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PETITIONER: TSERING DOLKAR

       Vs.

RESPONDENT: ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS.

DATE OF JUDGMENT18/02/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PATHAK, R.S. (CJ)

CITATION:  1987 AIR 1192            1987 SCR  (2) 323  1987 SCC  (2)  69        JT 1987 (1)   479  1987 SCALE  (1)367

ACT: Constitution of India, 1950: Article 22(5).     Conservation  of Foreign Exchange & Prevention of  Smug- gling Activities Act, 1974; SS. 2(f) & 3(1).     Preventive Detention--Grounds of detention and copies of documents not in language understood by detenu--Validity  of detention order. Practice & Procedure:     Detention order challenged on ground of  non-application of  mind--Return  to the rule--Utmost care to  be  taken  in making the affidavit of return.

HEADNOTE:     The husband of the petitioner, who is of Ladakhi origin, was  found by the Customs authorities in possession of  con- siderable quantity of gold with foreign markings and  Indian currency.  A large number of gold pieces of foreign  origin, Indian currency and US dollars were also recovered from  his residence.  He failed to produce the relevant papers  though he  claimed  these articles. He admitted  the  recovery  but maintained that he held the articles for a third person.     The  detaining  authority  relying  upon  the  materials available in the proceedings before the Customs  authorities made an order of detention under s.3(1) read with s.2(f)  of the  Conservation  of  Foreign Exchange  and  Prevention  of Smuggling  Activities Act, 1974. The grounds in  support  of that  order and copies of 17 documents were supplied to  the detenu alongwith it. The representation made by him  against detention was rejected by the Advisory Board.     In  the writ petition under Article 32 of the  Constitu- tion it was contended for the petitioner that the detenu has been denied a fair and adequate opportunity of  representing against his detention in as much as the grounds of detention and the copies of documents accompanying 324 the  grounds  were furnished in Tibetan language  while  the detenu  knew only Ladakhi, that copies of all  the  material documents  shown in the list were not supplied to him,  that the  order was vitiated as the detaining authority  did  not apply  its  mind to the relevant papers  before  making  the impugned order, and that the representation made by him  was

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not sent to the Advisory Board in good time. Allowing the writ petition, the Court,     HELD:  1.1 The requirement of law within the  provisions of Art. 22(5) of the Constitution is that the detenu has  to be  informed  about the grounds of detention in  a  language which  he understands. The fact that the detenu’s wife  knew the language in which the grounds were framed did not satis- fy  the legal requirement. This denied to the detenu a  fair and adequate opportunity of making an effective  representa- tion against his detention. [329D-E]     1.2  In the matter of preventive detention, the test  is not  one of prejudice but one of strict compliance with  the provisions of the Act and when there is a failure to  comply with those requirements it becomes difficult to sustain  the order. [329G-H]     The requirements of law having not been met the order of detention  in the instant case, cannot, therefore,  be  sup- ported. [330C]     Hadibandhu  Das v. District Magistrate Cuttack  &  Anr., [1969]  1 SCR 227 and Prakash Chandra Mehta v.  Commissioner and  Secretary,  Government of Kerala & Ors., [1985]  3  SCR 697, referred to.     2.  The  respondents have acted in a casual  manner  and have  failed to realise what amount of care has to be  taken in  making a return to the rule in a matter involving  chal- lenge  to  preventive detention. In the  list  of  documents supplied  to the detenu alongwith the order of detention  in all 17 items were shown whereas in the record of the detain- ing authority produced before the Court 18 items in all were mentioned. A copy of the letter of the Collector of  Customs dated  June 11, 1986 in reply to petitioner’s  letter  dated April 19, 1986 was not included in the list of documents and supplied  to  the  detenu. Furthermore, the  letter  of  the Collector  of Customs dated June 23, 1986 to the detenu  was not in reply to the detenu’s letter dated April 28, 1986  as mentioned in the return. When the allegation was that  there was  no  application of mind in the making of the  order  of detention,  the  return  should have come  either  from  the detaining authority or a person who was directly connected 325 with  the making of the order and not by a person who  filed the  affidavit  on  the basis of the  record  of  the  case. [328D-E; 327A]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 670 of 1986. (Under Article 32 of the Constitution of India). Ram Jethmalani and Ms. Rani Jethmalani for the Petitioner.     G. Ramaswamy, Additional Solicitor General, R.P. Srivas- tava and Ms. S. Relan for the Respondents. The Judgment of the Court was delivered by     RANGANATH MISRA, J. By this application under Article 32 of the Constitution the wife of the detenu Wang Chuk assails the  order  of his detention under section  3(1)  read  with section  2(f)  of the Conservation of Foreign  Exchange  and Prevention  of Smuggling Activities Act,  1974  (hereinafter referred to as the "COFEPOSA Act") made on July 21, 1986  by the  Administrator  of  the Union Territory  of  Delhi.  The detenu  is of Ladakhi origin and has been residing at  Delhi for  some  time. The grounds served on him  along  with  the order  of detention stated that on March 18, 1986, the  Cus- toms  Authorities  on the basis of previous  information  in

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their possession intercepted the vehicle in which the detenu was  travelling and inquired of him if he was in  possession of contraband or smuggled gold. He answered in the  affirma- tive and disclosed that he was carrying smuggled gold packed in  a  piece  of cloth. At the Customs House  where  he  was taken,  36 pieces of gold with foreign markings Valued at  a little  more  than three lakhs  and  seventy-three  thousand rupees  (Rs.3,73,000)  were recovered from the  cloth  pack. When  the detenu failed to produce authority in  support  of the possession of it, the same were seized under the Customs Act as also the Gold Control Act. As a follow-up action, the residential  premises of the detenu were searched  and  from there 11 pieces of gold with foreign markings, 65 cut pieces of gold of foreign origin, fifteen thousand U.S. Dollars and Indian  currency of Rupees five lakhs sixtytwo thousand  and two hundred (Rs.5,62,200) were recovered. The detenu  failed to produce relevant papers though he claimed these articles. They too were seized.     The detenu admitted the recovery but maintained that one Puchung,  owner of Hotel Kanchan in Nepal owned these  arti- cles and 326 the  detenu held them for him on the understanding  that  as and  when Puchung asked for the whole or any part  of  them. the same would be delivered to him. Puchung had been  visit- ing  the detenu’s house now and then for the  said  purpose. The  detenu was arrested but was enlarged on bail.  The  de- taining  authority relying upon the materials  available  in the  proceedings  before the Customs  Authorities  made  the order  of detention. Along with the order of  detention  the grounds  in  support thereof were supplied  to  the  detenu. Copies  of  17 documents as indicated in Annexure  ’C’  were also supplied to him.     The  detenu made a representation against the  detention and the Advisory Board afforded a personal hearing to him on the  7th  and 9th of October, 1986. His detention  has  been confirmed.     In  response  to the rule, the respondents have  made  a return and in the affidavit justification for the order  has been given. Rejoinder has been filed by the petitioner.  Mr. Jethmalani  appearing  in support of the writ  petition  has advanced three submissions and they are:                 1.  The  detenu has been denied a  fair  and               adequate  opportunity of representing  against               his  detention  inasmuch  as  the  grounds  of               detention and copies of the documents accompa-               nying the grounds were not in English language               and  copies  thereof have  been  furnished  in               Tibetan  language while the detenu  knew  only               Ladakhi; and copies of all the material  docu-               ments shown in Annexure ’C’ were not  supplied               to him.                 2.  The  representation made  by  him  dated               6/12-9-1986 was not sent to the Advisory Board               in  good time and reached the Board either  on               the date of hearing or after the hearing which               spread over two days had begun; and                 3.  The order was vitiated as the  detaining               authority did not apply its mind to the  rele-               vant papers before making the impugned order.     Before  we  proceed to deal with the matter  on  merits, certain aspects which came to be noticed during the  hearing though not specifically pleaded, may first be indicated.     The  petitioner annexed to the writ petition a  list  of documents  marked as Exhibit ’C’ said to have been  supplied

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to the detenu along with the grounds of detention. In all 17 items were shown therein. 327 Learned  Additional  Solicitor  General  appearing  for  the respondents  produced the record of the detaining  authority during the hearing where in the office copy 18 items in  all were mentioned.     In  paragraph 4 of the counter-affidavit filed  by  Shri C.P.  Tripathi on behalf of the detaining authority, it  was stated that:               "Letter  dated  19.4.1986 of  the  petitioner,               addressed to the Collector of Customs, Customs               House,  New  Delhi, together with  a  list  of               persons, etc. was placed before the  detaining               authority  and  a copy of the  same  has  been               supplied to the detenu along with the  grounds               of detention." In  a  subsequent affidavit Shri Tripathi  stated  that  the correct contents of the said paragraph as per the record  of the respondents should be read as under:               "Letter  dated  19.4.1986  of  the  petitioner               addressed to the Collector of Customs, Customs               House,  New  Delhi  together with  a  list  of               persons  along with the reply dated  11.6.1986               of the Collector of Customs to the  petitioner               was placed before the detaining authority." The  list  of documents does not mention  the  letter  dated 11.6.1986 and the respondents’ learned counsel has ultimate- ly  accepted the position that a copy of that  document  was not supplied to the detenu.     In the later affidavit filed by Shri Tripathi on  behalf of respondents it has again been stated that:               "That similarly in the said referred  counter-               affidavit,  subpara  (ii) of page 5  reads  as               under:                        ’Letter  dated  28.4.1986  from   the               petitioner to the Collector of Customs,  along               with  affidavits of Smt. Tsering  Wang  Chuck,               Mrs.  Billa, Shri Nadak, Mrs. Pema,  Shri  Tse               Wang, Mrs. Kalsang Dolma, Mr. Teeman were also               placed  before the detaining authority. I  say               that  even  the reply of  the  above  referred               letter  from  the  Collector  of  Customs  was               considered by the detaining authority, a  copy               of which has also been supplied to the  detenu               along with the grounds of detention.’ 328 Whereas  the  correct contents of the said para as  per  the record of the respondents should read as under:- Letter dated 28.4.1986 from the petitioner to the  Collector of  Customs  along with affidavit of  the  petitioner,  Mrs. Billa,  Shri Nadak, Mrs. Pema, Shri Tse Wang,  Mrs.  Kalsang Dolma, Mr. Teeman were placed before the detaining  authori- ty.  Even  the .reply dated 23.6. 1986 of the  Collector  of Customs, to the detenu was also considered by the  detaining authority  and a copy of the same has also been supplied  to him along with the grounds of detention. ’’     It  is conceded by the learned counsel for the  respond- ents that the letter of the Collector of Customs dated 23.6. 1986  to the detenu was not in reply of the detenu’s  letter dated 28.4. 1986 as mentioned in the affidavit.     The  facts  narrated  above clearly  indicate  that  the respondents have acted in a casual manner and have failed to realise  what  amount of care has to be taken  in  making  a return  to the rule in a matter involving challenge to  pre-

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ventive detention. Mr. Jethmalani has rightly commented that when  the  allegation was that there was no  application  of mind  in the making of the preventive detention, the  return should  have come either from the detaining authority  or  a person  who  was directly connected with the making  of  the order  and not by Shri Tripathi who filed the  affidavit  on the basis of the record .of the case.     The  detenu has contended that he understands  only  La- dakhi language but he can hardly write, read or converse  in that  language.  Admittedly his wife who is  the  petitioner before us is a Tibetan refugee and apparently is  conversant with  both  Tibetan as also English. It is the case  of  the respondents  in  the  affidavit of Shri  Tripathi  filed  on January 13, 1987 that:               "It  is thus apparent that the  detaining  au-               thority while passing the detention order  has               fully considered all the 17 documents  running               to  pages 1 to 45 which have been supplied  to               and received by the detenu along with transla-               tion thereof in the Tibetan language as admit-               ted in the writ petition." 329 It  is not disputed that the law as laid down by this  Court requires the detaining authority to provide the material  to the detenu in a language which he understands in order  that an  effective  representation against his detention  may  be made.  A  Constitution Bench of this Court in  the  case  of Hadibandhu Das v. District Magistrate Cuttack & Anr., [1969] 1 SCR 227 has indicated:               "Mere oral explanation of a complicated  order               of  the  nature  made  against  the  appellant               without  supplying  him  the  translation   in               script and language which he understood would,               in our judgment, mount to denial of the  right               of being communicated the grounds and of being               afforded the opportunity of making a represen-               tation against the order." This  view has been reiterated in several decisions of  this Court, (See [1962] 2 Supp. SCR 918, [1969] 1 SCR 227, [1975] 2 SCR 215).     The learned Additional Solicitor General relied upon the feature  that  the  petitioner-wife knew  both  English  and Tibetan languages and an effective representation as a  fact had  been  made. There can be no two opinions that  the  re- quirement  of law within the provisions of Article 22(5)  of the Constitution is that the detenu has to be informed about the grounds of detention in a language which he understands. The  fact that the detenu’s wife knew the language in  which the grounds were flamed does not satisfy the legal  require- ment. Reliance was placed by the learned Additional  Solici- tor  General on a decision of this Court in Prakash  Chandra Mehta v. Commissioner and Secretary, Government of Kerala  & Ors.,  [1985]  3 SCR 679 in support of his  contention  that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the  documents accompanying the grounds were not in a language known to the detenu  the order would not be vitiated. There is  no  clear indication  of the test of prejudice being applied  in  that case.  On the facts relevant before the Court, a  conclusion was reached that the detenu was merely reigning ignorance of English and on the footing that he knew English, the  matter was disposed of. We must make it clear that the law as  laid down  by this Court clearly indicates that in the matter  of preventive  detention, the test is not one of prejudice  but one of strict compliance with the provisions of the Act  and

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when there is a failure to comply with those requirements it becomes  difficult  to sustain the order. (See AIR  1975  SC 1513, [1975] 2 SCR 832, AIR 1975 SC 245). The  remaining  contention of the petitioner  is  about  the represen- 330 tation  made  to the Advisory Board. It is a fact  that  the representation made on 12.9.1986 though received immediately thereafter in the office of the detaining authority had  not been sent to the Advisory Board until heating begun. But  in the  report  of the Advisory Board which has  been  produced before us during the hearing of the matter we find reference to the representation. In the absence of any clear  material as  to when exactly the representation reached the  Advisory Board  we  propose to accept the submission of  the  learned Additional  Solicitor  General that the  representation  was before the Advisory Board when the matter was heard and  the detenu was afforded an opportunity of personal hearing.     The net result is that the order of detention cannot  be supported  for  t.  he defects  and  shortcomings  indicated above.  We allow the application. The order of detention  is quashed  and  we direct that the detenu be  set  at  liberty forthwith. P.S.S.                                              Petition allowed. 331