JUDGMENT [ENTITY], J.
1. In this habeas corpus petition the petitioner has challenged the order of detention of [ENTITY], dated 16th September, 1993 passed by the Joint Secretary, Ministry of Finance, Government of India, Department of Revenue, New Delhi under [SECTION] of the [ACT] (hereinafter referred to as "the Act") in the matter of alleged violation of detenu's rights under [SECTION], [SECTION] & [SECTION] of the [ACT] and [SECTION] of the Act and [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT].
2. The facts giving rise to the filing of this petition briefly stated, are that the petitioner, a resident of Ajmer, is engaged in the trade of crushing and grinding minerals. It has been contended in the petition that on 28-3-1995 the petitioner received a telephonic message at Ajmer to the effect that at about 8.00 a. m. on the said day his uncle [ENTITY] has been arrested from his house at Palanpur by Customs Authorities. He was further informed that the Customs Authorities had taken [ENTITY] to Jodhpur. On the following day, i.e., 29-3-1995 at about 10.00 p.m. the petitioner was able to locate his uncle in city Kotwali, Jodhpur and was allowed to meet him through a common friend at the police station. During the meeting his uncle informed the petitioner regarding the facts and circumstances leading to his arrest and detention under the Act. His uncle showed him the detention order, the grounds of detention and some documents which the Inspector C. I. D. (Crime), Palanpur had earlier handed over to [ENTITY]. [ENTITY] wanted to pass on the detention order and accompanying documents to the petitioner but the police authorities did not permit the same. [ENTITY] (hereinafter referred to as the "detenu") asked the petitioner to challenge his detention by filing habeas corpus petition before this Court. The jail authorities, Central Jail, Jodhpur permitted the detenu to pass on the detention order and accompanying documents to his son [ENTITY]. The latter thereafter passed on the detention order, the grounds of detention and other documents to the petitioner. It is the detention of detenu which has been challenged by the petitioner herein on the following grounds inter alia:
(a) That the order of detention has been passed in complete disregard of the statutory provisions of [SECTION] of the Act,
(b) That the Joint Secretary to the Government of India was not competent to pass the order of detention Annexure 1,
(c) That the petitioner has reasonable apprehension that the final decision to detain the detenu under [SECTION] of the Act was taken by higher authorities of the Central Government other than the Joint Secretary and as such the Joint-Secretary was not competent to act as Detaining Authority. The Rules of Business of Government of India do not permit the decision to detain the detenu to be taken by the Joint Secretary to Government of India.
(d) That the english version of the detention order Annexure 1 is at complete variance with the Hindi translation thereof contained in Annexure 2 which has resulted in gross confusion to the detenu as to whether he is required to represent against the act of actual smuggling or against the act of dealing/ smuggled goods'? As a result of this, the detenu has been deprived of fair opportunity in preparing effective representation against impugned order of detention,
(e) That the detenu had also submitted representations to various authorities including. His Excellency the President of India, Hon'ble Prime Minister and other functionaries but the same have not been considered.
As per the detention order in english, detenu has been detained with a view to prevent him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in concealing and keeping smuggled goods in future. It has been contended in the petition that the purport of detention of the detenu as per english version is covered by sub-clauses (iii) & (iv) of subsection (1) of [SECTION] of the Act, while on the other as per the hindi version, Annexure 2, detenu has been detained with a view to prevent him from smuggling and from concealing, transporting and keeping smuggled goods.
3. It has been contended in this regard that as per the hindi version, the detenu has been detained under the provisions of sub-clauses (i) & (iii) of subsection (1) of [SECTION] of the Act. Thus, as per Annexure 1 the detenu was required to be detained with a view to preventing him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in concealing and keeping smuggled goods in future, whereas according to hindi version, Annexure 2, it was necessary to detain the detenu with a view to preventing him from smuggling goods and concealing smuggled goods/transporting/keeping the smuggled goods in future. The difference between english version and the hindi version of the detention order is to the effect that in english version there is specific mention of the words "otherwise than by engaging in concealing and keeping smuggled goods in future", whereas as per hindi version the words Hkfo"; esa eky dh rLdjh djus rFkk rLdfjr eky dks Nqikus@ijhogudjus@vFkok j[kus esa fyIr xfrfof/k;ka ls fuokfjr djus ds mn~ns'; ls vkns'k fn;k tkuk vo';d gS A are incorporated. Thus, the difference between the two versions is to the effect "engaging in smuggling of the goods" is missing from the english version but in hindi version it is specifically mentioned" to prevent the detenu from smuggling or concealing the smuggled goods, transporting or keeping the smuggled goods in future."
4. Pointing out the difference between english and hindi versions of the detention orders it was contended by Shri [ENTITY], learned counsel for the petitioner that in view of the variance between the said two versions of the detention order, the petitioner was deprived of a fair opportunity to make effective representation to the Detaining Authority as the detention order has been passed in complete disregard of the provisions of [SECTION] of the Act. It was further contended by Shri [ENTITY] that authorisation under [SECTION] of the Act is only with a purpose of authorising a subordinate functionary in the hierarchy of Government of India to issue the detention order. With regard to the actual authority to take final decision to detain the detenu is concerned, it vests only with the Central Government and the rules of business of the Central Government do not permit a decision to be taken by a Joint Secretary to the Government of India'. It was further contended by learned counsel for the petitioner that the english version of the detention order (Annexure 1) is at complete variance with hindi translation thereof contained in Annexure 2. As per the language used in english order, the detenu has been detained with a view to prevent him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in concealing and keeping smuggled goods in future. It was contended in this regard that the purport of detention as per english version (Annexure l)is covered by Sub-clause (iii) and (iv) of [SECTION] of the Act. On the other hand as per hindi version (Annexure 2) the detenu has been detained with a view to prevent him from smuggling and from concealing, transporting and keeping smuggled goods. Apparently as per hindi version the detenu has been detained under the provisions of Sub-clause (i) and (iii) of [SECTION] of the Act. Thus, as per Annexure 1, the detenu was not required to Be detained with a view to prevent him from smuggling goods but as per Annexure 2 he is being detained to prevent him from smuggling goods. Thus, apparent contradictions appearing in english and hindi versions of the detention order are highly prone to cause gross confusion in the mind of the detenu as a result of which he has been deprived of a fair opportunity to make effective representation against the act of actual smuggling or against the act of dealing in smuggled goods. On account of this apparent confusion the detenu has been seriously prejudiced in preparing effective representation against the impugned order of his detention. It has been further contended by the learned-counsel for the petitioner that the order of detention is based on grounds which are contrary to the statutory provisions of [SECTION] of the Act. According to the said provisions, a person can be detained either to prevent him from engaging in transporting or concealing or keeping smuggled goods or be can also be detained to prevent him from dealing in smuggled goods-otherwise than by engaging in transporting or concealing or keeping smuggled goods. If a person is being detained with a view to prevent him from transporting smuggled goods, lie can then be detained for dealing in smuggled goods otherwise than by engaging in concealing or keeping smuggled goods. It was thus argued by learned counsel for the petitioner that the impugned order of detention suffers from glaring discrepancies and is a result of non-application of mind at the instance of Detaining Authority. The detenu apprehending his arrest under the [ACT], had applied for grant of anticipatory bail before learned Sessions Judge, Jaipur City, Jaipur which was granted on 9-11-1992. Subsequently an application was moved on behalf of Union of India for the cancellation of his bail on 23-3-1993. The said application for cancellation of bail was dismissed by this Court-vide order dated 20-1 -1994. There was thus inordinate delay in moving for cancellation of bail by the Union of India. It was further contended by learned counsel for the petitioner that under the orders of the Court the detenu has been joining investigation from time to time and has never misused the liberty of bail granted to him by this Court.
5. With regard to the representations made by the detenu it was contended by the learned counsel for the petitioner that the first representation was made to the Joint Secretary, Central Government on 17-4-1995. The second representation was made by the detenu on 7-5-1995. The said representations were placed before the Advisory Board on [SECTION]-5-1995 when they were rejected vide Annexure 3 and 4. It was further argued that there was no adjudication upon the material placed before the Detaining Authority in absence of which the decision of the Detaining Authority is vitiated.
6. It was next contended that the detention order was sent for service on the detenu through the State Government of Rajasthan for being served on the detenu in Gujarat with its translation in vernacular accompanied by other documents. On 10-1-1994 Home Department, Government of Rajasthan sent the documents along with the detention order to the Government of Gujarat. There is no affidavit on the record to this effect from the Detaining Authority.
7. The aforesaid contentions advanced by the learned counsel for the petitioner have been controverted in the reply to show cause notice filed on behalf of the respondents. It has been contended by the respondents that the detention order has been passed under [SECTION] of the Act and Shri [ENTITY], the then Joint Secretary to the Government of India was duly authorised to issue the order of detention to the detenu under [SECTION] of the Act. Gazette Notification was also issued by the Government of India which empowered the Joint Secretary to issue the detention order vide Annexure R/2. Thus, the Detaining Authority was fully empowered to pass the detention order of the detenu. Further the rules of business are not applicable in the present case in view of the specific rule in COFEPOSA. It has been further contended in the reply that a representation was also made by the nephew of the detenu which was dismissed by the Finance Ministry and communicated to the petitioner vide Annexure R/3.
8. With regard to the variance between hindi and english versions of the detention order, it has been pointed out by the respondents that there is no such variance and the contents of the detention order R/l and translation thereof has been fully understood by the detenu. It has been contended that the said ground has been taken by the petitioner with a view to fulfill the formalities of lacuna of law; whereas no such lacuna exists in the said detention order. It has been further contended that the detention order passed by the competent authority is in accordance with law and does not require any interference by this Court.
9. In order to judge the veracity of the aforesaid contentions advanced by the learned counsel for the parties at the bar we had summoned the original record from the respondents for our perusal and satisfaction. During the course of hearing all the relevant documents on the record were perused by us. We are satisfied that there is variance between the aforesaid two versions of the detention order which, in our considered opinion, has resulted in depriving the detenu of fair opportunity to make effective representation against his detention. We are further of the opinion that' since proposal for detention of the detenu was made at Jodhpur by the Addl. Collector, Jodhpur and then sent to Delhi for being placed before the Detaining Authority, at Delhi, there is no affidavit of the Detaining Authority viz. the Joint Secretary, Ministry of Finance, New Delhi regarding the manner in which the aforesaid proposal was dealt with by the Detaining Authority at New Delhi. We are further of the opinion that the subjective satisfaction of the Detaining Authority in passing the order of detention of the detenu has not been explained on the record in absence of which the benefit should be extended to the detenu.
10. In support of his contentions the learned counsel for the petitioner has placed reliance on the following judgments:
[PRECEDENT], , [PRECEDENT], , [PRECEDENT], , [PRECEDENT] and [PRECEDENT].
In the matter of [PRECEDENT] (supra) the question which had arisen for consideration before the Apex Court was regarding communication of grounds of detention in the language known to the detenu. It was held by the Apex Court that since Marathi version of declaration under [SECTION] of [ACT] which was supplied to the detenu did not tally with its counterpart in english, it was held that the order of detention was vitiated, since it was not possible for the detenu to make an effective representation. The order of detention was, therefore, rightly quashed by the High Court and affirmed by the Apex Court.
In [PRECEDENT] (supra) the question which had arisen for consideration before the Apex Court was regarding the delay in dealing with the representation of the detenu by the Detaining Authority. In this case the representation was filed by the detenu on 12-2-1993, and was rejected by the Central Government on 7-4-1993. Since the delay was not explained, the order of detention was quashed. It was held by the Apex Court that once a representation is made, the detenu is entitled to the representation being dealt with expeditiously. If there is some ex facie delay the obligation is on the State to explain it. There is no question of a specific allegation to be made in the petition except pointing out by placing facts that there has been a delay which ex facie calls for an explanation and that obligation has to be discharged by filing a proper counter and explaining the delay. The Courts have not been unduly strict in insisting that each day's delay must be explained but it is obligatory on the part of the Government to show by filing a counter-affidavit that it had acted promptly in dealing with the representation. What is essential is that the Court must be satisfied that the officers dealing with the representation were not in different to the urgency of the situation of the detenu being in jail.
Likewise in the matter of [PRECEDENT], (supra), it was held by the Apex Court that where there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.
In the matter of [PRECEDENT], (supra) it was held by the Apex Court as under:
"It is settled law that the communication of the grounds which is required by the earlier part of [SECTION] is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause. A communication in this context, must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attribute to him. Such a communication would be there when it is made in a language understood by the detenu."
It was further held as under:
"If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served and the constitutional mandate in [SECTION] is infringed".
11. Applying the ration of the aforesaid decision of the Apex Court to the instant case on the question of delay in dealing with the representation of the detenu we find that two representations were made by the detenu to the Central Government on 17-4-1995 and 7-5-1995 respectively. The said representations were rejected by the Detaining Authority viz the Joint Secretary on 5-6-1995 and also by the Finance Minister on 16-6-1995. Earlier on 10-4-1995 representation was sent to the Chairman, Central Advisory Board, COFEPOSA of Delhi High Court which was rejected by the Central Advisory Board on [SECTION]-5-1995.
12. The above contentions advanced on behalf of the detenu have been controverted in the reply to show cause notice filed on behalf of the respondents by contending inter alia that the authority which had > passed the detention order viz the Joint Secretary to Government of India was duly authorised to issue the detention order of the detenu under [SECTION] of the Act. It has been contended that a gazette notification was also issued duly authorising the Joint Secretary to issue' the order of detention vide Annexure R/2 and hence the order of detention of the detenu cannot be said to be illegal. It has been further contended in the reply that the rules of business are not applicable in the present case in view of the specific rule in COFEPOSA which provide that the rules of business are not applicable in this case. With regard to the representations made by the detenu to various authorities, it has been contended that the same were duly communicated and dealt with by the said authorities. It has been further contended that there is no variance in the translation of the detention order (R/1) and the translation thereof had been fully understood by the detenu. The grounds have been taken by the petitioner merely to fulfill the formalities of lacuna of law, since there is no lacuna with respect to variance of the respective translations. It has been further contended that the detention order passed by the competent authority is in accordance with law and does not call for any interference by this Court.
13. In support of his contentions advanced at the bar, Mr. [ENTITY], learned counsel for the respondents placed reliance upon the judgment of the Apex Court reported in [PRECEDENT], , wherein the Apex Court held that the delay in dealing with the representations of the detenu is by itself not a vitiating factor, and if the delay is satisfactorily explained, the detention order cannot be said to be vitiated on the ground of delay. It was further held that the sufficiency of materials available to the detaining authority is not to be examined by the Court. The Court cannot examine the probative value of the evidence available to the Detaining Authority. In our opinion this judgment of the Apex Cout is not applicable to the present case, since the question here is not regarding sufficiency of material available to the Detaining Authority, but the question is regarding variance between english version and its translated copy in vernacular as a result of which the detenu was deprived of fair opportunity in making proper and effective representation to the Detaining Authority as well as the order also stands vitiated on several grounds as referred to above.
14. After hearing learned counsel for the parties and after having examined their rival claims and contentions as well as ratio of the decisions of the Apex Court as referred to above, we are of the opinion that the impugned order of detention, dated 16-9-1993, passed by the Government of India, Ministry of Finance, Department of Revenue, New Delhi under [SECTION] of the Act deserves to be quashed and set aside.
15. As a result of the above discussions, the habeas corpus petition is allowed and the impugned order of detention, dated 16-9-1993, passed in [CASE NUMBER] against the detenu [ENTITY] is accordingly quashed and set aside and it is directed that the detenu be set at liberty forthwith unless wanted in any other case.