SUNIL FULCHAND SHAH Vs. UNION OF INDIA
LAWS(GJH)-1988-4-10
HIGH COURT OF GUJARAT
Decided on April 29,1988

SUNIL FULCHAND SHAH Appellant
VERSUS
UNION OF INDIA Respondents




JUDGEMENT

J.P.DESAI - (1.)Mr. M. G. Karmali who appears for the petitioner drew out attention to ground (vi) of challenge at page 12 of the petition and submitted that no affidavit was filed on behalf of the Central Governrent in this regard. He submitted that that was nothing on record to show as to what action was taken by the Central Government after the report was submitted by the State Government as required by Sec. 3(2) of the COFEPOSA and therefore the continued detention of the detenu is vitiated. He submitted that the State Government was bound to disclose as to whether along with the report the State Government had forwarded copy of the order of detention the grounds and documents an the basis of which the impugned order of detention was issued against the detenu and that bulk of the documents is in Gujarati language while the officer dealing with the matter does not know Gujarati and therefore English translation is required to be sent and there is nothing on record to show as to whether the English translation of the documents was sent or not. The State Government has filed affidavit at page 77 to 81. Para. 7 of the said affidavit deals with this aspect. The said affidavit shows that on the the same day on which the order of detention was issued i.e. 20-10-1984 the report was submitted to the Central Government. It shows that the copy of the order of detention and the grounds of detention which were in English were forwarded to the Central Government along with the Gujarati translation of the same and the documents which were in Gujarati were also forwarded along with the report. The affidavit shows that translation was not submitted but the substratum of the said Gujarati documents was duly incorporated in the grounds of detention in English and that way the State Government has complied with the provisions of Sec. 3 of the COFEPOSA. There is no affidavit on behalf of the Central Government as to when the report was received and how it was dealt with. In view of this the file from the Central Government was called for and we have perused the said file. The said file shows that the matter was dealt with by one Mr. Dwivedi Competent Officer of the Central Government authorised to deal with such matters. It appears that the order of detention in English the grounds of detention in English and the documents which were in Gujarati were forwarded to the Central Government and Mr. Dwivedi after receiving the report under Sec. 3(2) perused the order of detention and the grounds of detention and was of the opinion that no ground was made out for receiving the order of detention. He also at the same time observed that if and when a representation was received from the detenu that representation will be considered. Mr. Karmali submitted that the documents were in Gujarati and the documents were admittedly not got translated in English either by the State Government or by the Central Government and therefore while considering the report under Sec. 3(2) Mr. Dwivedi could not have looked into the documents or considered them which were in Gujarati because Mr. Dwivedi does not understand Gujarati. The learned Counsel Mr. S. D. Shah appearing for the Union of India fairly conceded that Mr. Dwivedi does not know Gujarati. In fact an affidavit of one Mr. Bakshi Collector of Customs and Central Excise Rajkot has been filed which shows that he was serving at the relevant time as Deputy Secretary Gold Control Department of Revenue New Delhi and he used to explain to Mr. Dwivedi in English the contents of the documents which were in Gujarati lAnguage. This makes it clear that Mr. Dwivedi at that time did not know Gujarati. It is pertinent to note that Mr. Bakshi has made a general statement in the affidavit that he used to explain the documents which were in Gujarati to Mr. Dwivedi in English. lIe does not say that he explained these particular documents of this case to Mr. Dwivedi. But apart from this it will be difficult for anyone to remember the translation of so many documents which were in Gujarati. If Mr. Dwivedi was expected or bound to consider the documents which were sent along with the order of detention and the grounds of detention then certainly one would be inclined to say that the continued detention of the detenu will be vitiated because he could not have taken proper decision on the report without looking into the English translation of the Gujarati documents which were many in number. He could not have remembered the translation of each and every document assuming that Mr. Bakshi might have explained the contents of the documents to Mr. Dwivedi in English. But the question is whether Mr. Dwivedi was expected to go through the documents which wore forwarded to him along with the grounds of detention and the order of detention while considering the report received by the Central Government under Sec. 3(2) of the Act.
(2.)The submission of Mr. Karmali in this regard was two-fold. The first submission of Mr. Karmali was that the report includes not only the ground of detention but also the material on which the order of detention is passed and therefore the State Government was expected to forward the order of detention the grounds of detention as well as the documents on which the detention order was based. Mr. Karmali submitted that in that case English translation of the documents was required to submitted to the Central Government while submitting the report because if the officer dealing with the matter at that end did not understand Gujarati he will not be in a position to go through the documents
(3.)The second submission is that in any case Mr. Dwivedi was bound to get the documents translated in English before taking decision one way or the other on receiving the report under Sec. 3(2) and he having not done so the continued detention of the detenu is vitiated. As against this the learned Assistant Government Pleader Mr. J. U. Mehta for the State and Mr. S. D. Shah for the Union of India submitted that there was sufficient compliance of Sec. 3(2) of the COFEPOSA in the present case because not only the order of detention and the grounds of detention but even the documents were forwarded to the Central Government while forwarding the report. They submitted that the English translation of the documents was substantially incorporated in the grounds of detention and therefore Mr. Dwivedi who did not know Gujarati was in a position to go through the grounds of detention and decide for himself whether a case was made out for revocation or not. They submitted that looking to the provisions of the Act in question only a report was required to be submitted by the State Government to the Central Government and that the documents were not required to be forwarded at the time of submitting the report. They submitted that even the grounds of detention were not required to be separately submitted to the Central Government if the grounds were incorporated in the report to be submitted under Sec. 3(2) They drew our attention to sub-sec. (2) of sec. 3 of the COFEPOSA which reads as follows:
"When any order of detention is made by a State Government or by an officer empowered by a State Government the State Government shall within ten days forward to the Central Government a report in respect of the order."
They submitted that what is required to be submitted to the Central Government is only a report and nothing more. They fairly conceded that a mere intimation about the detention cannot be said to be a report as contemplated by sub-sec. (2) of Sec. 3 of the COFEPOSA. They submitted that if a comprehensive report showing the grounds of detention and mentioning the substance of the documents upon which the detention order is passed is submitted to the Central Government that will be sufficient compliance with sub-sec. (2) of Sec. 3 of the COFEPOSA and that the grounds of detention or the documents upon which the order is passed are not required to be submitted to the Central Government. We find much substance in this submission of the learned Counsel for the respondents because it is pertinent to note that while sub-sec. (2) of Sec. 3 of the COFEPOSA only makes a mention about the report to be submitted to the Central Government the corresponding provisions of the other Acts specifically provide that while forwarding the report the grounds of detention and the documents on which the detention order is passed have to be submitted to the higher authorities. Sub-sec. (3) of Sec. 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act 1980 says that when an order is made by either the District Magistrate or the Commissioner of Police detaining any person he has to report forthwith the said fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter. Similar provision is found in sub-sec. (3) of Sec. 3 of the Preventive Detention Act 1950 which also says that when an order is made by an officer of the State Government he has to forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter Similar provision will be found in sub-sec. (3) of Sec. 3 of the Maintenance of Internal Security Act 1971 In the National Security Act 1980 also similar provision will be found in sub-sec. (4) of Sec. 3 of the said Act. It thus appears that while in other Acts providing for detention a provision is made that together with the report the grounds of detention and other material have to be forwarded there is a clear departure so far as the COFEPOSA is concerned. In view of this we are in agreement with the learned Advocates for the respondents that so far as the COFEPOSA is concerned all that is required to be done by the State Government is to forward a report to the Central Government and nothing more. The report of course should be comprehensive and not a mere intimation and the learned Counsel for the respondents fairly concede that refer intimation cannot be said to be a report. In the present case the order of detention and the grounds of detention read together make out a comprehensive report because the grounds of detention contain substantial incorporation of the statements therein. The documents were in Gujarati and the officer who had to deal with was not in a position to read these documents and therefore we have to ignore the fact that the documents were forwarded while considering whether there was compliance with sub-sec. (2) of Sec. 3 of the COFEPOSA. We are of the opinion that so far as sub-sec. (2) of Sec. 3 of the COFEPOSA is concerned either the order of detention and the grounds of detention are to be forwarded along with the report or a comprehensive report is to be submitted containing the substance of the order of detention the grounds of detention and the substance of the material on which the order of detention is passed. That will be sufficient compliance with sub-sec. (2) of Sec. 3 of the COFEPOSA. In the present case that has been done and therefore it cannot be said that there was violation of sub-sec. (2) of Sec. 3 of the COFEPOSA in the present case.
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