ORDER
Judgement pronounced by V. Bakthavatsalu, J. (for Hon'ble Mr. Justice N. Dhinakar & for himself)
1. The Division Bench consisting of V.S. Sirpurkar, J and K.Gnanaprakasam, J have formulated the following question for reference to Full Bench:
'When there is a discrepancy in the English version and in the Tamil version of the grounds of detention supplied to the detenu in the sense that, while it is stated in the English version that the 'representation' against the detention would be placed before the Advisory Board, the Tamil version does not include that assurance, and instead, it is stated in the Tamil version merely that the'case' of the detenu shall be placed before the Advisory Board under Section 10 of Act 14 of 1982, is it sufficient compliance? In other words, the question for consideration is whether the term used in the Tamil version would also include a 'representation' made on behalf of the detenu against the detention'.
As per the orders of My Lord the Honourable The Chief Justice, the Full Bench is constituted to decide the above question.
2. The brief facts which led the Division Bench to formulate the above point for reference are as follows.
3. The detenu namely Guna @ Gunasekaran was detained under National Security Act, 1980 by an order dated 26.2.1999. The petitioner who is the friend of the detenu has filed this writ of habeas corpus challenging the order of detention.
4. The petitioner inter-alia contended that he was not furnished with correct translation of the detention order in Tamil and that therefore, on that score alone, the detention order is vitiated. It would be relevant at this stage to refer to the paragraph which relate to Section 10 of the Act. in the English copy of the detention order, it is stated thus:-
'Any representation that is made by him will be duly considered by the Government and will also be placed before the Advisory Board for consideration of his case under Section 10 of the National Security Act, 1980.'
In the Tamil copy of the order, it is stated thus:-
It is, thus, seen that in the Tamil version, it is not specifically stated that the representation will also be placed before the Advisory Board. The Bench which referred the matter pointing out several conflicting decisions of Division Benches of this Court has held that it would be for the larger Bench to close the matter finally one way or the other. For proper appreciation of the rival contention of both parties, it becomes necessary to advert to the various decisions rendered by different Division benches of this Court. It is seen from the judgments of the Division Benches that two different sets of translation came up for decision. Hence, it becomes necessary to divide the translation version appearing in the Tamil order of detention into two categories.
5. The first category of translation reads thus:-
The second category of Tamil version is already extracted above.
6. Regarding the first category of version noted above, the Division bench consisting of T.Jayarama Chouta,J and V.Bakthavatsalu,J in H.C.P.No.l184 of 1997 has held that in the Tamil grounds of detention the fact that any representation that is made by him will also be placed before the Advisory Board for consideration of his case has been omitted and that it would be sufficient to hold that the detention order was vitiated. Subsequently, the Division Bench consisting of T.Jayarama Chouta,J and A.Raman,J in H.C.P.No.679 of 1998 has held that the meaning of the Tamil version is that any representation that is made by him will be duly considered by the Government and he has got right to make a representation before the Advisory Board and if he wants to have a hearing he can make a mention before the authority and that the reading of the Tamil version will go to show that all those which are mentioned in English have been mentioned even in the Tamil version Therefore, the Bench has taken a contrary view. The detenu filed Special Leave Petition to Supreme Court and the same was dismissed at admission stage.
7. In H.C.P.No.1206 of 1997, the Division bench consisting of C.Shivappa,J and A.Ramamurthi,J has held that the detenu has been informed about Section 10 even in the Tamil version and that therefore, no prejudice is caused to the petitioner by the omission of placing the paper before the Advisory Board in the Tamil version and that if Section 10 of the Act has not been incorporated then, there would be some force in the contention of the learned counsel. The above judgment was delivered on 30.4.98. Regarding the above first category of translation version, the Division Bench N.Dhinakar,J and V.Bakthavatsalu,J in Devarajan v. State, etc. and another, 1999 (1) L.W.(Crl) 339 has held that failure to incorporate in the Tamil version of the grounds of detention that the representation will be placed before the Advisory Board is fatal. The above reported decision has been subsequently followed by other Division Benches.
8. Now coming to the second category of Tamil version of the order, it is seen that the Division Bench consisting of S.Jagadeesan,J and K.Gnanaprakasam,J in H.C.P.No.1434 of 1998 has distinguished the Devarajan's case and has held that the above reported decision will not apply to the facts of the case contained in H.C.P.No.1434 of 1998. For coming to such a conclusion the Division Bench relied upon the judgment delivered by Division Bench consisting of C.Shivappa,J and A.Ramamurthi,J in H.C.P.No.1206 of 1997. The Division Bench has held that the above Division Bench decision would be applicable to this case i.e., H.C.P.No.1434 of 1998. It has to be noted at this stage that the subject matter involved in H.C.P.No.1434 of 1998 relates to second category of translation version. But the judgment of the Division Bench in H.C.P.No.1206 of 1997 relates to first category of Tamil translation. In view of the above, facts, the Division Bench has held that Devarajan's case, 1999 (1) LW (Crl.) 339 would not apply to the translation which is the subject matter of H.C.P.No.1434 of 1998.
9. Regarding second category of Tamil version, the Division Bench consisting of A.C.Agarwal, Chief justice and S.Jagadeesan,J in H.C.P.No. 1859 of 1998 has held that in Devarajan's case, 1999 (1) LW (Crl.) 339 the words 'that the representation will be placed before the Advisory Board or the words the case of the petitioner are totally absent and that therefore, the Division Bench has rightly held in that case that the Tamil version is not in conformity with the English version. In a subsequent decision rendered by the same bench in H.CP.1860 of 1998 the Division Bench has held that when the petitioner is informed that his representation will be considered by the Government and thereafter, his case will be placed before the Advisory board under Section 10 of the Act 14 of 82, implicit in it, is that the entire case i.e., the detention order, the grounds of detention alongwith the representation will be placed before the Advisory Board for consideration and that therefore, no prejudice is caused to the petitioner. In H.C.P.No.1881 of 1998, the same Division bench has held that omission to incorporate one sentence i.e., there is possibility of allowing bail application in the Court, is of no consequence. The above judgment will not apply to the facts of this case.
10. The Division Bench consisting of V.S. Sirpurkar,J and V. Kanagaraj,J in H.C.P.No.2 of 1999, approving the judgment of the Division Bench rendered in H.C.P.No.1860 of 1998, which relates to second category of Tamil version, has held that the Division Bench in the above case has taken a view that if it is suggested that the case of the petitioner shall be placed before the Advisory Board then there would be no prejudice caused to the petitioner. The above judgment in H.C.P.No.2 of 1999 was delivered on 2.8.99. The judgment of the same Division Bench rendered in H.C.P.No.899 of 1997 was not placed before the said bench. In the above case i.e., H.C.P.No.899 of 1997, the Division bench has held that in the Tamil version of the grounds of detention, the assurance is not given to the detenu that his representation would be put before the Advisory Board. The bench has further held that omission of this assurance in the Tamil version of the grounds of detention would be fatal to the detention. For coming to the above conclusion, the Division Bench relied upon the judgment of the Division Bench in H.C.P.No.1184 of 1997 to which I was a party. The decision rendered in H.C.P.No.1184 of 1997 relates to first category of Tamil version of the grounds of detention. When the Tamil version of the detention order relating to first category came up before the same Division bench, in H.C.P.No.26 of 1999, the Division Bench has held that the judgment delivered in H.C.P.No.1206 of 1997 is per incurium. The Division Bench following the judgment delivered in Devarajan's case, 1999 (1) LW (Crl.) 339 which relates to first category of Tamil version, has held that failure to inform the detenu about his representation being placed before the Advisory Board is fatal to the detention.
11. The Division Bench which formulated this reference has observed in the order of reference that in H.C.P.No.26 of 1999, however the question whethera mere assurance that the 'case' would be placed before the Advisory Board would be sufficient or not was not actually considered, it is, thus, seen from the above judgments of various Division Benches of this Court that regarding the Tamil version of the order, which falls under the first category, the law laid down in Devarajan's case, 1999 (1) LW (Crl.) 339 has been approved.
12. Regarding the case which falls under second category, the Division Bench consisting of N.Dhinakar,J and V.Bakthavatsalu,J had occasion to consider the identical question in H.C.P.1821 of 1998. The Division Bench has held that even with regard to case which falls under second category, the Division. Bench in H.C.P.No.1821 of 1998 has held that the detenu must be informed that his representation will be placed before the Advisory Board in the language known to him and that it is not sufficient to state that the case of the detenu will be placed before the Advisory Board as per Section 10 of the Act and on that ground number of writ petitions were allowed. It is also observed by us in the above judgment that judgment of the Division Bench regarding the second category of translation version not cited before the Division Bench consisting of S.Jagadeesan, J and K.Gnanaprakasam,J. In the above case, the Division Bench also followed the judgment delivered in H.C.P.No.899 of 1999. In the above judgment H.C.P.1821 of 1998 the Division Bench, to which I was a party, had held that the word 'case' or appeared in both version is entirely different from the word 'representation'. It is held in the above case thus:-
'The state is under the obligation to place the grounds of detention for consideration under Section 10 of the Act. That is why, the word 'case' is mentioned in the English version. If the words 'representation will be placed before the Advisory Board' are not mentioned in Tamil version, it has to be held that there is variation between English and Tamil versions of the detention order. Therefore, in view of the judgments of the earlier Division Benches and also the judgment of the Division Bench in H.C.P.No.899 of 1997, we held that the failure to incorporate in the Tamil version of the detention order that 'the representation made by the detenu will also be placed before the Advisory Board' is fatal and on that ground the order of detention is vitiated.'
In the present case, which is the subject matter of reference, it was contended by the learned Additional Public Prosecutor that there are two conflicting judgments one holding that the mention in Tamil version that the case of the detenu would be placed before the Advisory Board is enough compliance with the duty cast upon the detaining authority and the other talcing directly a contrary view in H.C.P.No.1821 of 1998. On consideration of the above facts, the Division Bench has formulated the question and made this reference for consideration of the Full Bench.
13. Learned Counsel appearing for the petitioner has submitted the following contentions:-
(i) Placing of grounds of detention and placing the representation are entirely two categories which cannot be clubbed together.
(ii) The petitioner must be assured that his representation would be placed before the Advisory Board.
(iii) Unless such assurance is given, it would be difficult for the detenu to prepare his case while making representation before the Advisory Board. The grounds of detention should contain a guarantee that the representation will be placed before the Advisory Board and that it is separate right.
(iv) Provisions of prevention of Detention Act should be strictly construed and that the provisions should not be liberally interpreted.
14. On the other hand, learned Additional Public Prosecutor contended that there is no need for the authorities to state in the grounds of detention that the representation would be placed before the Advisory Board and that in any event, the detenu must show that he was prejudiced by not mentioning the above fact in the grounds of detention and that the reference in the order that the representation will be placed before the Advisory Board is not mandatory. Learned Additional Public Prosecutor further contended that the case i.e., would also include representation and that the Court has to take into consideration the substance of the order and that the wordings contained in the Tamil version would clearly state that the grounds of detention and the representation along with material papers would be placed before the Advisory Board and that when the detenu is aware of his right to send representation to the Advisory Board, he cannot take advantage of mere omission of a particular word in Tamil and that the detaining authority may not know whether the detenu will make representation and that when the detenu has got opportunity to send representation and put forth his case before the Advisory Board, the omission to mention a particular sentence in the order of detention in Tamil would not vitiate the order of detention.
15. Learned Additional Government Pleader for Central Government contended that the representation need not be in a particular form and that the Central Government has got an independent process and that consideration of representation vests with the Government and that therefore, the order of detention would not get vitiated.
16. Having given our anxious consideration to the above rival contentions of both parties, we shall proceed to discuss each and every point raised by both parties. Before proceeding further it is worthwhile to refer to the relevant sections of National Security Act and Act 14 of 82 which relates to reference to Advisory Board.
17. Section 10 of Act 14 of 82 relates to reference to Advisory Board. The above Section reads thus:-
'In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under Sub-Section (3) of Section 3'
Section 10 of National Security Act, 1980 also contains similar provision relating to the reference to Advisory Board under National Security Act, the appropriate Government shall place before the Advisory Board save as otherwise expressly provided in this Act. Except the above slight difference, the substance of both sections contained in Act 14 of 1982 and National Security Act are similar.
18. It is, thus, explicit from the above provisions that after the order of detention was clamped on the detenu, the appropriate Government shall place before the Advisory Board the grounds on which the order has been made and the representation if any made by the person affected by the order. The obligations imposed on the State are explicit from the above provisions. That apart, certain safeguards are provided under Article 22 of the Constitution of India. Article 22 Sub-Clause(5) reads thus:-
'22.(5) When any person is detained in pursuance of an order made under any law providing for preventive detention 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 opportunity of making a representation against the order'.
The above provisions imposes twin obligations on the authority making the order of detention. They are (1) to communicate such person the grounds on which the order of detention has been made and II to afford him the earliest opportunity of making a representation against the order. In the light of the above guarantee and protection contained under Article 22(5) and the obligation, imposed on the State which is explicit from Section 10 of the Act, the crucial question involved in the reference has to be answered.
19. Learned counsel for the petitioner contended that the right of the detenu to make a representation and the obligation of the State to place the representation before the Advisory Board flows from the guarantee afforded to the detenu under the above Article. It is, further, contended that placing the grounds of detention and placing the representation before the Advisory Board are two separate categories which cannot be clubbed together.
20. On the other hand, learned Additional Public Prosecutor contended that if the order of detention clearly states that the detenu has got a right to make representation to the Government and that his case will be placed before the Advisory Board it would be sufficient compliance of Article 22(5) and that the substance of the entire offer should be taken into consideration in deciding the said question. In view of the above rival contentions, it must be firstly decided whether the term 'case' will also include 'representation'. On this aspect, number of authorities were cited by both parties. Our attention was also drawn to relevant paragraphs contained in the judgment.
21. In Raisuddin v. State of U.P,. 1984 SCC (Crl) 16. It is held thus:-
'Section 10 casts a duty on the appropriate Government to forward to the Advisory Board within three weeks from the date of detention, the relevant papers pertaining to the detention. Therefore, the words 'place before' in that Section does not mean anything more than forward to or submit before the Advisory Board the relevant papers relating to the detention of the detenu.'
It was contended by the petitioner in the above case that the words 'place before the Advisory Board' as meaning 'get considered by the Advisory Board' and the said contention was not accepted by the Apex Court. However, the Apex Court has clearly held that the duty casts on the appropriate Government is to forward to the Advisory Board the papers pertaining to the detention of the detenu consisting of the grounds on which the order has been made and the representation if any made by the person affected by the order. It is thus, seen that placing the papers pertaining to the detention and representation if any made by the person affected by the order are separate and distinct.
22. In State of Rajasthan v. Shamsher Singh, 1985 SCC (Crl) 421 the Apex Court has held thus:-
'We are, therefore, prepared to accept the submission of the learned Advocate General that while considering the compliance with section 10 of the Act emphasis has to be laid on making of the reference and forwarding of the grounds of detention and the placing of the representation has to be judged on different basis'.
The Apex Court in the above decision has further held thus:-
'We agree with the submission of Mr.Jethmalani that it is obligatory for the appropriate Government to forward the representation when received, to the Board without delay because unless on the basis of the representation the appropriate Government rescinds the order of detention, the representation is a document intended for the Board. Where the representation has been received the same should, as expeditiously as possible, reach the Board'.
23. The principles of law governing the right to make a representation and consideration are enunicated in Jayanarain Sukul v. State of West Bengal, 1970 SCC (Cri) 92. The Court has held that if the Government will not release the detenu, the Government will send the case alongwith the detenu's representation to the Advisory Board. In paragraph 20 of the judgment, it is observed thus:-
'A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case alongwith the detenu's representation to the Advisory Board.'
It is thus seen from the above judgments that placing the grounds of detention and placing the representation if any send by the detenu and considered by the Government are distinct and separate.
24. The above principles is also reaffirmed in another decision of Apex Court reported in B.Sundar Rao v. State of Orissa, 1972 SCC (Cri) 138. In the above decision, it is held that there should not be any delay in the matter of consideration and the appropriate Government is to exercise its opinion and judgment on the representation before sending the case alongwith the detenu's representation to the Advisory Board. In SK.Sekawat v. State of U.P. v. State of West Bengal, 1974 SCC (Cri) 867, the principles of law laid down in Jayanarain Sukul v. State of West Bengal, 1970 SCC (Cri) 92 relied on. The two obligations of the Government to refer the case of the detenu to the Advisory Board and give an earliest opportunity to him to make a representation and consider the representation on the other are two distinct obligations independent of each other. The decision reported in Narendra Purshotam Umrao v. B.B.Gujaral, 1979 SCC (Cri) 557 reiterates the above principle of law. In paragraph 13 of the Judgment, the Apex court has held thus:-
'It is, therefore, well settled that in case of preventive detention of a citizen, the Constitution by Article 22(5) as interpreted by the court, enjoins that the obligation of the appropriate Government to afford the detenu the opportunity to make a representation and to consider that representation, is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.
It is clear from the above decision that considering the representation is distinct from Government obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable the Board to from its opinions It is, thus, clear that placing materials relating to the case of the detenu and forwarding the representation are two distinct obligations independent of each other, it is also held in State of Rajasthan v. Shamsher Singh, 1985 SCC (Crl) 421 that forwarding the grounds of detention to the Advisory Board are mandatory and the requirements of placing before it, the representation is conditional upon its having been made and that it is however obligatory for the Government to forward the representation when received to the Board without delay. It is, thus, clear from the above decision also that placing the case of the detenu i.e., the grounds of detention and other materials and placing the representation are two distinct obligations. That's why in the English version of the detention order, it is explicitly stated that any representation that is made by him will be duly considered by the Government and will also be placed before the Advisory Board for consideration of his case under Section 10 of the Act. Therefore we are unable to accept the contention of the learned Additional Public Prosecutor that placing the materials before the Advisory Board would include all the papers relating to the detenu and the representation. On the other hand, the contention of learned counsel for the petitioner that placing the grounds of detention before the Advisory Board and placing the representation which was received and considered by the Government before the Advisory Board for consideration are independent of each other and that both cannot be clubbed together has to be accepted.
25. It is the contention of the learned counsel for the petitioner that it is not specifically stated in the Tamil version of the detention order that the representation will also be placed before the Advisory Board and that the fact that the case of the detenu will be placed before the Advisory Board is not sufficient compliance of statutory requirements. On the other hand, learned Additional Public Prosecutor and learned Additional Government pleader for Central Government strenuously contended that the word appeared in the Tamil version would also include representation and that as it is clearly stated in the English version of the detention order, that the representation would be placed before the Advisory Board, the petitioner cannot take advantage of the omission of the word in the Tamil version. Learned Additional Public Prosecutor also places the Tamil dictionary. In Karivathan Tamil dictionary for the word (case) it is stated that it would mean suit case, dispute. In Lifco Tamil dictionary it is stated that the meaning of word would include (arguments) or dispute. In the Tamil Lexicon, it is stated that would mean complaint. The above meaning given in the dictionary would not advance the case of the state. As already stated, in English version of the detention order, it is clearly stated that any representation made by the detenu will be duly considered by the Government and will also be placed before the Advisory Board for consideration of his case under Section 10 of the Act. The assurance given in the English language would show that while considering the case of the detenu under Section 10 of the Act, the representation made by the detenu to the Government will also be placed before the Board for consideration. Such assurance is not explicit and clear in the Tamil version of the detention order. If really there is any force in the above contention of the state that the word 'case' would also include representation, there is no need to specifically state in the English version that the representation will be placed before the Board for consideration of his case under Section 10 of the Act. As the words 'case' and representation' are clearly stated in the English version of the order the contention of the State that the word case would also include 'representation' cannot be sustained.
26. Our attention is also drawn to the interpretation given by the Division Bench of this High Court. Learned Additional Public Prosecutor relies upon an unreported decision rendered in H.C.P.No.1434 of 1998. The Division Bench has held that when Section 10 of the Act has been specifically made mention in the Tamil version, it is not necessary that placing of the papers should be made mention of and that as it relates to reference to the Advisory Board, no prejudice is caused to the petitioner by omission of placing the papers before the Advisory Board in the Tamil version. The said decision has been followed in H.C.P.No.1859 of 1998, 1860 of 1998. The judgment of another Division Bench consisting of V.S.Sirpurkar,J and V.Kanagaraj,J delivered in H.C.P.No.899 of 1997 has already been referred to above while discussing the facts or the case. In the above decision, the Division Bench has held that omission of assurance in the Tamil version of the grounds that representation would be placed before the Advisory Board would be fatal to the detention. As already stated, the above decision was not placed before the Division Bench which dissented from the other Benches. On the other hand, the Division Bench in H.C.P.No.1434 of 1998 relied upon the judgment delivered in H.C.P.No.679 of 1998 and H.C.P.No.1206 of 1997. The above two judgments related to first category of Tamil version. It is also not in dispute that the said Devarajan's case, 1999 (1) LW (Crl.) 339 has been approved by all the Division Benches with regard to first category of the Tamil version of the detention order. It is seen that the appeal filed against the judgment rendered in H.C.P.No.679 of 1998 was dismissed by the Supreme Court at the admission stage. With regard to the above judgments, the Division Bench in H.C.P.No.26 of 1998 has held that the judgment in H.C.P.No.1206 of 1997 is per incurium. In the above judgment, the Division Bench has held that against the judgment rendered in H.C.P.No.679 of 1998, SLP has been dismissed in limit without any reason and that in view of the judgment of the Apex Court that when the SLP is dismissed at admission stage it occasions no merger of the order of the lower court in the order of the Supreme Court. In support of the same, the decision of Court reported in Uday Pratap Singh vs. State of Bihar, 1994 (28) ATC 453 was relied upon. But, the Division Bench in H.C.P.No.2 of 1999 has approved the judgment of the Division Bench consisting of A.C.Agarwal, Chief Justice and S.Jagadeesan, J. in H.C.P.No.1860 of 1998, the above case would fall under second category of Tamil version, which is the subject matter of reference. It is seen that the attention of the Division Bench was not drawn to the earliest judgment of the Division Bench on the same point delivered in H.C.P.No.899 of 1997. It is contended by the learned Additional Public Prosecutor that the Division Bench which delivered the judgment in H.C.P.No.899 of 1997 did not approve the same judgment in H.C.P.No.2 of 1999. But, it is seen from the judgment delivered in H.C.P.No.2 of 1999, the judgment delivered in H.C.P.No.899 of 1997 was not produced or cited.
27. The Division Bench consisting of N.Dhinakar, J. and V.Bakthavatsalu, J had occasion to consider simitar question in H.C.P.No.1821 of 1998. In the above judgment, the Division Bench has held that failure to incorporate the Tamil version of the detention order that the representation made by the detenu will also be placed before the Advisory Board is fatal. In view of the above conflicting views regarding interpretation of the word , the matter is referred to Full Bench.
28. On this aspect of the case, learned counsel for the petitioner contended that in construing the provisions relating to preventive detention, section and provisions should be strictly construed and that liberal construction of the words and sections cannot be permitted. On the other hand, learned Additional Public prosecutor contended that the substance of the language employed in the Tamil version of the order would show that omission of the word i.e., representation is inconsequential. In support of the same, he relies upon a decision of the Apex Court reported in A.Alangarasamy v. State of Tamil Nadu, 1987 SCC (Cri) 477. It is seen from the facts of the above reported decision that in the English version of the grounds, it is stated that the detention is intended to prevent him from indulging in emuggling activities and that Tamil Version discloses that it intended to prevent him from transporting contraband goods, which is covered by Section 3(1) (iii). On the facts of the above two version, the Apex Court has held that the alleged difference between the two versions is not consequential. The above reported decision will not apply to the facts of this case which relates to the failure to incorporate in the Tamil version of the grounds of detention about the representation made by the detenu.
29. It is well settled that in interpreting or construing the words in the document importance should be attached to the plain meaning of the particular word where the language is plain and unambiguous, the court cannot add some other word to give the required meaning. When it is clearly stated in the English version that the representation will be considered by the Government and will also be placed before the Advisory Board, the Tamil version of the grounds of detention should also contain the same meaning. In the English version, an assurance has been given that the representation sent by the detenu will be considered by the Government and will be placed before the Advisory Board. Therefore, such assurance has to be given to the detenu in the language known and understood by him. For the reasons stated above, we hold that the word occurring in the Tamil version of the grounds of detention would not include 'representation'. As placing the case of the detenu before the Advisory Board and placing the representation if any received by the Government are independent of each other, the contention of the State that the word (case) include representation cannot be accepted.
30. The findings on the above points are sufficient to answer the reference. But, learned Additional Public Prosecutor contended that notwithstanding the fact that there is omission of important words in the Tamil version of the detention order, the accused must show that he was prejudiced by such omission. It is also contended on behalf of the State that placing the representation before the Advisory Board will arise only if the representation is received by the Government and that in some cases, the representations were sent in English and that in some cases, the representation sent by the detenu were infact placed before the Advisory Board alongwith the grounds of detention and that therefore, unless the detenu is able to establish that he was prejudiced by the omission, the detention order is not liable to be set aside.
31. On the other hand, learned counsel for the petitioner contended that unless assurance is given, in the language known to the detenu, that representation will be placed before the Advisory Board, he may not be in a position to prepare his case before the Advisory Board. It is also contended that the question of prejudice would not arise in the case of breach of mandatory provisions. But, it is seen from the reference made by the Division Bench, the above point is not covered under the reference. The matter that is referred to the Full Bench is already extracted above. On this reference, we have to hold that placing the case of the detenu and placing the representation are independent of each other and that they cannot be clubbed together and that the word (case) would not include representation.
32. In an unreported decision delivered by a Division Bench in H.C.P.No.1821 of 1998, the Division Bench negativing the contention of the State has held that in the case of breach of mandatory requirements, the question of prejudice could not and would not arise. In H.C.P.No.1860 of 1998, the Division Bench has held that no prejudice is caused to the petitioner by the omission in the Tamil version of the detention order. In H.C.P.No.2 of1999, another Division Bench has approved the above decision. All the above cases relates to a particular language in the Tamil version, which is the subject matter of reference. But, in H.C.P.No.899 of 1997, the Division Bench has held that absence of assurance in the Tamil version of the detention order is fatal to the detention. The rival contentions of the parties on the question or prejudice were not elaborately argued in the above cases.
33. The judgment of the Apex Court relied on by the learned Additional Public Prosecutor throws considerable light on the above question. In State of Rajasthan v. Shamsher Singh, 1985 SCC (Cri) 421, in paragraph 7, it is observed that while making of the reference under section 10 with the grounds of detention is a must, furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government. In Wasiuddin Ahmed v. D.M.Aligarh, 1982 SCC (Cri) 4, in paragraph 19, it is held by the Apex Court thus:-
'It is, therefore, 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. The right of the detenu to make a representation under Article 22(5) would be, in many cases, of little avail if the detenu is not 'informed' of this right. The failure to comply with this requirement, however, does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has been in active politics and was, therefore, fully cognisant of his right to make a representation under Article 22(5) of the Constitution and under Section 8 or the Act.'
Learned Additional Government Pleader for Central Government contended that if the order was translated and explained to the detenu by the Jailor in the language known to him, it would be sufficient compliance. In support of the same, he relies upon a decision reported in M.Mohamed Sulthan v. Joint Secretary to Govt. of India, 1991 SCC (Cri) 104. The above decision relates to order of the Government rejecting the representation.
34. In Bhola Bhuiya v. State of West Bengal, : 1974CriLJ1462 , the Apex Court had held that if the grounds of detention are explained to the detenu in Hindi, the language known to him, it cannot be said that he was denied an opportunity to make an effective representation against the order of detention. But in the latest decision of the Apex Court reported in Powanammal v. State of Tamil Nadu, : 1999CriLJ831 , the Apex Court has held that safeguards embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu.
35. In Kamleshkumar Ishwardas Patel v. Union of India, 1995 SCC (Cri) 643 in paragraph 47, it is held that the detenu was not informed that he can make a representation to the Officer who made the order of detention and that as a result, the detenu could not make a representation to the Officer who made the order of detention.
36. It is, thus, seen from the above decisions that there are certain premises or cases where the question of prejudice could be raised, considered and decided by the Court and it would depend upon the facts and circumstances of each case. But, in so far as the first category of Tamil version, the question of prejudice would not arise as mandatory provision is not complied with.
37. It cannot be disputed that in some cases representation made by the detenu would have been placed before the Advisory Board, even in the absence of assurance given in the Tamil language. There may be cases where the detenu would not have sent representation at all. The obligation of the Government to send the representation would arise only if the Government receives the representation. The possibility of sending representation by the detenu to the Government may also arise after the Advisory Board gives final report to the Government. The above contingencies may occur or may not occur. Therefore, the question of prejudice has to be considered with reference to facts and circumstances of each case. We are unable to delve deep into the above arena in the absence of reference.
38. As all the requirements of constitutional guarantee are embodied in the English version of the detention order, the question of prejudice would not arise in the case of person who knows English. It is for the detenu to plead and place materials to show that he was prejudiced by the significant omission of the Tamil word in the Tamil order of detention. For that, it should be pleaded in the writ petition that the detenu was prejudiced by the omission of the Tamil word in the Tamil version of the detention order and in such cases, it is open to the State to place materials to show that the detenu was not prejudiced.
39. As already stated, in the absence of any reference covering the above dispute, we are unable to give a finding on this aspect of the case. Therefore, we hold that it is open to the parties to raise available contentions on the above subject before the respective Division Benches. Hence, we hold that the question whether or not the detenu was prejudiced by the omission of the word in the Tamil version is left open.
40. In the result, the reference is answered as follows:-
(1) Placing the case of the detenu before the Advisory Board and placing the representation are two separate obligations and that they are independent of each other.
(2) It is obligatory on the part of the State to place the representation alongwith its case while making reference to the Advisory Board.
(3) The word (case) does not include representation
(4) The question whether or not the detenu was prejudiced by omission of the word in the Tamil version is left open to be decided by the respective Division Benches.
In the light of the principle laid down in the judgment the reference is answered and all the cases are ordered to be placed before the respective Benches for disposal.
K. Natarajan, J. (Dissenting)
41. I had the benefit of reading the judgment prepared by my learned brother V. Bakthavatsalu, J. While appreciating the arduous work undertaken by my brother with due respect, I am unable to subscribe my view to the conclusion reached by my learned brother in respect of answer Nos.1 to 3. The facts and the two categories of the Tamil version and the two sets of division Bench judgments of this court expressing divergent views are narrated by my learned brother in detail and, therefore, it is unnecessary to repeat the same.
42. The matter has been referred to the Full Bench in view of the discrepancy noticed between the English and Tamil version of the grounds of detention. The English version of the grounds of detention would state that the detenu is entitled to submit his representation and the representation so submitted would be placed before the Advisory Board, whereas, in the Tamil version though it is stated the detenu is entitled to submit his representation, the representation of the detenu would be placed before the Advisory Board is absent and instead it is stated the case of the detenu would be placed before the Advisory Board. The question referred for the decision to the Full Bench reads as follows:-
'When there is a discrepancy in the English version and in the Tamil version of the grounds of detention supplied to the detenu in the sense that, while it is stated in the English version that the 'representation' against the detention would be placed before the Advisory Board, the Tamil version does not include that assurance, and instead, it is stated in the Tamil version merely that the 'case' of the detenu shall be placed before the Advisory Board under Section 10 of Act 14 of 1982, is it sufficient compliance? in other words, the question for consideration is whether the term used in the Tamil version would also include a 'representation' made on behalf of the detenu against the detention?:'
43. The reference, in the opinion of the division Bench consisting of V.S.Sirpurkar and K.Gnanaprakasam, JJ. became necessary particularly in view of the conflicting decisions expressed by the two division Benches of this Court in H.C.P.No.1821 of 1998, dated 13.8.1991 (N.Dhinakar and V.Bakthavatsalu, JJ.) and H.C.P.No.1434 of 1998, dated 10.6.1999 (S.Jagadeesan and K.Gnanaprakasam, JJ). While the first division Bench expressed the view that apart from the opportunity given to the detenu telling him that he is entitled to submit his representation to the Advisory Board, there should also be an assurance by the detaining authority that the representation so submitted would be placed before the Advisory Board. The second division bench relying on the principles expressed by two division bench Judgments of this court in H.C.P.No.679 of 1998 as well as in H.C.P.No.1206 of 1997, held a further assurance need not be given and that Section 10 of the Tamil nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders and Slum-Grabbers Act, 1982 thereinafter referred to as 'Act 14 of 1982') would take care of the situation and that 'case' of the detenu would include the 'representation' submitted by the detenu.
44. For a better appreciation of the matter under reference, a critical examination of Sections 8 to 12 of Act 14 of 1982 as well as The National Security Act, 1980 (hereinafter referred to as 'Act 65 of 1980') and Article 22(5) of the Constitution of India is necessary. The wording of Sections 8 to 12 in Act 14 of 1982 and Act 65 of 1980 is more or less similar except for a small difference as pointed out by V.Bakthavatsalu, J. A careful reading of the Sections referred to in both the Acts and Article 22(5) of the Constitution of India, makes it obligatory on the part of the detaining authority to communicate to the person detained the grounds on which he is detained and put him on notice at the earliest opportunity that he is entitled to submit his representation to the Central Government or the State Government as the case may be.
45. The learned senior counsel Mr.Kannabiram made his submissions for the petitioner, which has been adopted by the other learned counsel appearing for the remaining petitioners. The learned Standing Counsel for the Central Government and the learned Additional Public Prosecutor represented the Central and State Governments respectively.
46. It was submitted on behalf of the petitioners that in the Tamil version of the translation, the words 'giving an assurance that the representation submitted by the detenu would be placed before the Advisory Board', as is found in the English version are missing and instead, it has been stated 'the case of the detenu' would be placed before the Advisory Board. According to the learned senior counsel, 'case' would only refer the case of the detaining authority and it would not include the 'representation' made by the detenu and, therefore, the words so missing and the statement' the case of detenu would be placed before the Advisory Board' would not be sufficient and is fatal and the detenues are entitled to be set at liberty forthwith on that ground alone and, therefore, the view expressed by the division Benches in H.C.P.Nos.1821 of 1998 and 1120 of 1998 is correct and the view expressed by the division Bench in H.C.P.No.1434 of 1998 is not an acceptable view.
47. The learned Additional Public Prosecutor submitted when a person is detained under the preventive laws, the detaining authority has to discharge only two obligations, namely, (1) the authority making the order shall as soon as may be but not later than five days from the date of the detention, communicate to him the grounds on which the order has been made; and (2) afford him the earliest opportunity of making a representation against the order to the State Government or the Central Government as the case may be and the two obligations are mandatory. It is pointed out by the learned Additional public Prosecutor none of the Sections in both the Acts (Act 14 of 1982 and Act 65 of 1990) and Article 22(5) of the Constitution of India stipulate that an assurance should be given to the detenu that the representation submitted by him will be placed before the Advisory Board. The wording of Section 10 in both the Acts makes it very clear that it is mandatory for the Government to place before the Advisory Board constituted under Section 9 of the respective Acts, the grounds on which the order has been made and the representation, if any, made by the person affected by the order and in the case where the order has been made by an officer, also the report by such officer. It was submitted if a detenu made a representation and if the said representation has not been placed before the Advisory Board by the respective Governments, the Advisory Board has no other option except to recommend to the State Government or the Central Government, as the case may be, to revoke the detention order and no further material is necessary.
48. The attention of the Full Bench was invited to the fact that the learned Judges of the Division Bench who decided H.C.P.Nos.1821 of 1998, 1120 of 1998 and 1351 of 1998 have not traced the source of law, namely, whether the law under the statute or the law laid down by the superior courts which compels a further assurance shall be given to the detenu that the representation submitted by his would be placed before the Advisory board, apart from the mandatory provision embodied in Section 10 of both the Acts above and Article 22(5) of the Constitution of India.
49. It is submitted by the learned Additional Public Prosecutor on noticing the discrepancy between the English and Tamil versions in the grounds of detention, the learned Judges have pre-supposed such a right that a further assurance shall be given to the detenu that the representation submitted by him shall be placed before the Advisory Board. It is pointed out either the law under the statute or the interpretation by the Supreme Court of India in the various decisions does not confer such a right on the detenu, namely, a further assurance shall be given that the representation submitted by him would be placed before the Advisory Board apart from the twin obligations referred to above.
50. The learned senior counsel for the petitioners submitted the source of law flows from the principles of natural justice, even though such a wording is absent in the Sections of both the Acts and Article 22(5) of the Constitution and the decisions of the Supreme Court. The learned Additional Public Prosecutor refuted the above submission and submitted when the statute does not provide for an opportunity to the detenu to make his representation, then only, the principles of natural justice would come into operation, and when the statute itself mandatorily provides for an opportunity to submit the representation at the earliest, recourse to principles of natural justice cannot be resorted to. The learned senior counsel for the petitioners relied on the two division Bench judgments of this Court in H.C.P.Nos.1821 of 1998 dated 13.8.1999 and 1351 of 1998 dated 28.4.1999 in support of his submission that the above bench judgments lay down that apart from the mandatory obligation of affording an opportunity to submit a representation by the detenu, a further assurance that the said representation would be placed before the Advisory Board shall be given. The learned Additional Public Prosecutor pointed out because of the divergent views given by the two sets of division Bench judgments, the matter came to be referred to this Full Bench which is under challenge and no ruling of the Apex Court has been placed in support of the above conclusion.
51. It was further argued a reading of Section 11 of both the Acts would make it clear that the Advisory Board shall consider the materials placed before it and if further material or information is found necessary or wanting, the same may be called for from the Government and after going through the same, a decision would be arrived at in a particular case by the Advisory Board. According to the learned Additional Public prosecutor the word 'material' occurring in Section 11 of both the Acts, would include the material on behalf of the detaining authority as well as the detenu, namely, the representation made by him.
52. The decision in A.K.Roy v. Union Bank of India, : 1982CriLJ340 was mainly relied on by the learned counsel for the petitioners to support his argument that apart from the twin obligations that haves to be discharged by the detaining authority, there should be a further assurance that the representation submitted by him would be placed before the Advisory Board. In para 63 of the said decision, it has been observed:-
'The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Menaka Gandhi, : [1978]2SCR621 . The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fail within the prescribed area, when measured by common understanding. In criminal law, the legislature frequently uses vague expressions like 'bring into hatred or contempt', or 'maintenance of harmony between different religious groups', or 'likely to cause disharmony or hatred or ill-will', or 'annoyance to public'. (see Sections 124-A, 153A(1)(b) , 153-B(1)(c) and 268 of the Penal Code. These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language.'
in para 89 of the said decision, it is observed:-
'To read the right of legal representation in Article 22(5) is straining the language of that article. Clause (5) confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be effective, but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because, by Section 10 of the National Security Act, the representation made by the detenu is required to be forwarded to the Advisory Board for its consideration. If anything, the effect of Section 11 (4) of the Act, which conforms to Art. 22(3)(b), is that the detenu cannot appear before the Advisory Board through a legal practitioner. The written representation of the detenu does not have to be expatiated upon by a legal practitioner.'
In para 106, it has been held:-
'It is urged by Shri Jethmalani that the Advisory Board must decide two questions which are of primary importance to the detenu; one, whether there was sufficient cause for the detention of the person concerned and two, whether it is necessary to keep the person in detention any longer after the date of its report. We are unable to accept this contention, Section 11 (2) of the Act provides specifically that the report of the Advisory Board shall specify its opinion 'as to whether or not there is sufficient cause for the detention of the person concerned'. This implies that the question to which the Advisory Board has to apply its mind is whether on the date of its report there is sufficient cause for the detention of the person. That inquiry necessarily involves the consideration of the question as to whether there was sufficient cause for the detention of the person when the order of detention was passed, but we see no justification for extending the jurisdiction of the Advisory Board to the consideration of the question as to whether it is necessary to continue the detention of the person beyond the date on which it submits its report or beyond the period of three months after the date of detention. The question as to whether there are any circumstances on the basis of which the detenu should be kept in detention after the Advisory Board submits its report and how long, is for the detaining authority to decide and not for the Board. The question as regards the power of the Advisory Board in this behalf had come up for consideration before this Court in Puranlal Lakhanpal v. Union of India, : 1958CriLJ283 . While rejecting the argument that the words 'such detention' which occur in Art. 22(4)(a) of the Constitution mean detention for a period longer than three months, the majority held that the Advisory Board is not called upon to consider whether the detention should continue beyond the period of three months. In coming to that conclusion the majority relied upon the decision in Dattatraya Moreshwar Pangarkar v. State of Bombay, : 1952CriLJ955 in which Mukherjee,J. while dealing with a similar question, observed:
'The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person concerned. It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appropriate Government and it can under S.11(1) of the Act confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.'
53. It is true that the decision reported in Tsering Dolkar v. Administrator, U. T.Delhi, : 1987CriLJ988 lays down, in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements strictly. It becomes difficult to sustain the order. However, the above ruling does not lay down that a further assurance shall be given by the detaining authority that the representation if any, submitted by the detenu will be placed before the Advisory Board. Likewise, the decision reported in Kamleshkumar Ishwardas Patel v. Union of India, 1995 SCC (Crl) 643, also lays down that the detenu is entitled to the rights as provided under Article 22(5) of the Constitution, which in turn stipulates that the grounds of detention shall be informed to the detenu at the earliest and the detenu should be given an opportunity at the earliest to submit his representation. This decision also does not specify that it is obligatory on the part of the detaining authority to give a further assurance that the representation submitted by the detenu will be placed before the Advisory Board.
54. In the decision reported in A.Alangarasamy v. State of Tamil Nadu, 1987 SCC (Crl) 477, the Apex Court had occasion to consider the discrepancy between the Tamil and English version in the grounds of detention served on the detenu. On a consideration of the same, the Supreme Court observed in paras 3 to 5 as follows:
'3. The learned counsel for the petitioner raises two questions before us. (1) There is variation between Tamil and English version of the grounds of detention served on the petitioner. According to him the order of detention in English stales that the detention order has been passed to prevent the detenu from indulging in emuggling activities, while the grounds furnished to him in Tamil discloses that the detention order has been passed with a view to prevent him from transporting contraband goods. The English version would bring the ground under Section 3 (1) (i) of the Act while the Tamil version would bring it under Section 3 (1) (iii). The detenu knows only Tamil. The difference in this version has caused prejudice to him in making a proper representation. (2) The detaining authority did not despatch all the materials before it to the Advisory Board for the Advisory Board to come to an independent conclusion on the grounds of detention and the need for the detention.
4. The learned Judges who know Tamil well have considered the submissions made on the difference in the two versions. Reference was made to 'Law Lexicon' issued by the Government of Tamil Nadu. After considering the meaning of the words used in the English version and Tamil version, the High Court held that the submissions based on this ground were insufficient to quash the order of detention. Since no other contention was advanced before the High Court, the writ petition was dismissed.
5. We have considered the matter ourselves. We are also not impressed with this submission. The alleged difference between the two versions is not conse-quential. The order of detention and grounds accompanied clearly spelt out why the detenu was being detained. We are not persuaded to hold that the two versions are so different as to cause any prejudice to the detenu. We, therefore, agree with the High Court and dismiss the appeal.'
There cannot be any doubt that the grounds of detention should be supplied in the language known to the detenu. It is important to notice in both the categories of the Tamil version as extracted by my learned brother, the fact that the representation submitted by the detenu would be considered by the Government had been specifically stated. However, in the first category of Tamil translation, it is stated he is entitled to a personal audience before the Advisory Board, in the second category of the Tamil version it is stated the 'case' of the detenu would be placed before the Advisory Board. In both the categories of the Tamil version, there is no assurance that the representation submitted by the detenu would be placed before the Advisory Board as in the English version and the said words are missing. From the above discrepancy between the English and Tamil versions it has been held by a division Bench of this Court in Devarajan's Case, 1999 (1) L.W. (Crl) 339 that it would give rise to a right to the detenu and if there is no assurance that the representation of the detenu would be placed before the Advisory Board it is fatal and the Advisory Board has no other alternative except recommending revocation of the detention order. The submission that only if there is an assurance that the representation submitted by the detenu would be placed before the Advisory Board, then only the detenu would be able to prepare his representation, in my opinion, is to read something which is not in the statute. In this regard the observation made in para 4 of the order in H.C.P.No. 1860 of 1998 consisting of the Honourable Mr.A.C.Agarwal, Chief Justice and the Honourable Mr.Justice S.Jagadeesan, dated 1.7.1999, in my view, reflects the correct position which is given below:-
'4. In our judgment, no capital can be made out in respect of the aforesaid discrepancy. When the petitioner/detenu is informed that his representation will be considered by the Government and thereafter his case will be placed before the Advisory Board under Section 10 of the Act 14 of 1982 implicit in it, is that the entire case viz., the detention order, the grounds of detention along with the representation will be placed before the Advisory Board for consideration. In the circumstances, we do not find that any prejudice is caused to the petitioner/detenu by the aforesaid communication conveyed to the petitioner in Tamil.'
After giving my anxious consideration with due respect, I find it difficult to agree with the conclusion of the learned Judges in Devarajan's Case. 1999 (1) LW (Crl.) 399 in H.C.P.No.1120 of 1998. It is not disputed by the learned counsel for the petitioners that in none of the Sections of Act 14 of 1982 and Act 65 of 1980 and Article 22(5) of the Constitution of India or any other statute, no words are found providing for such an assurance and the rulings of the Supreme Court about which reference has been made supra, the obligation of the Government is only to forward the representation submitted by the detenu. It is also made clear by the above rulings if a detenu submits his representation and if the same is not placed before the Advisory Board that itself is a sufficient ground for the advisory Board to recommend revocation of the detention order. It is equally obligatory for the Advisory Board to ascertain whether any representation has been submitted by the detenu and the same has been placed before the Board for consideration. Therefore, it is clear to me that in view of the mandatory obligation contemplated under Section 10 of both the Acts (viz., Act 14 of 1982 and Act 65 of 1980), it is compulsory for the appropriate Government to place the representation of the detenu before the Advisory Board and it is not obligatory on the part of the appropriate Government to give a further assurance apart from the mandatory twin obligations and the discrepancy between the English and Tamil versions by itself will not give rise to a fresh right to the detenu.
55. Now, adverting to the question whether the word 'case' would include the representation of the detenu also, my learned brother V.Bakthavatsalu,J. after a detailed discussion has held the words 'case of the detenu' will not include the 'representation'. With due respect I do not agree, in 'Shibapada Mukherjee v. The State of West Bengal, 1973 SCC (Cri) 715, in para 6 it is held:-
'Section 10 of the present Act requires the State Government to refer the case to the Board within 30 days from the date of detention, and Section 11 requires the Board to submit its report within ten weeks from such date. The reason for prescribing these periods is obvious, that is to enable the State Government to decide, in the event of the Board reporting that there is sufficient cause for detention to confirm the detention order and to continue the detention thereunder 'for such period as it thinks fit'.'
In the decision reported in Narendra Purshotam Umrao v. B.B.Gujaral, 1979 SCC (Cri.) 557 at the end of para 11 and para 13, it has been held:-
'.........Thus the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other.'
13. It is, therefore, well settled that in case of preventive detention of a citizen, the Constitution by Article 22(5) as interpreted by this court, enjoins that the obligation of the appropriate Government to afford the detenu the opportunity to make a representation and to consider that representation, is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion'.
In the decision reported in State of Rajasthan v. Shamsher Singh, 1985 SCC (Cri.) 421 at the end of para 7, it has been held:-
'The procedure of the Advisory Board contained in Section 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu, if he wants to be heard in person, has to report to the appropriate Government within seven weeks from the date of detention in the manner indicated in the remaining sub-sections of that section. While dealing with this aspect of the matter it is to be borne in mind that Section 10 requires the reference to be placed before the Board within three weeks and Section 11 requires the report to be submitted to the appropriate Government within seven weeks. The legislative scheme in fixing the limit of three weeks in Section 10 and the further limit of seven weeks in Section 11 allows at least four weeks' time to the Board to deal with the matter.'
Similarly the observation in Olga Tellis v. Bombay Municipal Corporation, AIR 1980 SC 180 ; Amir Shad Khan v. L.Hmingliana, 1991 SCC (Cri) 946 insist that it is obligatory on the part of the State Government to take copies and send them to the Central Government if it is the appropriate Government to pass orders as per preventive laws. The State Government cannot put it as a defence, since the detenu himself has submitted his representation to the Central Government, it is not necessary for it to take copies and send them to the Central Government. This decision also does not make it obligatory on the detaining authority to give an assurance that the representation made by the detenu wilt be placed before the Advisory Board.
In another decision reported in Raisuddin Alias Babu Tamchi v. State of Uttarpradesh and another, 1984 SCC (Cri) 16 the Supreme Court while interpreting Sections 10 and 11 of the National Security Act, in para 5 has held:
'.........The argument put forward on behalf of the petitioner is that Section 10 mandatorily enjoins the State Government to take steps to see that the case of the detenu is considered by the Advisory Board within three weeks from the date of detention. We are unable to see any merit in this contention...'
'.......Under the section, a duty is cast on the appropriate Government to 'placebefore' the Advisory Board constituted under Section 9 within three weeks from the date of detention, the grounds on which the order of detention has been made and the representation. If any, made by the person affected by the order. The petitioner's counsel wanted us to interpret the words' place before the Advisory Board' as meaning' get considered by the Advisory Board'. We are wholly unable to accede to this argument. Under the terms of the section, the duty cast on the appropriate government is to forward to the Advisory Board constituted under Section 9 within three weeks from the date of detention, the papers pertaining to the detention of the detenu consisting of the grounds on which the order was been made, the representation, if any, made by the person affected by the order, etc., It is to be remembered that the Advisory Board is not an entity subordinate to the Government. It is a wholly independent body consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court. It is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under Section 11 of the Act which has specified a time limit of seven weeks from the date of detention for the submission of the Board's report to the appropriate Government. It is, therefore, wholly wrong to interpret the words 'place before' as meaning anything more than forward to or submit before the Advisory Board the relevant papers relating to the detention of the detenu.....'
From the above, it is clear to me that the detaining authority has to place before the Advisory Board all the relevant papers including the representation if any, submitted by the detenu and the entire material would form part of the case of the detenu.
56. To say a few example, when a case is taken up for enquiry before a court, namely, a civil case or a sessions case or a writ petition or a second appeal, when the learned judge in charge of the case begins to consider the same, he would consider the entire material, namely, the plaint, the written statement, the documents of the plaintiff, the documents of the defendant, the documents summoned from any other person or the Government in a civil case. In a Sessions Case, the case of the prosecution, the documentary and oral evidence of the prosecution, the statement of the accused under Section 313, Cr.P.C. and the documents filed along with it and the evidence of the defence witnesses will be considered as a whole. Likewise, in a writ petition, the affidavit of the writ petitioner, the counter statement filed by the Government and the other documents in the case, namely, the entire material will be considered. Of course, it is true when the case is considered the case of each of the parties and the evidence on behalf of each of them is considered and ultimately a decision is arrived at on the basis of the entire material. In both the categories of the Tamil version, it is stated that the case of the detenu would be placed before the Advisory Board, which in my opinion, would mean that all the materials pertaining to the case would be placed before the Advisory Board and no distinction can be made that the case of the detenu would mean only the case of the detaining authority and it would not include the representation submitted by him. The learned Standing Counsel for the Central Government submitted that if the order of detention was translated and explained to the detenu by the Jailor in the language known to him, it would be enough compliance. In support of the above argument, reliance was placed on the decision reported in N. Mohammad Sultan v. Joint Secretary to Government of India, 1991 S.C.C. (Cri) 104. It is also contended the word ' case' would include all the materials of the case including the representation of the detenu and unless prejudice is established by the detenu, there is no room to hold that a further assurance should be given to the detenu that the representation submitted by him would be placed before the Advisory Board. In this regard, my learned brother V.Bakthavatsalu, J. has held that the question whether or not the detenu was prejudiced by omission of the word in the Tamil version, has to be left open to be decided by the respective division Benches and has given reasons to reach such a conclusion. I am in entire agreement with the above view of my learned brother.
57. For the foregoing reasons, the reference is answered as follows:-
(1) The term used in the Tamil version would also include the 'representation' made by the detenu.
(2) The discrepancy between the English and Tamil versions in the grounds of detention would not give rise to a fresh right to the detenu and the discrepancy is only a mistake committed by the incompetent translator.
(3) There is no warrant to hold that the discrepancy would give rise to a fresh right to the detenu and there is no legal sanction for the same in the Statute.
(4) The question whether or not the detenu was prejudiced by the omission of the word in the Tamil version is left open to be decided by the respective division benches.
58. In the result, the reference is answered in the above terms and all the cases are ordered to be placed before the respective division Benches for disposal according to law.