged forcefully that inasmuch as the petitioner is not well-acquainted with the English language he wrote in his own language disowning what was reduced to writing during interrogation. This fact was not brought to the notice of the Administrator. The respondents admit that the translation of what was written in Hebrew was not made nor was it brought to the notice of the Administrator. The question is whether it has any effect on the validity of the detention order.

(3) We have already noticed the result of our observation in court as to whether the petitioner could or could not understand the English language. It is strange that the petitioner chose to write in the Hebrew language something which even he must have known would not be intelligible to anyone in India. A retraction to be an effective retraction must be communicated in the manner to the authority concerned that the authority would understand it to be retraction. One could understand a situation where the petitioner was completely ignorant of the English language and had spoken in Hebrew and written in the Hebrew script. In the case of the petitioner he spoke in English, can speak in English, but chose to make a writing in the Hebrew language without telling anybody what he purported to write. A communication of this type would not be an effective communication as it is not capable of being understood by the party to whom the communication is sought to be made. Apart from this we find yet another feature in the case which persuades us to take the view that the petitioner did not act bona fide while endorsing some writing on the record of this interrogation. Various notices were served on him, for example, the detention order, the grounds of detention and the initial notices of search being effected by the Directorate of Revenue Intelligence in his house. We have been shown from the original record these notices which were served on him On each one of those the petitioner has written in the English script the words 'received copy' and then put his signatures, On some of these he has also made the same endorsement in the Hebrew script, as is to be found on the record of his interrogation. If the petitioner could write the words 'Received copy' in English he could very well write that he did not understand or did not accept what was recorded during the interrogation also in the English script. Further-more the lady by the name of Mullin is shown to have been present during search, seizure and even some parts of the interrogation. She is admittedly an English lady well familiar with the English language and was reported to have been living with the petitioner in his house in Vasant Vihar as his wife or otherwise. There was nothing to prevent the petitioner in taking her assistance in making an intelligible retraction. We, thereforee, hold that the writings in the Hebrew cannot be regarded as retractions and the respondents cannot be blamed for ignoring the same.

(4) It is next urged that some of the grounds of detention served on the petitioner are vague, nonexistent and irrelevant. The contention is that if some of the grounds suffer from these infirmities the order of detention would stand vitiated; We need not dilate much on this aspect. No doubt, previously the law was that even if one ground of detention is vague or non-existent or not-proximate, the order of detention would be vitiated because it was not possible to predicate to what extent such a ground effected the subjective satisfaction of the detaining authority. In view of the enactment of Section 5A introduduced by the Cofeposa (Amendment) Act, 1975, with effect from July 1, 1975, by which an order of detention u/s 3(1) which has been made on two or more grounds shall be deemed to have been made separately on each of such grounds and such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, nonexistent, not relevant, not proximate etc., the argument is no longer available. The validity of Section 5A of Cofeposa is not challenged before us. thereforee, even if one ground would be sufficient to create a reasonable suspicion in the mind of the detaining authority that if the person concerned is not detained he would continue to indulge in activities which Cofeposa seeks to prevent by preventive detention, the detention has to be upheld. Looking at the grounds of detention we are of the view that there are more than one grounds which may well justify a detaining authority to arrival at the requisite subjective satisfaction. In this view of the matter we find it unnecessary to dialate on each ground of detention as to whether the same should be held to be irrelevant, vague, non-existent etc. ' ' 8. ' The petitioner has been detained on suspicion of being connected with an international smuggling racket of hashish. His connection with this nefarious activity is shown to exist on the basis of intelligence reports received from the Drug Enforcement Administration of United States of America & governmental sources of the United Kingdom. On the basis of these intelligence reports the respondents could arrive at a .subjective satisfaction that it was necessary to detain the petitioner under Cokeposa to prevent him from carrying on in future the objectionable activity and indulging in smuggling. Similarly, the statements recorded by the Directorate of Revenue Intelligence of petitioner and others could also justify the impugned subjective satisfaction of the detaining authority. The recovery of large quantities of hashish sought to be smuggled out of the country by the ingenious method of packing the same in fork-liftt yres would strengthen the suspicion of the detaining authority qua the petitioner. All these circumstances together and individually would justifiably persuade the the authorities to suspect that the petitioner has been indulging in smuggling of hashish and arrive at a satisfaction that it was necessary to detain him to prevent to do so in future. The petitioner may, or may not be guilty of the alleged activity. It is not for us to comment in the present proceedings on that aspect. All that we are required to see is whether grounds exist to arrive at the satisfaction postulated by Section 3(1) of COFEPOSA. It the action of the detaining authority is bona fide and is not vocative of any of the provisions of Cofeposa or Articles 21 or 22 of the Constitution, the detention is to be upheld. Accordinely, we uphold the validity of the detention.


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