IBRAHIM AHMAD BATTI v. STATE OF GUJARAT & OTHERS

B The Judgment of the Court was delivered by ' TULZAPURKAR, J. By this petition lb~abim Ahmad Batti, the detenu herein, is seeking to- challenge the detention order dated !st . July, 1982 issued by the respondent No. 1 (State of Gujarat) under s. 3 '( 1) of the Conservation of Foreign Exchange & Prevention of c Smuggling Activities Act, 1947 (for short, 'the COFEPQSA') and praying for a ·writ of habeas corpus directing bis release after qua- sliing the same. ·

On 15th.April, 1982, ,the Custom Officers raided Bungalow ~o; 3, Sweta Park Society, Bhuderpura, Ambawadi, Ahmedabad, D allegedly belonging tel the petitioner but standing benami in the name of Rekbaben. Cbampaklal Sheth and during the search that followed in the presence of the petitioner and one Hasmukb Prabbudas Sharma contraband comprising 700 pieces of gold with foreign markings weighing 7000 tolas, radios, camera, Video cassette recor- E der, colour.T.V, synthetic fabrics, crockery, etc. of considerable value and Indian curreney of Rs. 72,766 were recovered; the said gold and other a1 ticles were seized under the ·reasonable_ belief that the same were smuggled goods liable to confiscation under the Customs Act,

1962. This seizure was followed by recording ·of confessional statements of the petitioner and bis co-conspirators. During the F follow up action· certain other premises were searched and further --~.contraband was seized. .BY an order dated 19th April, 1982 issued by the Respondent No. 1 under s. 3 (I) of the· COFEPOSA, the petitioner was detained in Ahmedabad Central Prison with.a view to preventing him from transporting smuggled goods and keeping smuggled goods. Grounds of detention dated 23rd April, 1982 G alongwith copies of statements and documents relied upon by the detaining authority were served on the petitioner. The.petitioner made a representation against the said order of detention, which .was considered by the Advisory Board, who opined thus :

H " ... although at the date when the det.ention order was passed there was sufficient cause for reaching the subjective '

' IBRAHIM V, GUJARAT, (Tulzapurkar, J.) 545 . satisfaction that it was absolutely necessary to detain the detenu under s. 3 (I) of the Act, the subsequent failure on th.e part of the detaining authority to supply the translations .in Urdu of the ground, and documents relied upon was·a dear violation of the ~onstitutional mandate of Art.· 22 (5) so as to vitiate the order of detention and hence, in our view, there exists no sufficent cause for the continued detention of said dr.tenu."

f•)llowing the above opinion of the Advisory Board, the res- pondent No. I by its order dated !st of July, 1982 revoked the . detention of the petitioner under s. 8 (f) of the COFEPOSA ,and directed him to ·be released forthwith, unless he was required to be , c retained in . custody .·under the orders of ·any competent court . of law. · However, on the same day i.e. lst«)f July, 1982, the respond~nt No. I issued the impugned order of detention against the petitioner under s. 3 (I) of' the COFEPOSA 'and served, it on him on 2nd July, 1982 whilst be was "in judicial c;ustody D under Courts order in . two cases, one under the Arms Act and the other under the Foreigners Act ·pending against him and after taking'' hiin. in custody again under the impugned order detained him in Ahmedabad Central prison under tbe COFEPOSA. This detention was effected "with a view .to preventing him from smuggling goods and engaging himself in transporting smuggled "; E goods and keeping smuggled goods:" Grounds of detention running into 32 typed pages in English· as well as translated in Urd.u, toge" tber with copies of all the statements and documents, .referred to and relied upon in the grounds; in regional language were served upon the petitioner on 7th July, 1982. Urdu translations· of the bulk of the statements and documents referred to and relied upon in the grounds were supplied to the petitioner on 15th July, 1982, though such supply did not include translations of all the statements and documents relied upon by the detaining . authority. The petitioner's representation mage through .his. Advocate on 5th of August 1982 having been rejected on 13th of August, 1982, the petitioner has filed this writ petition under Art. 32 of the Constitution challenging· bis ~etention on several grounds.

Though counsel for tJie petitioner indicated three or four - grounds on the basis of which he desired to challenge the impugned 9rder, he. pressed into service only one pertaining to the breach of H

546 SUPllEMB COURT RB'PORTS (1983] ! S.C.R. I A the constitutional safeguards contained in Art. 22 (5), which accor· ding to him, was sufficient to quash the impugned order. According to counsel in the matter of supply of Urdu translations of documents and statements referred to and relied upon in the grounds by the detaining authority for the purpose of arriving at the requisite sub- jective satisfaction, t~ detaining authority .(respondent No. I ha; B committed breach of Art. 22 (5) read with · section 3 (3) of the COFEPOSA resulting in non-observance of the constitutional safe- guards conferred on the detenu and therefore, the impugned order was liable to be set aside. He pointed out that.the grounds together with all the documents and staiements )ncorporated in the grounds by reference are required to be 'communicated' to the detenu; that is to c say, are required to be brought home to hiin in the language lie understands, ordinarily .within S days of his detention and only in exceptional circumstances and ·for reasons fo be recorded in writing within 15 days from ·the date of his detention under s. 3 (3) of tlie COFEPOSA, in other words, the delay beyond S days is justifiabie only in exceptional circumstances and for reasons to be record.ed in .D writing, but in ·the instant case Urdu translations of the bulk of documents and statements i!Jcorporated in the ground and relied upon· by the detaining authority in reaching the requisite subjective · satisfaction were not supplied to the detenu within the normal period of 5 days but the supply thereof \vas delayed upto 13 days without any exceptional circumstances obtaining in the case and E without r_ecording any reasons, as neitlier the existence of exceptional circumstances nor the fact .whether the reasons had been recorded in writing was communicated to the detenu. Counsel urged that the petitioner was deprived of an opportunity to make effective repre- sentation to satisfy the Advisory Board that no exceptiOnal circum- F stances existed or that the delay in supply of Urdu translations that . were given to him was neither reasonable nor justified. Counsel further urged that ihe. explanation trotted out now at the l:iearing, namely, that due to Ramzan. month transl~tors in Urdu were not available earlier is no justification whatever for the delay has occur- red and hence the dnty to communicate the. grounds together with G documents and statements in support thereof within prescribed time · has been breached. In any case, Urdu translations of all the docu- ·ments and statements referred to and relied upon in the ground&-' for reaching the. subjective satisfaction have not been supplied to. the petitioner at all and quite a few of such documents and statements,_ H Urdu translations whereof. have not been . supplied at all, are ~ele· ·'

JBRAHIM v. GUJARAT (Tu/zapurklJ'· J.) 547

vant and material and such as have influenced the· mind .of the A detaining authority in reaching its conclusion about the necessity to ,,, detain the petitioner. In other words, mere service of the gr-0unds in Urdu accompanied by copies of material documen,ts and state· · ments in English, Hindi or Gujarati on the petitioner on 7th July is no sufficient compliance of the duty to comm.unicate co,ntemplated , B b}" Art. 22 (5) according to counsel and he insisted that only on 15th July, 1982 'when Urdu translations of the bulk of documents and statements were served it could be said that the grounds were communicated to the detenu i. e. after 13 days of his detention without there being any exceptional circumstances and even on that date all Urdu translations were not furnished and this has happened notwithstanding the revocation of the earlier order precisely for · failure to supply Urdu translations. It is in this manner that the constitutional safeguards ·conferred on the petitioner under Art. 22 (5) read with s. 3 (3) ·of the COFEPOSA have been denied to him and, · therefore, the continued _detention of the petitioner is illegal. D

On the other hand, counsel for the responents have contended that no breach of Art. 22 (5) read with s. 3 (3) of the COFEPOSA has been committed as alleged. ·Counsel for rhe respondents pointed · out that after the earlier detention order was revoked· by the detain- ing autho,rity under ,s, 8 (f) of the COFEPOSA, the petitioner was E actually detained on 2nd July 1982 under the impugned order dt. 1st · July, 1982 and within 5 days of his detention the grounds in English language as well as in Urdu together with copies of all documents and statements referred to in the grounds in their regional· language were served on the petltioner·and what is more translations of the bulk of the documents and statements so referred in the grounds ..F were supplied to him on 15th July, 1982 i.e. within 13 days ot his detention, and, according to counsel, this delay in supply of the Urdu translations beyond the normal peribd of 5 days was due to excep- tional circumstances and reasons therefor have been recorded in writi11g as stated by Shri P. M. Shah, Deputy Secretary of the res- G pondent No. I in his affidavit filed on 10th of September, 1982. Shri Shah has stated in his affidavit that "time was taken as large number of documents were to be translated", while .an office noting. appro· ved and signed by the Home Minister (copy whereof was produced at the time .of hearing) indicates that on account of the month of . Ramza,n handful Urdu trn11slators w~r~ l'Vailable to do the \"(Or]>

548 SUPREME COURT REPORTS [1983l l S.C.R.

A from 12 noon to 4.00 p. m. and, therefore, as a special case Urdu translations were decided to be furnished to the detenu within 15 days as· prescribed by the COFEPOSA and accordingiy Urdu translations of bulk of documents and statements were furnished within 13 days of the detention. Counsel further contended that neither Art. 22 (5) nor s. 3 (3) of the COFBPOSA casts an obliga· B tion upon the detaining authority to inform the detenu anything • about the exceptional circumstances due to which delay might occur or about the fact whether the reasons have been recorded in writing or not and these are matters for the Court's satisfaction when any issue in that behalf is raised before it! As regard the non· supply of Urdu translations of some of the documents and statements referred to in c the grounds it was contended that most of these documents compri· sed statements of account, which were in English figures and some of them contained. English words in capital letters, and words in Hindi and Gujarati and the material on record clearly shows that the peti· tioner knows English figures, understands l;!nglish words in capital letters and can also converse in Hindi and Gujarati and as such no D prejudice was caused to him in the matter of making representation· against his detention. In these circumstances, counsel for the res· pondents contended that the impugned order could not be quashed on the ground suggested by the petitioner. ,

' Since breach of constitutional safeguards contained in Art. E 22(5) and s. 3(3) of the COFEPOSA has been the main ground for attacking the continued detention of the detenu as illegal, it will be desirable to consider the true meaning and import of these two pro- visions. Art. 22(5) of the Constitution runs thus :

"When any person is detained in pursuance of an F order made under any law providing for preventive deten· lion, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest oppor- tunity of making a representation against the order."

G Section 3(3) of the COFBPOSA provides as under:

''For the purposes of clause (5) of Art. 22 of the Con- stitution; the communication to a ·person detained in pur· suance of a detention order of the grounds on which the order has been made shall be made as soon as may be after tbe detentio11, but ordinarily not later than five days, and in

IBitAHIM v. GUJARAT (Tulzapurkar, J.) 549

exceptional circumstan_ces and for reasons to be recorded in writing, not later than fifteen ~ays, from the date of deten- tion."

The real import of cl. (5) of Art. 22 including the true Q\eaning of the expression "as soon as may be" occurring therein was \'xplained 8 by this Court in Abdul Jabar Butt v. State of Jammu & Kashmir(') After noting that s. 8(1) of the Jammu & Kashmir Preventive Deten- tion Act was nothing but a reproduction in substance of the provi- sions of cl. (5) of Art. 22 of the Constitution, this Court pointed out that the said provision imposes upon the detaining authority two duties, namely, (i) the duty of communicating 'to. the detenu the grounds on which the order bas been made and (ii) the duty of c affording him the carllcs.t opportunity of making a representation against the detention order and that the first duty is to be performed "as soon as may be", meaning thereby "within a reasonable time with an understanding to do it within the shortest possible time" the Court, however, pointed out that what could be regarded as D 'reasonable time' or the 'shortest ·possible tim_e' would depend upon the facts and circumstances of the case in which the question arises for decision, but the time predicated by the expression 'as soon as may be, was what was 'reasonably convenient' or 'reasonably requi- site'. In s. 3(3) of tlie COFf!POSA the concept of "reasonable time" or the "shortest possible time" or "reasonably requisite, time" pre- E dicated by the expression "as soon as may be" has ·been retained but .as explained in A.K. Roy' s( 2 ) case it is only with a view to meet the practical 'exigencies of administrative affairs that the detaining . .· authority is per~itted to communicate the grounds of detention not later than 5 days ordinarily and not later than 15 days if there are exceptional circumstance~ and that too with a safeguard of reasons F being recorded in writing. In other words s. 3(3) provides for the outer limits and the grounds of detention must, therefore, be furni- shed to the detenu ordinarily within 5 days from the date of deten- tion but in exceptional circumstances and for reasons to he recorded in writing the time for furnishing the grounds may stand extended G .but in any event it cannot be later than 15 days from the date of - detention. It is also clear that uriless the first duty imposed upon the detaining authority under Art. 22(5) is discharged within the

(ll [1957] SCR SI. (2) [1982] I s.c.c. 271.

550 . . SUPREME COURT REPORTS (1983) I S.C.R •

A prescribed time it would not be possible for the detenu .to ·exercise his right of. making a representation against his detention-a cor- responding right arising from the ·second duty c~st on the detaining · authority, namely, to afford the ·detenu the earliest ·opportunity of making su~h representation against his detention. ·

.B . . In Khudi Ram's(1) case this Court has explained what is meant by "grounds on which the order is made" in the context· of the aforesaid duties - cast upon the detaining ·authority and the corres- · ponding rights accruing to the·detenu under Art. 22(5). The Court has ruled_that in· that :context the expression 'grounds' 'does not . merely mean a recital or reproduction of a ground of satisfaction of .c the authority in the language of s. 3 nor is its connotation restricted to a bare statement of conclusion of fact but "nothing less than at! the basic facts and materials which. influenced the detaining .au tho~ · rity in making the order of· detention must be communicated to the · detenu" and "that is the plain requirement .of the firsfsafeguard in Art. 22(5)". Again, what would be compi:ised in "all the basic D ·facts and materials" has been elaborated by this Cciurt in Smt. Icchu Devi's (2 ) case where this Court has taketi the view that documents, . . ., ·statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its • subjective satisfaction get incorporated and become part of the • grounds of detention by' reference and the'right of the. detenu to be E supplied copies of such documents, statements and. other materials flows directly as a necessary corollary . from the' right conferred on the detenu to be afforded the ·earliest opportunity of making a'upre- sentation against the , detention. because unless the former right is available the latter cannot' be meaningfully exercised ·.and in that behalf the court has gone on to observe that "on a proper construc- tion of cl. (5) of Article. 22 · read with section 3, sub-section (3) · · of the COFEPOSA Act, it is necessary for the valid continuance of detention that; subject to clause (6) of Article 22, copies of the docu- . . . _. ments;statements and other materials relied upon in the grounds of ·G detention should be fur'oished to ,Jhe detenu alongwith the grounds· of detention or in any event not later than five days and in excep- tio~al circumstances and for reasons to be- recordCd iri writing. not ·later than 15 days from the· date· of detention. If this requirement of clause (5) of Articl.e 22 read with section 3, sub-section (3) is not ·H (I) [1975] 2 S.C.R. 832. (21 ! 9BOJ 4 s.c.c. s31,

, IllRAl!ll.! v. GUJARAT {'rulzapurkar, J.) · SSI . ' satisfied the continued detention of detenu would be . illegal and void." It may be stated that in Shalini Soni' s(') case this Court has taken the view that Smt. lc~hu Devi's case (supra) is a further development and elaboration of what wa! said e.arlier in Khudi Ram's case '(supra) and the Court confirmed the position that the grounds communicated to the detenu must reveal the whole of the factual' material considered by the detaining authority and not merely the - B inferences of !'acts a'rrived at by the detaining authority and that. ' - copies of documents to· which .reference . is made in the 'grounds' niust be supplied to the detenu as a part of the 'grounds'. \ • • Counsel for the' respondents,· however, referred to three deci- c sions of this Court, nam'ely, Ramchandra Kamat's(')case, Hansmukh's case (3) and Mst. Ummu Saleema's (') case, but in our view, none of these decisions detracts from or affects the validity of. the principle clearly enunciated in Smt. /cchu Devi's case . (supra) and confirmed in Shalini Soni's case (supra).·. In the first case the detaining autho- ' rity had raised a _contention that it was not incumbent , upon it to . D supply copies of all. the · documents relied upon in the grounds of .' · I detention alongwith the grounds within five days of the deteriiion be-· cause the grounds were sufficiently detailed so as to enable'the peti~ .· - tioner to make an effective representation• against the detention and · it was in that context that this Court' made observations to the effect . that "it may not be necessary for the detaining authority to stipply,. E 'eo'pies of all the documents relied upon in the grounds of detention· · at the time when the grounds are. furnished to ihe detenu but once , the detenu states that for effecti~e representation it is necessary that : · he should have copies of statements and 'document referred to in the - ..' .

grounds of detention it is the duty of the detaining authority to fur- nish them with reasonable expedition; the detaining authority cannot i .. I decline .to· furnish the copies of the documents on the ground that ·the grounds were suflicintly detailed to enable· the petitioner to make an effective representation."-· In fact, the real point decided was that once a demand was made by the detenu for copies of statements and_ doeuments relied. upon in- the grounds ·of detention for making an effective representation the detaining· authority was bound to supply G

co [1980J 4 sec S44. c2> [1980J 2 sec 210. 131 [19s112 sec 11s. <4l [1981] 3 sec 317, H

552 SUPRBMB COURT REPORTS (1983) 1 S.C.R. A the same with reasonable expedition and could not deny the same on the ground that sufficient details had been furnished in the grounds of detention. The earlier observation cannot be regarded as a ratio of the case. In the second case this Court made a distinc- tion between 'basic facts' and '.subsidiary facts' er 'further particulars of basic facts' and held that a little delay in supplying the• latter 8 category of facts was not fatal to the detention. In the third case all that th.i's Court decided was that failure to supply the documents and materials casually or passingly referred to in the course, of narration of facts in the grounds of detention and which are not c relied upon by the detaining authority in making the detention order would not render the detention illegal. Nobody has suggested that .J

docupients and materials to which casual or passing reference is made in the grounds and which have not influenced the mind of the detaining authority in making the order of detention should also be supplied to the detenu. The principle clearly enunciated in Smt. D /cchu Devi's case (supra) is that copies of all documents, statements and materials referred to or relied upon in the grounds of detention (meaning thereby which have influenced the mind of the detaining • authority in arriving at its subjective satisfaction about the necessity to detain the detenu) must be communicated to the detenu within the time prescribed under s. 3(3) of the COFEPOSA and that with- out this the right to make representation cannot be meaningfully exercised.

Apropos the true connotation of the expression 'communicate' • the latest decision of this Court in Lallubhai Jogibhai Patel's (')·case is significant. Io that case the detenu did not know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining' anthority stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu hut the Court held that that was not a sufficient compliance with the mandate of Art. 22(5), which requires that the grounds of detention must be communicated to the detenu. The Court observed: "Communicate" is a strong word which means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully Iv the detenu in writing in a language which . he understands. The whole purpose of communicating the 'grounds' to the detenu is to enable him to H ·• (I) [1981) 2 sec 427.

lllR.AillM v. GUJARAT (Tuizapurkar, i.)

make a purposeful and effective representation. If the 'grounds' A are only verbally explained to the detenu and nothing in writing is _, left with him, in a language which he underst~nds, then that purpose is not served, and the constitutional mandate in Art. 22(5) is infrin- ged." In taking this view the Court relied. upon its three earlier decisions, namely, Harikishan' s °(1) case, Hadibandhu Das's (') case and Smt. Raziya Umar Bakshi's (8) case. In Hadibandhu's case (supra) B this Court specifically held that mere oral explanation of the deten- , tion order which ran into 14 typed pages, without supplying the detenu a translation· in a script or language which he understood, amounted to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. It would thus follow that .if the grounds together c with copies of all documents,· statements and other materials incor- porated in the grounds by reference on which the detaining authority has relied are required to ~e communicated to the detenu under Art. 22(5) read with s, 3(3) of COFEPOSA within the prescribed time then not merely the grounds of detention but also the copies of all D incorporated documents, statements and other materials must be supplied to the detenu in a script or language which he understands and failure to do so' would amount to a b~each of the mandate con: tained in Art. 22(5) read with s. 3(3) of the COFEPOSA.

T,wo more decisions of this Court in the context of the obliga- E 'tion to· supply documents, statements and other materials referred to in the grounds of detention may be noted. In Kam/a Kanya/a/ Khushalani's (')case and Sunil Dutt's(') case this Court has taken the view that all the documents,,statements and other materials referred to or relied upon either in the order of detention or in the grounds of detention mnst be served upon the detenu akingwith the grounds. The Court has held that where the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex-hypothesiin existence· at the time of the issuance of the detention order and framing of th~ grounds, were not supplied to the deteim alongwith the grounds and consequently the detenu was ·prevented from making effective representation G, against his detention, the continued detention of the detei:m would

(I) [1962] Suppl. 2 SCR 918 .. (2) [1969] I SCR 227. (3) [1980J Suppl. sec 195. H (4) [1981J 1 sec 748. (5) A.J.R. 1982 S.C. 53.

SUPREME COURT REPORTS ' (1983) l s.c.R..

A be illegal inasmuch as such. non-supply of documeO:ts, statements and materials alongwith the grounds of detention amounted to a viola- tion of the safeguard available to the detenu under Art. 22(5). ' Two propositions having a bearing on the points at issue in the case before us, clearly emrge ·from the aforesaid resume of decided . B . cases : (a) all documents, statements and other materials incorpo- ' rated in the grounds by reference ·and which have influenced the mind of the detaining "authority in arriving at the requisite subjective satisfaction must lie furnished to the detenu along with the 'grounds or in any event not later than five days ordinarily and in the. excep- \ tional circumstances and for reasons to be recorded in . writing not•. c later than 15. days_ from the date of his detention and (b) an ·such t material must be furnished to him In a script or ·language which he unde~stands and fail~re. to do either of'ihe two things would amount to a breach of the two duties cast. on the detaining authority under

D Art. 22 (5) of the . Constitution. Relying upon· this legal position counsel for the petitioner urged before us that in the Instant case a ..... breach of the mandate contained in Art. 22 (5) read withs. 3 (3) of. the COFEPOSA is clearly involved because of three things that have happened, namely, (i) supply of Urdu· translations· of the .~bulk of documents and staiements incorporated in the grounds and . relied ·upon by . the detaining authority . was delayed 'beyond the· E normal' period of 5 days without any e~ceptional circumstances • obtaining in the matter, (ii) the alleged exceptional circumstances . purporting to justify the delay_ and the fact that the reasons had been ' recorded in writing were not communicated to the detenu which has prevented him from making 'effective representation · against his ·continued detention and (iii) Urdu _traslations of quite a few docu- F ments and statements incorporated in the grounds and relied upon by the detaining authority have not been ·supplied to him at all. As regards the first two aspects counsel relied upon two decisions of the. Patna High Court,' namely; Bishwa ·Mohan Kumar Sinha v. State of Bihar and Ors.(') and Bishwanath Prasad Keshari v. State of Bihar & Ors.(') where the Patpa High Court has ta:ken the view that not mere- . G ly should the. exceptional circumstance~ exist justifying the'delayed' supply of the grounds ,of detention but these should be communicated to the detenu to enable him to make an effective representation. Counsel urged that because of the .aforesaid failure the continued

·tt (I) ILR (1974) 53 Pat. 884. '(2) ILR, (1975) 54 Pat. 72.

IllRAllIM v. GUJARAT (Tulzapurkar, J.j SSS detention of the petitioner must be held to be illegal. We find considerable force_.in these sumbissions made by the counsel. for the , > petitioner.

. As regards the first aspect pressed into service by counsel for the petitioner the undisputed facts are that the impugned order of detention was.issued on !st of July, 1982, that the same was served B on the detenu on 2nd July, 1982; and immediately thereafter he was put under detention in Ahmedabad Central Pri~on; the grounds • ·of detention drawn up in English ·and translated in Urdu together with copies of ali documents and statem,ents incorporated in the ' grounds in original language (English and Hindi) were served upori the detenu on Jth July, 1982 i. e. within 5 days of his detention. Obvi- c ~·· ously, serving"'Copies of all the documents and statements in English · and Hindi on him on 7th July, 1982 was of no use and it was only on 15th of July, 1982 that Urdu translations of the bulk of such documents and statements were suppied to him. In other words effectively the grounds of detention together with b';ilk of documents. D and statements incorpotated in the grounds in the script or language understood by him were served or supplied on 15th July, 1982 which was beyond th.e normal period of five days. In any event supply of bulk of documents and statements incorporated in the grounds in the script or language understood by the detenu was delayed beyond the normal period of 5 days. The question is whether such delay was E justified by existence of any exceptional circu!"slances as required by s. 3 (3) of the COFEPOSA for in the · absence of exceptional J circumstances delay beyond normal period of five days would be a breach of the constitutional as well as the legislative mandate. Counsel for the respondents invited our attention to the affidavit of I • Shri P.. M. Shah Deputy Secretary (Home Department), Government, F of Gujarat filed on· 10th September, 1982 and an office noting app;oved and signed .by the Home · Minister which have set out the -·tiircumstances occasioning· the delay. ·In.his affidavit all ihat Shri Shah has. stated is "time was taken as a large number of documeuts were to be translated" while in ihe office noting dated 2-7-82 it has been stated : G

"It may be mentioned here on account of Holy month of Ramzan, Urdu translators are not available. Handful translators who are available have expressed that they would H t work from 12 noon to 4 p. m. because of Ramzan fasts

. . SS6 SUPREME COURT REPORTS (1983) 1 s.c.~ .. · they observe. Under· the circumstances it is proposed as under:

' (2) .. . 8 · (3) The Urdu translations of documents and other ·' materials referred to at (2) above may be 'furnished I < to the detenu as· soon as they are prepared by a batch of Urdu translators engaged for the purpose but not later than 15 days as prescribed in the Act. c .. as a special case on account of the utmost difficulties ·1 . pointed out above." ' '. Below this noting the . Home Minister has made his endorsement approving the proposal under the date 2·7-1982. In other. words, D .according to the respondents there were a large number of documents , ... requiring translation and on account of the Holy month of Ramian Urdu translators were not available and those handful ( translators who were available and were 'put 'on the job were prepared to work only from 12 noon to 4 p. m. because of Ramzan

E fasts they observed: Preventive detention is a serious invasion of a personal liberty and the normal method~ open to person charged with commission of any offence to disprove the charge or to prove .. . his innocence at the trial are not available to the person preventively detained and therefore in preventive detention . jurispruden9e what· ever little safeguards the constitution and the enactment authorising such detention provide assume utmost importance and must be . F strictly adhered to and one of such safeguards is that unless excep· tional circumstances really obtain the delay in supply of grounds of '· , detention as also the' documents and statements inq<>rporated . therein· • • by reference beyond the normal period of five days would be fatal. Looked at from this angle the aforesaid explanation ·given by the · . - detaining authority cannot, in our view, be regarded as constituting I

G · exceptional circumstances justifying the delay in the supply of bulk of documents and statements to the 'detenu in the script cir ianguage lieunderstood. In the first piace, on admitted facts in the case upon revocation of the earlier detention order on !st July, 1982 there. was •. 'no urgency to issue the impugned order of detention on the sa.me day H . or serve it ori the detenu on the following day, the·detenu was in . judical custody then in. other two cases, one under .the Arms Act and - the other under the Foreigners Act and no.bail having been granted

,mRAHIM v. GUJARAT (Tulzapurkor, J.) 557

to him there was no fear of his 'absconding from Ahmedabad, there A being no urgency the detaining authority could have kept all the material ready in Urdu and supplied the same to him immediately after detaining him second time. Secondly, the office noting does· not give particulars of how many Urdu translators were put on the job except vaguely stating 'handful translators' were available. B Thirdly the office noting clearly suggests that the translation job was entrusted to Urdu translators belonging to a particular ·community • who observed Ramzan fast, instead of. restricting the ohoice in this · manner additional Urdn translators who had nothing to do with the observance of Ramzan fasts could have been but on the job, but nothing is indicated whether and if so what efforts were made in . c that behalf. It is difficult. to swallow the proposition that the State Government (which is detaining authority here) with all its power and resources could not find requisite number of qualified persons to do that job so as to make Urdu translations ot the concerned docu- ments and statements avail,ble to the, detenu within the normal period of.five days. With the previous detention order having been vitiated on the very ground( greater vigilance · and expedition was D expected from the detaining authority. In all the facts and circum· stances it is impossible to hold that exceptionai circumstances 'obtained in the case justifying the delay and as' such the si.me consti- tutes a breach of the constitutional as well as the legislative mandate.

E On the second aspect the contention of counsel for the peti: tioner has been that the detaining anthority while supplying the Urdu translations of the bulk do.cuments and statements beyond the normal period of 5 days ought to have given indication to the detenu that the delay was caused due to exceptional circumstances and what the exceptional circup:istances were, as also of the fact that reasons F for the delay had been recorded in writing but · this was not done and this failure prevented tbe detenu from making effective represen-. talion against his detention. Counsel for the respondents, however, contended that neither Art. 22(5) nor s. 3(3) of the COFEPOSA casts any obligation or duty on the detaining authority to inform the detenu anything about the exceptional circumstances due to' G which delay might occur nor about the fact whether reasons have been recorded in writing or not and, according to counsel, these are matters for the Court's satisfaction when any issue in that behalf is raised before it. It is true that neither Art. 22(5) nor does the COFEPOSA contain any provision which casts such a duty upon H

SSS SUPREME dli.Jll.T RllPoRtS (19S3) I s.c.R. A the detaining authority in express terms; it is also true that the Court will of course go into and,' satisfy itself about these matters when any issue in that behalf is raised before it. But the question fs whether such a duty is cast.on the detaining authority by necessary implica- tion ? Does it or does it not flow from the right conferred upon the the detenu to make r_epresentation against his detention? Jn this B behalf it cannot be disputed that under the scheme of the COFE- POSA against his detention the detenu ha·s a right to make a repre- sentation to:.an authority which is superior to the detaining authority (e.g. to the State Government when the detai.ning authority happens to be an officer of that Government or to the Central Government where the detaining authority happens to be the State Government) c as well as to the Advisory Board' and such representation against his detention can be on merits of the grounds of detention as also for. failure on the part of the detaining authority to observe strictly the requisite safeguards and on satisfying the superior authority or the \ . Advisory Board on either count he is entitled to have his detention 1 D revoked or,quashed .. We have alreadly indicated above that one of such safeguards is that unless exceptional circumstances really obtain i_n a case the delay in supply of grounds of detention and/or the documents and statements incorporated therein by reference beyond the normal period of live days would be fatal to the continued deten-. tion of the detenu. In other words, the detenu is entitled to satisfy E either the-superior authority or· the Advisory Board that the delay that has occurred in the. supply of requisite material to him was not jusiified because exceptional circumstances did not exist or those put forward were unreal or invalid. Obviously, the detenu will not be in a position to do so if the alleged exceptional circumstances are not communicated ·to him. In our v'iew, therefore, a duty to inform .F the detenu about the ex'istence of exceptional circumstances and what th~y were for delay in supplying grounds of detention and/or docu- ments and statements incorporated therein arises by necessary impli- cation and flow from the right which is conferred upon the detenu to make representation against his . d'etention. In tbe instant case, for instance, if the alleged exceptional Circumstances were communicated. G to the detenu at the time of the delayed supply of the concerned docu- ments and statements in Urdu language he could have satisfied the superior authority or the Advisory Board that the exceptional circum- stances did not really obtain in the case and the delay had vitiated his detention. In other words, wi\at he has done before the Co~uit now, 8 he could have done before the superior authorities or the Advisory

IBRAHIM'· GUJARAT (Tulzapurkar, J.) 559

Board. For these reasons we approve of the view nltimately taken A by the Patna High Court in the .two decisions cited . above, particuc ' larly the decision in Bishwa Mohan Kumar Sinha's c1,1se (supra) where · both the aspects have been dealt with. In our view, therefore, the impngned failure in this case constitutes another breach of the safe- guard contained in Art. 22(5) read. with s. 3(3) of the COFEPOSA and vitiates the continued detention _of the petitioner . B • La~tly, _ Urdu transfations of ·quite a few documents and statements referred to in the grounds ·of detention and relied upon by the detaining authority were admittedly not supplied to the detenu at all and the only explanation given by the coun~el c for the respondents at the heating has been that most of these docu- ments (Urdu translations . whereof were not supplied) comprised statements of accounts which had figures in English with ·some English· words written in capital letters · and some documents were in Hindi and Gujarati and the record (statements of Rekha, her ' sister Indu and one Jayantilal Soni, all co-conspirators of the detenu, recorded during the investigation) clearly· shows that the petitioner knows English figures, underst.ands English words written in capital letters and can also converse or talk in Hindi and Gujarati and as ' such the non-supply of Urdu translations of these·_-documents cannot he said to have caused any· prejudice to the petitioner in. the matter of making a representation against -his detention. In our view, the explanation is hardly satisfactory and .cannot .condone the non• supply of Urdu translations of these' documents. Admittedly, . the petitioner is a Pakistani national and Urdu seems to he his mother tongue and a little· knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify t_he, denial of Urdu transla- F tions ,lo him of the material documents and "statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its ·subjective satisfacit;on. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot he brushed aside as false especially in view .of the fact that the same was accepted on the earlier occasion by the Advisory G Board who· had actually opined that failu"re to supply: Urdu transla- tions of grounds of detention and documents bad vitiated the earlier order of detention and following this opinion respondent No. I bad revoked the said order. Moreover, with the assist.ance of counsel H on either side we have ourselves gone through many of these docu- ments an<l statements and it is not possible to say that most-of them

560 . ' SUPRl!ME COURT REPORTS [1983] 1 s.c.a.

A a~e merely statements of account containing figures in English with English words written in capital letters. These documents recovered from three fiats in three different . societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, B silver, watches, etc., and comprise· accounts of such transac· . tions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are· material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the rion·supp)y c of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representa- tion against his detention and hence the safeguard contained in Art. 22( 5) is clearly violated.

Having regard· to the ab0ve discussion it is clear to us t~at the D continued detention of the petitioner would be illegal and we accord- >, ingly quash the same and direct him to be released forthwith.

S.R. Petition allowed.