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 RP Srivas tava and Ms section 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 31 read with section 2f of the 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 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 Rs373000 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 US Dollars and Indian currency of Rupees five lakhs sixtytwo thousand and two hundred Rs562200 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
The representation made by him dated 612 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 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 CP Tripathi on behalf of the detaining authority it was stated that Letter dated 1941986 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 1941986 of the petitioner addressed to the Collector of Customs Customs House New Delhi together with a list of persons along with the reply dated 1161986 of the Collector of Customs to the petitioner was placed before the detaining authority
 The list of documents does not mention the letter dated 1161986 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 2841986 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 2841986 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 236
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 236
1986 to the detenu was not in reply of the detenu s letter dated 284
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 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 vs District Magistrate Cuttack  Anr  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   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 225 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 vs Commissioner and Secretary Government of Kerala  Ors 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 when there is a failure to comply with those requirements it becomes difficult to sustain the order
See  AIR 1975 SC 1513  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 1291986 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
PSS Petition allowed


Summary:
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 s31 read with s2f of the 
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 not sent to the Advisory Board in good time
Allowing the writ petition the Court HELD 11 The requirement of law within the provisions of article 225 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 12 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 vs District Magistrate Cuttack  Anr  and Prakash Chandra Mehta vs Commissioner and Secretary Government of Kerala  Ors   referred to
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