Judgment:
Malik Sharief-ud-Din, J.
(1) The petitioner has challenged the validity of the detention order dated 13th of August 1987 pursuant to which he was detained on 13th of September 1987. This followed an incident dated 13th of January 1987 when the petitioner driver-cum-owner of truck No. Bel 2546, was intercepted and taken to Gopalganj. It was found loaded with large quantity of pencils, tiger head brand 3 cell torches and 72 pieces of battery operated flying Jet Planes Pan Am Boeing 744, all Chinese made. The detention order was made by the State Government of Bihar under Section 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short Cofeposa Act) with a view to preventing the detenu from transporting smuggled goods. The grounds of detention were also served upon the detenu within the time requisite.
(2) Mr. Mangat who appears for the petitioner has assailed the order of detention on a number of grounds. Without going into the merits or otherwise of the other contentions raised in the petition, this petition, in my opinion, will have to be allowed on the contention that while serving the grounds of detention on the detenu the detaining authority failed to inform the detenu that he has a right to be heard by the Advisory Board. In the present case the detention order having been made by the State Government the grounds of detention disclose that the detenu was informed that he has a right to make a representation to the State Government. He was also informed of the authority to whom he could make this representation. The grounds of detention apart from mentioning the details of the incident and the recoveries made from him and apart from the fact that he has a right to make the representation to the detaining authority does not spell out anything more. The contention of Mr. Mangat, thereforee, is that having failed to inform the detenu that he has a right to be beard by the Advisory Board his constitutional safeguard under Article 22(5) has been infringed.
(3) SUB-SECTION (3) of Section 3 of Cofeposa Act clearly lays down as under:
'(3)For the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not latter than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.'
(4) Article 22(5) of the Constitution has been subject matter of interpretation by the Supreme Court in several judgments. In this regard I may make reference to the case of Wasi Uddin Ahmed v. The District Magistrate, Aligarh, : 1981CriLJ1825 . While interpreting Article 22(5) of the Constitution, the Supreme Court has made the following observations :
'IT is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. The words 'and shall afford' in Article 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, thereforee, imperative that the detaining authority must 'apprise' a detenu of his constitutional right under Article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board.'
(5) It would appear from the judgment that the word 'apprise' has been emphasised meaning thereby that it is mandatory for the detaining authority to convey to the petitioner that he has a right to make a representation to the detaining authority and has also a right to be heard before the Advisory Board. There observations of the Supreme Court leave me in no doubt that the state cannot wriggle out of its failure to comply with the constitutional requirement by raising the plea that no prejudice has been caused. Mr. Chaudhary relying on the case supra submits that having made there observations the Supreme Court has upheld the validity of the detention order in the case supra on the ground that no prejudice has been caused. Indeed, the Supreme Court upheld the detention order in that case for the reason that the petitioner therein was an enlightened politician and he appeared before the Advisory Board and filed the representation and was personally heard by it. It is a settled law that in matters of detention the only remedy available to a detenu is the failure on the part of the detaining authority to afford procedural safeguards to the detenu, and where these safeguards are not strictly followed the question whether there has been prejudice or not is of no help to the detaining authority. In such matters the test would be strict compliance with the procedural safeguards and not the prejudice.
(6) Mr. Chaudhary has invited my attention to para 16 of his counter affidavit in which it is stated that by an order No. 1981/C dated 26th of October 1987 which was served upon the detenu on 28th of October 1987 the petitioner was duly informed that his case has been referred to the Advisory Board and if he wished to appear before the Advisory Board he may send his willingness in writing to the State Government. I have already stated that this fact is not mentioned in the grounds of detention. This plea for the first time has been taken in the counter affidavit. The requirement of Sub-section (3) of Section 3 of the Cofeposa Act that the grounds of detention together with the fact that he has a right to make a representation and also a right to be heard before the Advisory Board should be conveyed to the detenu within 5 days or at the most within 15 days for reasons to be recorded. In the present case, this admittedly has not been done in the manner the law required it to be done by the detaining authority. Assuming that this communication has gone to the detenu and was served upon him on 28th October 1987 it would be much beyond the period afforded for this purpose by law to the detaining authority. This shows that the detenu was not informed about his right to be heard by the Advisory Board within the time provided by Sub-section (3) of Section 3 of the Cofeposa Act. On this ground alone, thereforee, the detention order is vitiated. The petitioner is allowed and the continued detention of the petitioner is quashed. The detenu shall be released forthwith unless otherwise required.