P.K. Bahri, J.
1. This petition has been brought under Article 226 of the constitution of India read with Section 482 of the Code of Criminal Procedure, for issuance of a writ of habeas corpus or any other writ for quashing the order of detention dated July 11, 1988, passed by respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short 'COFEPOSA Act') and also the declaration dated August 4, 1988, issued under Section 9(1) of the COFEPOSA Act.
2. Facts leading to the passing of the impugned orders, in brief, are that on June 14, 1988, the petitioner had come in an Air India Flight No. AI 890 from Dubai enroute to Bombay and the flight had landed at the IGI Airport, New Delhi and the petitioner was stated to be occupying seat No. 22 B and as the petitioner was suspected to be carrying contraband like gold and watches, so he was asked in the presence of witnesses whether he was carrying such contraband to which he replied in the negative and as a result of rummaging of the said seat of the petitioner one polythene bag containing one packet wrapped with adhesive tape was found lying below the cushion of the seat and on opening the said packet the same was found to contain 12 gold bangles and 12 pieces of gold and six gold biscuits of foreign origin. The said gold was found to be of 24 carats purity weighing 1117.740 gms. of the value of Rs. 3,52,088/10P in local market and as the petitioner had no legal documents to show the lawful import of the said gold and also Indian currency worth Rs. 620 recovered from one of the concealed pockets of his shirt, the said articles were seized under Section 110 of the Customs Act on the reasonable belief that they were liable to confiscation.
3. In his voluntary statement recorded under Section 108 of the Customs Act, the petitioner admitted that about a fortnight ago, one Balbir Singh had come to him for getting his scooter painted and in conversation he learnt that the petitioner used to go to Dubai for bringing certain textiles for selling the same at Delhi and Balbir offered him air fare and free lodging and boarding in Dubai if petitioner was to bring gold for him from Dubai to India, and as such he went to Dubai and reached there on June 11, 1988 and as pre-arranged he stayed in Taj Mahal Hotel at Dubai and Balbir Singh left certain things besides the gold in question in one plastic bag and had left instructions that the petitioner was to conceal the said bag containing the gold under the cushion of his seat in the aircraft and at Delhi some person would board the plane and would call him by name and he was to hand over the said gold to the person who would be dressed in a jean and T-shirt and that person would recognise the petitioner by his seat number.
4. The first point raised in challenging the impugned orders, in brief, is that admittedly the passport of the petitioner was seized by the Customs authorities and is still lying with them and hence, the petitioner had been effectively prevented from indulging in smuggling and thus, the order of detention passed is punitive in nature and has been passed by the detaining authority without application of mind. Counsel for the petitioner in support of his contention has placed reliance on Ashok Kumar Jaggi v. Union of India and Ors. 1988(2) crimes 11, Naeem Ahmad Khan v. Union of India and Ors. 1988(2) DL 315, Dukh Bhanjan Singh v. The Administrator of Delhi and Ors. Criminal Writ No. 416/88, decided on January 19, 1989, Iqbal Singh v. Union of India and Ors. Criminal Writ No. 382/88, decided on December 12, 1988 and Mullatha Kam Koyatty v. Union of India and Ors. Criminal Writ No. 123/88, decided on July 6, 1988. All these cases have been decided by different Single Benches of this Court which support the contention of the learned Counsel for the petitioner. What has weighed with the Judges in deciding those cases was the argument that as soon as the order or detention is found to have been passed only with a view to prevent the detenu from indulging in smuggling, the seizure of the passport completely prevents such a detenu from smuggling and hence, the detaining authority is not justified in passing the detention order as it would amount to non-application of mind to a material fact. In the case of Dukh Bhanjan Singh (supra) support for this view was sought to be derived from Parmeskwar Lal Karel and Anr. v. Union of India and Ors. : 35(1988)DLT416 , a case decided by a Division Bench. I am afraid that the Division Bench had not confirmed the ratio laid down on this point, rather the facts before the Division Bench were different. In the said case, the detention order was passed not only for preventing the detenu from smuggling the goods but was also passed to prevent him from abetting in smuggling of the goods. The Division Bench held that even though the passport of the detenu had been seized even then that would not mean that the detenu cannot indulge in abetting in smuggling the goods. In that context the Division Bench distinguished the case decided by the Single Bench but that would not mean that the Division Bench had confirmed the ratio laid down in the Single Bench case that the mere fact that the passport stands seized would have the effect of preventing the detenu from smuggling the goods and thus, the detention order on that score would stand vitiated.
5. The learned Counsel for the respondents has vehemently argued that the mere fact that the passport had been seized does not mean that the detenu cannot in any case indulge in smuggling of the goods. He has pointed out that in view of the friendship treaty existing between India and Nepal, there is no necessity of any Indian to have the passport for visiting that country and a person whose passport stands seized to prevent him from smuggling can easily indulge in smuggling goods from Nepal, Such a person could also use fabricated passport for visiting other countries for smuggling the goods to India. At any rate, he has argued that it was the subjective satisfaction of the detaining authority as to whether a person whose passport has been seized or not, should be detained or not because if the detention order is based on some material showing that the detenu has indulged in smuggling then the said subjective satisfaction cannot be questioned by the court. He has pointed out that only the material facts which may sway the mind of the detaining authority in either passing or not passing the detention order have to be placed before the detaining authority and the only duty which was cast upon the sponsoring authority was to place the factum of seizure of passport before the detaining authority and it was in the realm of subjective satisfaction of the detaining authority to consider whether the detention order should or should not be made taking into consideration the said fact and other material appearing on the record.
6. The scope of judicial review of subjective satisfaction of the detaining authority came up for consideration in Raj Kumar Singh v. State of Bihar and Ors. : 1986CriLJ2042 , in which it was laid down that the court cannot substitute its decision if the executive authority or the appropriate authority acts on proper material and reasonably and rationally comes to that conclusion even though the court might not be in agreement with the same. It was emphasized that it is not for the court to put itself in the position of the detaining authority and to satisfy itself that untested facts reveal a path of crime provided these facts are relevant. It was also observed in this very judgment that while adequacy or sufficiency is no ground for a challenge, relevancy or proximity is relevant in order to determine whether an order of detention was arrived at irrationally or unreasonably. In the cited case, the detenu was alleged to be habitually committing or abetting the commission of offences and he was already in jail. The detention order was made keeping in view all these facts including the fact that the detenu was in jail. The detention order was upheld. This principle was laid down as far back as in 1951 in the case State of Bombay v. Atma Ram Shridhar Vaidya : 1951CriLJ373 . It was held that the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of inquiry of the court. It was also mentioned that the decision must be based on some grounds and there can be no satisfaction if there are no grounds. It was held that if the grounds on which satisfaction is arrived are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. In Shiva Ratan Makim v. Union of India and Ors. : 1986CriLJ813 , it was laid down that even a solitary incident of smuggling may subjectively satisfy the detaining authority for passing the detention order. It was held that merely because only one incident had come to light does not mean that it was detenu's maiden act of smuggling. In Smt. Asha Keshavrao Bhosale v. Union of India and Anr. : 1986CriLJ177 , the Supreme Court has reiterated the well known principle that the decision to be arrived at under the law by the detaining authority was subjective and it is not for the court test the adequacy of the material on which satisfaction was reached. It is true that under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act varied grounds have been enumerated and if an order of detention is passed for preventing the detenu from smuggling the goods then it cannot be sustained on the ground that the detenu might indulge in any other type of smuggling activity as mentioned in Section 3(1), i.e., dealing in smuggled goods or concealing the smuggled goods or transporting the smuggled goods. [See Criminal Writ Petition No. 45/82, Chain Lal Jain v. The Administrator, Delhi Administration, decided on July 8, 1982 by a Division Bench of this Court and also Smt. Sunita Sharma v. The Administrator, Delhi Administration, : 17(1980)DLT525 ]. The passport of the detenu stood seized. This fact was placed before the detaining authority. The detaining authority after taking into consideration the aforesaid fact and also other material facts reached the subjective satisfaction that it is a fit case for passing the detention order. The question which arises for decision is whether on such material a reasonable person could come to the conclusion or not that it is a fit case for passing the detention order? After all, it is not an impossibility that a person whose passport stands seized cannot, in fact, indulge in smuggling in future. The court is not to substitute its own subjective satisfaction with that of the detaining authority arrived at by the said authority on the relevant material placed before it. The legal questions of some importance do arise on this point - (i) where the detaining authority had reached the subjective satisfaction keeping in view all relevant material, could the court substitute its own decision (ii) whether no reasonable person could reach subjective satisfaction that the detention order should be passed on the sole ground that passport of the detenu had been seized when particularly the detenu is at large. It is, hence, desirable that these questions are settled by a larger Bench as these questions are likely to arise in a large number of cases in future.
7. The second challenge raised to the impugned orders by the learned Counsel for the petitioner is on the ground that the representation dated August 4, 1988, was made by the detenu to the detaining authority and the said representation was never put up before the appropriate authority, i.e., Central Government, as the same was the detaining authority under the COFEPOSA Act. Hence, that representation remains undisposed of till today. It is admitted fact that the representation was rejected by Sh. K.L. Verma, Jt. Secretary, who passed the detention order and who had admittedly the power delegated to him by the Central Government for passing the detention order under the COFEPOSA Act. The detenu had also made representation dated September 5, 1988, to the Central Government which admittedly had been considered and rejected by the Central Government. The question, which has been posed, is whether the representation which was made to Shri K.L. Verma, the officer who had passed the detention order, ought or ought not to have been placed before the Central Government for consideration? If it is to be held that the said representation although addressed to the officer, who passed the detention order, must have been placed before the Central Government then the inference is obvious that as that representation has not been considered till date by the Central Government, so the same remains undecided and the impugned orders are liable to be quashed on that score alone.
8. In State of Maharashtra and Anr. v. Sushila Mafatlal Shah and Ors. : 1989CriLJ99 , a case decided by two Hon'ble Judges of the apex court, it has been laid down that as the law stands the detaining authority is always the appropriate government, either the State Government or the Central Government, and if representation is made against the order of detention passed by the State Govt. then the State Government has the power to entertain such representation and decide the same and similarly, a second right of representation available to the detenu is to make the representation to the Central Government, but if the detention order is made by the Central Government then the representation can lie only to the Central Government. It was also held that the officer who is authorised to pass the detention order has no power to entertain any representation against that order and decide the same at his own level. This judgment has been followed by our Division Bench in Criminal Writ No. 384/88, Subhash Chander v. Union of India and Ors. decided on January 31, 1989. The crucial question which arises for decision is whether the officer who had passed the detention order has the power to revoke the said detention order or not? In Ibrahim Bachu Bafan v. State of Gujarat and Ors. : 1985CriLJ533 , a case decided by three Hon'ble Judges of the Supreme Court, this question came up for consideration specifically and after noticing Section 11(1) of the COFEPOSA Act wherein the words 'without prejudice to the provisions of Section 21 of the General Clauses Act, 1897' have been used to indicate that the power which is available to the officer concerned under the said provision stands preserved, the Supreme Court held that the officer who passes the order has the power to revoke or modify the said order. So, it was clearly laid down that the officer, who passes the detention order by virtue of Section 21 of the General Clauses Act, has the power to revoke the detention order. If that is so, the question which arises for consideration is whether this decision of the Supreme court delivered by three Hon'ble Judges still holds the field or not There is a recent judgment of the Supreme Court delivered by a Bench comprising of five Hon'ble Judges reported as : 1990CriLJ1810 , Smt. Triveniben v. State of Gujarat, where it has been held that there is hierarchy within the court itself where larger Benches overrule the smaller Benches. It was held that it is now not open to anyone to contend that the Bench of two Judges cannot be overruled by a Bench of three Judges and this should be regarded as a final seal to the controversy. A doubt was raised regarding the law whether a Bench comprising of three Judges can or cannot overrule the decision given by a Bench comprising of two Judges in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra : 1984CriLJ1909 ; on the ground that the Supreme Court sits in division of two or three Judges for the sake of convenience and the question which was posed in that case was whether a Divisional Bench, may be comprising of three Judges, could overrule a decision given by a Divisional Bench comprising of two Judges? After examining that case and the other cases dealing with this point, now it has been settled authoritatively by the Supreme Court that only a larger Bench can overrule the law laid down by the smaller Bench. Obviously the smaller Bench now cannot overrule the law laid down by a Bench comprising of more Judges. Hence, in spite of what has been laid down in a decision given by a Bench comprising of two Hon'ble Judges in the matter of Sushila Mafatlal Shah (supra), the law laid down by the Supreme Court in the case of Ibrahim Bachu Bafan (supra), a decision given by three Hon'ble Judges, would be considered binding under Article 141 of the Constitution of India. However, unfortunately this judgment given in the case of Ibrahim Bachu Bafan(supra) was not brought to the notice of the Hon'ble Judges deciding the case in Sushila Mafatlal(supra), and to the Division Bench of this Court deciding the case of Subhash Chander(supra). I may also make reference to A.R. Antulay v. R.S. Nayak and Anr. : 1988CriLJ1661 , where it has been laid down now authoritatively that there is a hierarchy within the court itself whereby decision of a larger Bench binds the smaller Benches and on that basis a larger Bench can overrule the decision of a smaller Bench.
9. Section 21 of the General Clauses Act reads as under:
Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
Section 11 of the COFEPOSA Act preserves the powers conferred on a particular officer under Section 21 of the General Clauses Act. So, it is evident that an officer, who has passed the order, has the power to modify or revoke his own order. The Supreme Court in the case of Sushila Mafatlal (supra) in para. 18 while making reference to the provisions of Section 11 of the COFEPOSA Act still gave a finding that the officer who passes the detention order has no power to revoke its own order. This ratio laid down is in direct conflict of ratio laid down in the Ibrahim Bachu(supra) by a Bench comprising three Hon'ble Judges. The learned Counsel for the respondents has referred to the case of A.R. Antulay (supra) in support of his contention that if a particular conclusion is arrived at in a particular judgment ignoring the law already settled then the said conclusion is not binding and the judgment would be rendered per incuriam. It has been laid down in the said case that per incuriam are those decisions given in ignorance of some inconsistent statutory provisions or of some authority binding on the court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong, and if a decision has been given per incuriam the court can ignore it. A step in the reasoning in the case of Sushila Mafatlal (supra) is shown to be in direct conflict with the law laid down by the larger Bench and it cannot be imagined as to if the law laid down in the case of Ibrahim Bachu (supra) was brought to the notice of the Hon'ble Judges as to what conclusion could have been reached on the main question as to whether the officer who passes the detention order can also entertain a representation from the detenu seeking revocation of the said detention order. It is also to be emphasized at this stage that in case of Sushila Mafatlal (supra) the argument which arose for consideration was whether it was incumbent on the part of the detaining authority to have incorporated in the grounds of detention a fact that the detenu has a right to make a representation to the said officer who passes the detention order and if no such fact is mentioned, whether the detention order is liable to be set aside on that score because the detenu had not been apprised of his right to make a representation against the order of detention passed by the particular officer, to the said officer himself. Examining the constitutional mandate given under Article 22(5) of the Constitution and provisions of Section 11 of COFEPOSA Act, the court reached the conclusion that the detenu has a right to make a representation only to the appropriate government and not to the officer who may have been specially empowered for passing the detention order. In the present case, it is mentioned in the grounds of detention that detenu has not only a right to make a representation to the officer who has passed the detention order but also to the appropriate government. So, in this case, the officer concerned had invited a representation from the detenu for his own consideration in order to enable him to exercise his power under Section 21 of the General Clauses At to decide whether he should or should not revoke his own order. It may be that the detenu is not conferred any statutory or constitutional right to make any representation against the detention order to the officer who had passed the detention order. However, there is nothing illegal or wrong if the officer, who has passed the detention order and who is empowered under Section 21 of the General Clauses Act to revoke his own order to invite a representation to himself also for reconsidering the matter on some material which may be disclosed by the detenu in his representation seeking revocation of the order. It is true that the detenu's constitutional right to make a representation to the appropriate government against the order of detention is not to be taken away by the officer concerned inviting the representation to himself. Be that as it may, in the grounds of detention in the present case the detenu has been apprised of his constitutional right to make a representation to the appropriate government against the order of detention. He has been given an additional right by the officer passing the detention order to make a representation to that officer also. The question which would arise for decision is whether in such a case when in response to the right conferred on the detenu in the grounds of detention to make a representation to the officer concerned also, the detenu makes such representation still the said representation has to be considered by the appropriate government and not by the officer concerned.
10. The learned Counsel for the petitioner has vehemently argued that when there is no constitutional right available to the detenu to make a representation to the officer concerned then whenever he makes any representation against the detention order he is exercising his constitutional right and such a representation, if not accepted by the officer concerned although the same may be addressed to him, yet it is incumbent on the officer concerned to have placed the said representation before the appropriate government. There is a fallacy in this contention because in the grounds of detention the detenu has been clearly apprised of his right of making a representation not only to the officer concerned, who has passed the detention order but also to the Central Govt., so the detenu could make two representations, may be simultaneously or one after the other. Where a representation is made to the officer concerned in response to the said right conferred by the officer in the grounds of detention it is not understood why such a representation should not be disposed of by the officer concerned at his own level and only if the detenu makes a representation to the Central Government only then the said representation has to be considered by the Central Government. The facts in the case of Sushila Mafatlal (supra) were some what different because in the grounds of detention in the said case the detenu had not been given any right to make any representation to the officer who has passed the detention order. This distinguishing feature appearing in the case of Sushila Mafatlal(supra) has not been highlighted before the Bench which decided the case of Subhash Chander(supra).
11. The learned Counsel for the petitioner has drawn my attention after the case was listed for rehearing for some clarifications to Criminal Writ Petition No. 550/88, Ashok Kumar Jaidka v. Union of India and Anr. decided on March 2, 1989, by the same Bench which had decided the case of Subhash Chander(supra). He has made reference to the following observations appearing in this judgment:
We had held in Subhash Chander's case(supra) that a specially empowered officer under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Exchange and Prevention of Smuggling Activities Act, 1974 even if additionally authorised to revoke an order of detention under Section 11 of the COFEPOSA Act, was ipso facto not authorised to deal and decide the representation made to him challenging the order of detention passed by him. That conclusion of ours was based on the observations of the Supreme Court in Smt. Sushila Mafatlal Shah's case(supra).
12. The learned Counsel for the petitioner has argued that now the Division Bench had made it clear that even if a specially empowered officer is authorised to revoke an order of detention even then he is not entitled to deal with any representation made by the detenu at his own level. The learned Counsel for the petitioner forgets that the said observations have been made on the basis of the decision given in the case of Sushila Mafatlal (supra). The Division Bench has not made reference to the case of Ibrahim Bachu(supra). I feel that the important questions, as mentioned below, arising on this point require to be considered by a Full Bench :
1. Whether the judgment given in the case of Ibrahim Bachu(supra) is binding on the point, whether the officer who passes the detention order has the power to revoke the order ?
2. Whether the judgment given in the case of Sushila Mafatlal (supra is per incuriam inasmuch as the law laid down in the case of Ibrahim Bachu(supra) by a larger Bench was not taken note of ?
3. Where in the grounds of detention the detenu has been given a right to make a representation to the officer, who has passed the detention order, in addition to his right to make a representation to the appropriate government, still is it incumbent upon the officer concerned not to dispose of the representation made to him at his own level ?
13. The learned Counsel for the petitioner has then urged that a copy of the order of detention was not supplied to the detenu in the Hindi language, which was the only language known to the petitioner, at the time the order was served on the petitioner. It is pertinent to mention that in the whole of the writ petition and also in the additional grounds pleaded later on, there is no plea taken by the petitioner that he was not explained nor did he understand the contents of the detention order at the time it was served upon him. Even in the representation made by the detenu to the Advisory Board no such contention was raised that the detenu was not explained the contents of the detention order at the time the detention order was served on him. So, this plea is now no longer available to the petitioner that he did not understand the contents of the detention order at the time it was served on him on the mere fact that the Hindi translation of the order of detention was not supplied to him. If a proper plea had been raised in the writ petition that the contents of the detention order were not understood by the petitioner at the time the same was served on him, the respondents could have met that plea by showing that in fact the contents of the detention order were explained to the detenu in the language known to him at the time the detention order served on him. Hence, I do not find any merit in this particular ground which I, hereby, negative.
14. Still, another ground raised in challenging the impugned orders is that a material document, i.e., the order of the Magistrate by which the petition of the detenu seeking bail was dismissed as withdrawn was not placed before the declaring authority and thus, the order of declaration stands vitiated due to non-application of mind by the declaring authority to the most material document coming into existence before the order of declaration was made. It is true that it has been laid down by this Court in Harbhajan Singh v. Union of India and Ors. 1989(1) DL 118 and Ramaswamy Rajan v. Union of India and Ors., Criminal Writ No. 115/88, decided on August 19, 1988, that any material document or fact which may come into existence after the passing of the detention order and before the passing of the order of declaration which may sway the mind of the declaring authority in deciding whether he should pass an order of declaration or not, if not brought to the notice of the declaring authority, then the order of declaration would stand vitiated and it was held that an order of the court declining the bail to the detenu is such a material document. However, where the detenu had only withdrawn the bail application and the court has dismissed the bail application as withdrawn, it is not understood how such an order could be treated to be a material document or fact which should be placed before the declaring authority. It is only when a court applies its judicial mind to the facts and comes to some conclusion in disposing of the bail application that the said order would become material document as it may influence the mind of the authority either way in considering whether declaration or detention order should be made or not, but where the court has not applied its judicial mind and has not given any verdict on the bail application it can hardly be said that such an order of the court, which only dismisses the bail application as withdrawn, could in any manner influence the mind of the authorities concerned. Hence, I hold that even if this particular order by which the bail application of the petitioner was dismissed as withdrawn was not brought to the notice of the declaring authority, even then the impugned orders are not vitiated as such an order is not a material document. So, I negative this ground.
15. Still another challenge raised to the order of declaration is that the order of declaration shows that the act of smuggling has been committed by the petitioner at the International Airport, Delhi, which is a vulnerable area but in fact the detenu was to smuggle the goods to Bombay. So there is non-application of mind by the declaring authority in passing the declaration on a ground which was not in existence. There is no merit in this contention because as the facts show, enumerated in the opening of the order, that a person was to board the plane at Delhi and the detenu was supposed to pass on the smuggled gold to the said person at Delhi. Hence, the act of smuggling by the petitioner has been committed at Delhi Airport which is a vulnerable area and thus, the order of declaration is well based. I negative this particular ground as well.
16. It has been then argued that the petitioner had, in his representation delivered to the Advisory Board by hand on the day the Advisory Board met, requested the Advisory Board to examine his brother as a witness who was present outside the room of the Advisory Board but the Advisory Board did not pass any order on this request of the petitioner and hence, the impugned orders stand vitiated on this score because the petitioner had been deprived from making effective representation to the Advisory Board. I have perused the record of the Advisory Board and find that the detenu appeared in person and was heard and thereafter the Advisory Board passed the order. There is nothing to show in the proceedings of the Advisory Board that the detenu orally apprised the Advisory Board regarding presence of any witness outside the room of the Advisory Board and had prayed to the Advisory Board for examining that witness. Counsel for the petitioner has made reference to the case of Surinder Kumar Arora v. Union of India and Ors. Criminal Appeal No. 55/86.
17. On the other hand, the respondents have pleaded that in fact, no witness of the petitioner was present outside the room of the Advisory Board and no request was made by the detenu to the Advisory Board for examining any witness. So, this particular fact stands controverter by the respondents in their affidavit that particular witness of the petitioner was present outside the room of the Advisory Board. In the case decided by the Supreme Court such a fact was not controverter in the pleadings and thus, the Supreme Court held that once a request had been made in writing by the detenu to the Advisory Board mentioning that his witness was present outside the room and he should be examined, then the record should show whether such a request had been considered by the Board or not. These observations have been made by the Supreme Court in the light of the facts appearing in that case. In Vijay Kumar v. Union of India : 1988CriLJ951 , the Supreme Court has held that an oral request ought to have been made by the detenu to the Board if he wanted to examine any witnesses. In the said case, the proceedings before the Advisory Board indicated that the detenu had appeared in person and had argued his matter. The learned Counsel for the petitioner has drawn my attention to the judgment given by the High Court in the case out of which the matter went up to the Supreme Court and had pointed out that in that case the representation was sent by the detenu from jail two days earlier to the meeting of the Board and in that representation the detenu had mentioned that his witness would be present outside the room of the Board and so also his next friend and they be permitted, but when the Board met, no such request was made to the Board by the detenu orally. It was opined by the High Court as to how the detenu could mention in the representation that his witnesses were present outside the room of the Board when meeting of the Board was to take place two days after. However, it is to be seen from the facts of each casein order to see whether the Board had failed to consider the request of the detenu for permitting him to examine some witnesses. For that purpose the detenu has to show that his witnesses were present outside the room of the Board. If the witness of the detenu had been present outside the room of the Board, I do not understand why the Board would have not examined the said witness if this fact had been brought to the notice of the Board. It appears that this particular fact is inserted in the representation only to make it a ground of challenge later on when in fact the detenu had no intention of examining such witness. The representation must have been drafted and prepared a day or two earlier before the meeting of the Board took place. So, it becomes incumbent on the part of the detenu to bring it to the notice of the Board specifically at the time he appears before the Board that he has brought some witness who should be examined. The learned Counsel for the petitioner has argued that the detenu in such cases is brought from the jail and thus, he might not be in a position to apprise this fact orally as being not in proper mental state, may be overawed by the situation of being appearing before an august body like the Advisory Board and once the detenu gives his request in writing, it is the bounden duty of the Board to pass some order on such request. It is to be again remembered that this particular request of the detenu is included in a representation made by the detenu against the detention order. No separate written request apart from the representation had been made by the detenu. Mere fact that the petitioner has attached an affidavit of his brother mentioning that he was present outside the room would not, I think, persuade this Court to hold that in fact, he was present outside the room of the Advisory Board when his affidavit is counter-balanced by the affidavit of the opposite party. At any rate, in such like cases when the detenu appears in person and presents his representation, the detenu could always make a request to the Members of the Board that a witness was present outside the room and he may be examined. If such fact is highlighted before the Board, the Board would definitely deal with such a request. The Board comprises of a sitting Hon'ble Judge of the High Court and two retired Hon'ble Judges of the High Court. The proceedings of the Board show that in fact no such request had been made by the detenu, that a witness was present outside the room of the Board and he should be examined. The mere fact that in his written representation he made such request is not decisive on the the matter. So, considering the facts of the present case, I hold that in fact, no witness of the detenu was present outside the room of the Board and thus, he made no request to the Board for examining such witness. I negative this plea of the petitioner as well.
18. It is admitted fact that the boarding card and the Customs Clearing Form pertaining to the petitioner were relied upon in the grounds of detention for passing the detention order and the Hindi translations of the said two documents were not supplied to the petitioner. The learned Counsel for the petitioner has vehemently argued that as the documents referred to and relied upon by the detaining authority in passing the detention order had not been supplied to the detenu pari passu the grounds of detention the order of detention stand vitiated. It is settled law that along with the order of detention pari passu the grounds of detention, which include the material facts and the documents which are the basis for passing the order of detention, must be supplied to the detenu in a language understandable by the detenu. It is also settled law that the law requires strict compliance of this procedural provisions and if strict compliance of such procedural safeguards does not take place the order of detention would be set at not [nought]. Where the question of strict compliance of the safeguards prescribed under Article 22(5) of the Constitution of India arises, there is no question of bringing the principle of prejudice in order to decide whether the detention order is vitiated or not. The first facet of the safeguard provided by the Constitution is that the grounds of detention, which include the material facts and documents, relied upon for passing the detention order must be supplied to the detenu pari paso the order of detention. In Smt. Maziya Umar Bakshi v. Union of India and Ors. : [1980]3SCR1398 , it was laid down that the service of the grounds of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie. It was held that in case where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of certificate to show that the grounds have been explained to the detenu in a language which he understands. In Mrs. Tsering Dolkar v. The Administrator, Union Territory of Delhi and Ors. : 1987CriLJ988 , again it was reiterated that the detenu has to be informed about the grounds of detention in a language which he understands. It was held that in the matter of preventive detention, this test is not one of prejudice but one of strict compliance with the provisions of the COFEPOSA Act and where there is a failure to comply with those requirements it becomes difficult to sustain the order. In the cited case, the plea taken by the authorities was that detenu's wife knew the language in which the grounds of detention were served on the detenu. It was held that the same did not comply with the statutory requirement of communicating the grounds of detention in the language known to the detenu. Counsel for the petitioner has brought to my notice a judgment given in Criminal Writ No. 85/85, K.M. Ashraf v. Union of India and Ors., decided by a Division Bench of this Court on July 15, 1985, wherein the order of detention was quashed as illegible documents were supplied to the detenu. He has made reference also to Criminal Writ No. 236/86, Ram Dass Chauhan v. The Administrator and Ors., decided on November 4, 1986, by a division Bench of this Court, Cr. Writ No. 236/87, Sat Pal @ Shah v. Union of India and Ors., decided on September 2, 1987, Ashok Gupta v. Union of India and Ors. Criminal Writ No. 180/88, decided on June 10, 1988 and also to Ibrahim Ahmad Batti v. State of Gujarat and Ors. : [1983]1SCR540 , and Hadibandhu Das v. District Magistrate, Cuttack : 1969CriLJ274 , in support of his contention that if documents relied upon are not supplied to the detenu the detention order is liable to be struck down. There is no dispute about the legal proposition of law that all material facts which include the documents which have been relied upon by the detaining authority must be supplied to the detenu in the language known to the detenu along with the order of detention but the crucial question which arises for decision in the present case is whether the contents of the boarding card and the Customs Clearance Form which were taken from the possession of the petitioner stood communicated to the petitioner or not. In the Hindi translation of the grounds of detention the contents of the said two documents stood substantially reproduced. In Writ Petition (Criminal) No. 682/86, Sheopujan Prasad v. Union of India and Ors., such a question arose for decision. The Supreme Court observed as follows :
When the petition was entertained in this Court it was confined to the ground whether the omission of the detaining authority to supply him the Hindi version of certain documents in English invalidated the detention. We have heard learned Counsel for the petitioner and have also examined the documents to which reference was made by the petitioner. We find that the contents of the documents have been substantially referred to in the grounds of detention prepared in the Hindi language insofar as those contents affect the petitioner. We are satisfied that no case has been made out for invalidating the detention. The Writ Petition is rejected.
19. Counsel for the respondents has drawn my attention to Sum Mallick v. State of West Bengal : 1974CriLJ1534 . In the cited case, the detenu was illiterate person and the plea taken was that the grounds have not been communicated to him. The Supreme Court found that his representation made immediately after the service of the order of detention shows that he had made effective representation indicating that he must have been communicated the grounds of detention and he must have understood the grounds of detention before making the representation. So, the question whether the grounds of detention stood communicated to the detenu in the language known to him is a question of fact to be decided in each case. If the grounds of detention stand not communicated then it could be held that strict compliance of the constitutional safeguard has not taken place and no question of prejudice to the detenu shall arise in such a case. It is true that the detenu is not bound by the allegations made in the grounds of detention that this particular boarding card and the Customs Clearance Form were recovered from the detenu, still it is to be remembered that the boarding card had only the seat number of the detenu written on it and the Customs Clearance Form had only the factum of two bags of the detenu written in the form under his signatures. In the grounds of detention supplied to the detenu in the language known to him the contents of the said two documents stood substantially reproduced. So, following the judgment given in Sheopujan Prasad (supra) it has to be held that the contents of the said two documents stood communicated to the petitioner-detenu pari passu the order of detention when he was supplied the grounds of detention in the language known to him. So, I negative this ground also.
20. The learned Counsel for the petitioner has lastly argued that the copies of the documents asked for in his representation was supplied belatedly and thus, the detenu was disabled from making any effective representation. Reference is made to the copies of the boarding card and the Customs Clearance Form supplied to the detenu in Hindi language later on by the authorities but belatedly. Once it is to be held that the petitioner had been communicated the contents of the said documents substantially Along with the grounds of detention then there cannot be any question of delay having been caused in supply of copies of the said documents in the language known to the petitioner belatedly. So, it cannot be held that the petitioner was deprived of making any purposeful or effective representation on account of supply of some facts and documents belatedly by the authorities. The other documents, of which copies were sought and which were supplied belatedly, were neither relied upon nor referred to even casually or incidentally in the grounds of detention or in the copies of the documents supplied to the detenu and thus, no duty was cast on the authorities to supply such copies of the documents to the detenu and if as a matter of grace the authorities have supplied the copies of such documents no ground can be taken to challenge the order of detention for belated supply of such copies.
21. The learned Counsel for the petitioner has made reference to Ramachandra A. Kamat v. Union of India and Ors. : [1980]2SCR1072 , in which it has been held that when the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation and when such request is made, the same should be complied with expeditiously and if there is undue delay in furnishing such copies, the right to make an effective representation would be considered denied to the detenu. However, this judgment would not apply to the facts of the present case because the substance of facts mentioned in the said two documents stood already communicated to the petitioner in the grounds of detention. Hence, no prejudice has been caused to the detenu for belated supply of copies of the said two documents. The learned Counsel for the petitioner has pointed out that in this judgment the Supreme Court held that the copies must be supplied even if the grounds were sufficiently detailed. This is correct but no plea had been taken in the said case that the contents of the documents substantially stood enumerated in the grounds of detention communicated to the detenu. It is one thing to say that the grounds were sufficiently detailed and it is another thing where it may be pleaded that the contents of the documents, of which copies are required, stand substantially enumerated in the grounds of detention. So, the ratio laid down in this particular judgment is not applicable to the facts of the present case.
22. Counsel for the [petitioner] has also cited Kirit Kumar Chamanlal Kundaliya v. Union of India and Ors. : [1981]2SCR718 . This judgment has no relevance. What has been said in this judgment is that the copies of the documents, which are relied upon for passing the detention order, have to be supplied to the detenu along with the grounds of detention and it is not for the High Court to determine the relevancy of such documents. Such is not the case here. It has been held above by me that the contents of the said two documents substantially stood communicated to the detenu in the grounds of detention. So, this Court has not gone into the question whether the said documents have any relevancy or not. I negative this ground as well. No other point has been urged before me.
23. In view of the observations made by me in paras 6 & 12 above, I direct that now the papers be laid before Hon'ble the Chief Justice to constitute a Full Bench for deciding the said points.