Tulzapurkar, J. -
(1.) By this petition Ibrahim Ahmad Batti, the detenu herein, is seeking to challenge the detention order dated 1st July, 1982 issued by the respondent No. 1 (State of Gujarat) under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'the COFEPOSA') and praying for a writ of habeas corpus directing his release after quashing the game.
(2.) On 15th April, 1982, the Custom Officers raided Bungalow No. 3, Sweta Park Society, Bhuderpura, Ambawadi. Ahmedabad, allegedly belonging to the petitioner but standing benami in the name of Rekhaben Champaklal Sheth and during the search that followed in the presence of the petitioner and one Hasmukh Prabhudas Sharma contraband comprising 700 pieces of gold with foreign markings weighing 7000 tolas, radios, camera, video cassette recorder, colour T.V., synthetic fabrics, crockery. etc. of considerable value and Indian currency of Rs. 72,766 were recovered, the said gold and other articles 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 his co-conspirators. During the 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 (1) 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 along with 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:
"..............although at the date when the detention order was passed there was sufficient cause for reaching the subjective satisfaction that it was absolutely necessary to detain the detenu under S. 3 (1) of the Act, the subsequent failure on the part of the detaining authority to supply the translations in Urdu of the grounds and documents relied upon was a clear violation of the constitutional mandate of Art. 22 (5) so as to vitiate the order of detention and hence, in our view, there exists no sufficient cause for the continued detention of the said detenu."
Following the above opinion. of the Advisory Board, the respondent No. 1 by its order dated 1st 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 retained in custody under the orders of any competent Court of law. However, on the same day i.e. 1st of July, 1982, the respondent No. 1 issued the impugned order of detention against the petitioner under S. 3 (1) of the COFEPOSA and, served it on him on 2nd July, 1982 whilst he was in judicial custody under Courts order in two cases, one under the Arms Act and the other under the Foreigners Act pending, against him and after taking him in custody again tinder. the impugned order detained him in Ahmedabad Central Prison under the COFEPOSA. This detention was effected "with a view to preventing him from smuggling goods and engaging himself in transporting smuggled goods and keeping smuggled goods". Grounds of detention running into 32 typed pages in English as well as translated in Urdu, together with copies of all the statements and documents, referred to and relied upon in the grounds, in original 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 made 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 his detention on several grounds.
(3.) Though counsel for the petitioner indicated three or four grounds on the basis of which he desired to challenge the impugned order, he pressed into service only one pertaining to the breach of the constitutional safeguards contained in Art. 22 (5), which. according 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 subjective satisfaction. the detaining authority (respondent No. 1) has committed breach of Art. 22 (5) read with Section, 3 (3) of the COFEPOSA, resulting in non-observance of the constitutional safeguards 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 statements incorporated, in the grounds by reference are required to be 'communicated' to the detenu, that is to say, are required to be brought home to him in the language he understands, Ordinarily within 5 days of his detention and only in exceptional circumstances and for reasons to be recorded in writing within 15 days from the date of his detention under S. 3 (3) of the COFEPOSA, in other words, the delay beyond 5 days is justifiable only in exceptional circumstances and for reasons to be recorded in writing, but in the instant case Urdu translations of the bulk of documents and statements incorporated in the grounds 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 was delayed up to 13 days without any exceptional circumstances obtaining in the case and without. recording any reasons, as neither 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 representation to satisfy the Advisory Board that no exceptional circumstances existed or that the delay in supply of Urdu translations that were given to him was neither reasonable nor justified. Counsel further urged that the explanation trotted out now at the hearing, namely, that due to Ramjan month translations in Urdu were not available earlier is no justification whatever for the delay that has occurred and hence the duty to communicate the grounds together with documents and statements in support thereof within prescribed time has been breached. In any case, Urdu translations of all the documents and statements referred to and relied upon in the grounds for reaching the subjective satisfaction have not been supplied to the petitioner at all and quite a few of such documents and statements, Urdu translations whereof have not been supplied at all, are relevant and material and are such as have influenced the mind of the detaining authority in reaching its conclusion about the necessity to detain the petitioner. In other words, mere service of the grounds in Urdu accompanied by copies of material documents and statements in English Hindi or Gujarati on the Petitioner on 7th July is no sufficient compliance of the duty to communicate contemplated by 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.;