TSERING DOLKARversusADMINISTRATOR, UNION TERRITORY OF DELHI & ORS.

                     TSERING DOLKAR                                             A
                            v.
      ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS.

                              FEBRUARY 18, 1987

            [R.S PA1HAK, CJ AND RANGANA1H MISRA, J.]                            B

            Constitution of India, 1950: Article 22(5).

rJ          Conservation of Foreign Exchange & Prevention of Smuggling
      Activities Act, 1974; SS. 2(f) & 3( 1).
                                                                                c
            Preventive Detention-Grounds of detention and copies of docu-
      ments not in language understood by detenu-Validity of detention
      order.

            Practice & Procedure:
                                                                                D
            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.

            The husband of the petitioner, who is of Ladakhi origin, was
j     found by the Customs authorities in possession of considerable quantity E
      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.
1r'                                                                           F
            The detaining authority relying upon the materials available in
      the proceedings before the Customs authorities made an order of deten-
      tion 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 G
      against detention was rejected by the Advisory Board.

            In the writ petition under Article 32 of the Constitution it was
      contended for the petitioner that the detenu has been denied a fair and
      adeqnate opportunity of representing against his detention in as much
      as the grounds of detention and the copies of documents accompanying      H

                                         323
    324 ,                  SUPREME COURT REPORTS             [1987] 2 S.C.R.

    the grounds were fiirnished in Tibetan language while the detenu knew
A
    only Ladakhi, that copies of all the material documents shown in the list
    were not supplied to him, tlilat 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.
B
          Allowing the writ petition, the Court,

          HELD: 1.1 The requirement of law within the provisions of Art.
    22(5) of the Constitution is tlilat 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 I:onguage in which the grounds were framed
c   did not satisfy the legal requirement. This denied to the detenu a fair
    and adequate opportunity of making an effective representation against
    his detention. [329D-E]

          1.2 In the matter of preventive detention, the test is not one of
D   prejudice bot 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 deten-
    tion in the instant case, cannot, therefore, be supported. [330C]
E
        Hadibandhu Das v. District Magistrate Cuttack & Anr., [1969] 1
    SCR 227 and Prakash Chandra Mehta v. Commissioner and Secretary,
    Government of Kera/a & Ors., [1985] 3 SCR 697, referred to.

         2. The respondents have acted in a casual manner and have failed
F to realise what amount of care has to be taken in making a return to the
  rule in a matter involving cllJallenge to preventive detention. In the list
  of documents supplied to the detenu alongwitb the order of detention in
  all 17 items were shown whereas in the record of the detaining 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
G 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 deteno 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
H from the detaining authority or a person who was directly connected
             TSERING DOLKAR v. U.T. OF DELHI [MISRA. J.]               325

with the making of the order and not by a person who filed the affidavit     A
on the basis of the record of the case. [3280-E; 327A]

        ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 670 of
1986.

        (Under Article 32 of the Constitution of India).                     B

        Ram J ethmalani and Ms. Rani J ethmalani for the Petitioner.

     G. Ramaswamy, Additional Solicitor General, R.P. Srivastava
and Ms. S. Relan for the Respondents.

        The Judgment of the Court was delivered by
                                                                             c
        RANGANATH MISRA, J. By this application under Article 32
of the Constitution the wife of the detenu Wang Chuk assails the order
..if his detention under section 3(1) read with section 2(f) of the Con-
servation of Foreign Exchange and Prevention of Smuggling Activities         D
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 deten-
tion stated that on March 18, 1986, the Customs Authorities on the
basis of previous information in their possession intercepted the vehi-      E
cle in which the detenu was travelling and inquired of him if he was in
possession of contraband or smuggled gold. He answered in the af-
firmative and disclosed that he was carrying smuggled gold packed in a
piece of cloth. At the Customs House where he wa~ 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          F
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 pre-
mises 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 sixty-        G
two 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 articles and            H
    326                   SUPREME COURT REPORTS            (1987] 2 S.C.R.

    the detenu held them for him on the understa_nding that as and when
A
    Puchung asked for the whole or any part of them, the same would be
    delivered to him. Puchung had been visiting the detcnu's house now
    and then for the said purpose. The detenu was arrested but was en-
    larged on bail. The detaining authority relying upon the materials
    available in the proceedings before the Customs Authorities made the
B   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.
c
          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:
D
          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 accompanying the
             grounds were not in English language and 'copies thereof have
             been furnished in Tibetan language while the detenu knew
E            only Ladakhi; and copies of all the material documents 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
F            spread over two days had begun; and

          3. The order was vitiated as the detaining authority did not
             apply its mind to the relevant papers before making the im-
             pugned order.

G          Before we proceed. to deal with the matter on merits, certain      JI
    aspects which came to be noticed dnring the hearing though not speci-     '-
    fically pleaded, may first be indicated.                                   .....

       The petitioner annexed to the writ petition a list of documents
  marked as Exhibit 'C' s~id to have been supplied to the detenu along
H with the grounds of detention. In all 17 items were shown therein.
                TSERING DOLKAR v. U.T. OF DELHI !MISRA, J.]              327

     Learned Additional Solicitor General appearing for the respondents
                                                                                A
     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. Ttipathi
     on behalf of the detaining authority, it was stated that:
                                                                                13
                "Letter dated 19.4.1986 of the petitioner, addressed to the
                Collector of Customs, Customs House, New Delhi, toge-
                ther with a list of persons, etc. was placed before the de-
                taining 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
                                                                                c
     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 to-              D
                gether 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 ultimately accepted the position      E
     that a copy of that document was not supplied to the detenu .

.U         In the later affidavit filed by Shri Tripathi on behalf of respon-
"'   dents it has again been stated that:



 •              "That similarly in the said referred counter-affidavit, sub-
                para (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
                                                                                F




                Wang Chuck, Mrs. Billa, Shri Nadak, Mrs. Perna, Shri Tse
                Wang, Mrs. Kalsang Dolma, Mr. Teeman were also placed           G
                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.'
                                                                                H
    328                   SUPREME COURT RE.PORTS            [1987] 2 S.C.R.

    Whereas the correct contents of the said para as per the record of the
A
    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. Perna, Shri Tse Wang, Mrs.
B                Kalsang Dolma, Mr. Teeman were placed before the de-
                 taining authority. 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 deten-
                tion."
c         It _is conceded by the learned counsel for the respondents 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.

D         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 preventive detention. Mr. Jethmalani has             !ii
    rightly commented that when the allegation was that there was no            I
    application of mind in the making of the preventive detention, the -
E   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 Ladakhi
F   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:

G              '"'It is thus apparent that the detaining authority while pas-
               sing the detention order has fully considered all the 17
               documents running to pages 1 to 45 which have been sup-
               plied to and received by the detenu along with translation
               thereof in the Tibetan language as admitted in the writ
               petition."
H
               TSERING DOLKAR v. U.T. OF DELHI [MISRA. J.]             329

    It is not disputed that the law as laid down by this Court requires the
r   detaining authority to provide the material to the detenu in a language
    which he understands in order that an effective representation against
                                                                            A

    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:
                                                                            B
                 "Mere oral explanation of a complicated order of the



l
                 nature made against the appellant without supplying him
                 the translation in script and language which he understood
                 would, in our judgment, amount to denial of the right of
                 being communicated the grounds and of being afforded the
                 opportunity of making a representation against the order."
                                                                              c
    This view has been reiterated in several decisions of this Court, (See
~   [1962] 2 Supp. SCR 918, [1969] 1SCR227, [1975] 2 SCR 215).

          The learned Additional Solicitor General relied upon the feature
    that the petitioner-wife knew both English and Tibetan languages and D
    an effective representation as a fact had been made. There can be no
    two opinions that the requirement of law within the provisions of
    Article 22(5) of the Constitution is that the detenu has to be informed

~
    about the grounds bf detention in a language which he understands.
    The fact that the detenu's wife knew the language in which the
    grounds were framed does not satisfy the legal requirement. Reliance E
    was placed by the learned Additional Solicitor General on a decision
    of this Court in Prakash Chandra Mehta v. Commissioner and Secret-
    ary, Government of Kera/a & 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 F
    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 feign-
    ing 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 G
    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, [1975] 2 SCR 832, AIR 1975 SC 245).

          The remaining contention of the petitioner is about the represen-   H
    330                   SUPREME COURT REPORTS           (1987] 2 S.C.R.

A   talion 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 hearing 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 mate-
B   rial 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.

C         The net result is that the order of detention cannot be supported
    for \he defects and shortcomings indicated above. We allow the appli-
    cation. The order of detention is quashed and we direct that the detenu
    be set at liberty forthwith.

    P.S.S.                                                Petition allowed.