GUPTA, J. - (1.) THIS habeas corpus petition under Article 226 of the Constitution of India has been put in on behalf of Raheem Khan who has been detained under Sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) vide order dt. 10. 9. 92 passed by Shri D. D. Sud, Dy. Secretary, Home (Security) Rajasthan, Jaipur.
(2.) THE detention has been called in question mainly on the ground that (i) the detention order Anx. 1 was passed after delay of nearly six months from the alle-ged seizure of the 250 foreign marked gold biscuits from a bag held by the petitioner on 20. 3. 1992, (ii) the detenue was already in custody and, therefore, there was no justification for passing the detention order, (iii) the detenue is illiterate and he was not read over and explained the grounds of detention and, therefore, he could not make effective representation; (iv) the detention order was served after a periodof 4-1/2 years and no explanation has been given for the inordinate delay caused in the service of order of detention, and (v) the detention order was passed by the Dy. Secretary to the Government whereas such power could be exercised by the Secretary to the Government. An affidavit has been filed in support of the petition. Respondent No. 2 in his reply justified the detention of Raheem Khan. Itwas averred that the detenue was arrested by the police on 20. 3. 92 under Sec. 3/6 of I. P. P. R. and under Section 307 IPC and he was subsequently arrested on 11. 4. 1992 under the Customs Act whereupon proposals for his detention under the COFEPOSA Act were sent to the headquarters on 17. 6. 1992 at Jaipur and the orders were issued by the Government of Rajasthan on 10. 9. 1992, and thus there was noinordinate delay in issuing the detention order. Regarding the averment in the petition that the petitioner was illiterate and grounds of detention were not read over and explained to him, it was averred that the Superintendent, Central Jail has not been made party who could alone give suitable reply to the averments in this regard. For the delay caused in the service of the detention order, it was stated thatthe detenue was hiding in Pakistan and 78 attempts were made to arrest him during the period November, 1992 to November, 1996 but as he was in Pakistan he could not be arrested and the order could not be served. Respondent no. 1 did not file reply to the petition. Shri Jasmatia, Additional Advocate General chose to adopt the reply filed by the respondent no. 2. We have heard the learned counsel for the parties. Mr. Mehta confined his arguments to two grounds only; (i) the grounds of detention were not read over the explained to the detenue and, therefore, he was unable to make effective representation and (ii) the detention order was served after a period of 4-1/2 years and no explanation has been given of this delay.
(3.) MR. Sunil Joshi appearing on behalf of respondent no. 1 contended that the detenue did not request the jail authorities to explain the detention order and, therefore, he cannot raise this objection in these proceedings. He pointed out that the detention order as well as the grounds were recorded in Hindi and the detenue has not pleaded that he did not understand Hindi and, therefore, the detention orderis not liable to be struck down on this ground. His further contention was that the detenue chose to remain underground and he even did not appear in the case pending against him in the court of Special Judicial Magistrate (Economic Offences), Jaipur and, therefore, it ws not possible to serve the detention order on him. Mr. Jasmatia, learned Additional Advocate General contended that the detention order does not suffer from any infirmity. He submitted the file of the detenue maintained in the Central Jail Jodhpur to establish that the detention order was read over and explained to the detenue. We have given the matter our thoughtful consideration. The first question to be determined is whether the detenue is illiterate person and he could not read and understand the grounds of detention. In the petition it has been stated that the petitioner is an illiterate man. Affidavit has been filed in support of the averments made in the habeas corpus petition. This fact has not been denied in the reply filed by the respondent no. 1. There is therefore no escape from this conclusion that the detenue is an illiterate person. ;