JUDGMENT
V.D. Gyani, J.
1. Detenu Arjunsingh has been detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short ‘the Act’) by order dated 28-9-92 passed by the respondent No. 1 (Ann. P.I). The detention order is based on grounds as contained in Ann. P.2 to the petition.
2. By this petition under Article 226 of the Constitution filed on behalf of the detenu, by his brother-in-law, the detention order Ann. P. 1 is being challenged and the detenu prays for issuance of a writ of habeas corpus quashing the said detention order.
3. This petition has been filed by de-tenue’s brother-in-law Sultansingh. The detenu as can be gathered from the grounds of detention Ex. P.2 was arrested on 15-3-92, on the basis of the secret information to the effect that the house of the detenue was cordoned off by the staff of the central bureau of Narcotics on 15-3-92. It was suspected that the detenue had stored a large quantity of contraband opium for being transported to Rajasthan through Paburam and Baburam who were found to be hiding in his house in a suspicious manner with bags in their hands at the time of raid. The grounds of detention further refers to the fact that the detenu in his statement recorded on 15-3-92 had disclosed that he was engaged in the trade for the last two years working with his brother and the said Paburam and Baburam. In yet another statement recorded on 21-5-92, the detenu pleaded ignorance about 112.350 Kg. opium, being seized from his house and also about presence of the above two persons Paburam and Baburam. It was thus a case of retracted confession. On the allegations the detenu was arrested for alleged offence under the Act.
4. The detenu was produced before the J.M.F.C. Neemuch on 16/3/92 who remanded the detenu along with co-accused Paburam and Baburam to judicial custody up to 24-3-92. On a bail petition being moved before the Sessions Judge, Mandsaur, he was ordered to be released on bail vide order dated 27-3-92. It was after passing of this order dated 27-3-92 by the Sessions Judge, Mandasur that the impugned order (Ann. P. 1) was passed, which was served on the detenu on 26-11-92 while he was still in judicial custody in sub-jail Mandsaur. Appearently, there is a gap of nerely seven months between passing of the detention order and the date of arrest and the bail order passed by the Sessions Judge, Mandsaur.
5. The detenu submitted his representation against the order of detention to the respondent No. 1 on 18-12-92 through Sub Jail Mandasur, a copy of the representation has been filed as Ann.P.4 to the petition. This representation was considered and rejected as per memorandum P.4-A, by the Central Government on 15-1-93 almost a month after submission. The detenu has made a grievance that there was undue delay of almost seven months in making the impugned order and a month’s delay indisposing of the representation made by the detenue. This delay is unexplained.
6. The detention order has been challenged on various grounds such as–
(1) undue and unexplained delay in passing the detention order dt. 28-9-92 merely seven months after the incident of alleged seizure of opium on 15/3/92.
(2) the detention order having been passed without any application of mind and without arriving at the requisite subjective satisfaction of the detaining authority as regards the necessity of such an order for preventing the detenu and the impugned order is punitive in nature rather than preventive.
(3) that quite a large number of document as per list enclosed along with grounds of detention (p.f.) being in English language, a language admittedly not known to the detenu, yet their Hindi translation was not supplied to him, thus seriously prejudicing the detenu in making an effective representation against his detention order. Thus, Article 22(5) of the Constitution has been violated.
7. Apart from the above noted points Shri Oberai, learned counsel for the detenu also dwelt at length on a question of withholding of so called infomation referred to in para one of the grounds of detention (Ann. P.2) in the garb of public interest. The detenu in his representation had also made grievance about his went of knowledge of English language. It is not that this plea is taken by him for the first time in the petition. The respondents in their return have not controverted. This ground has been specifically taken in ground No. 7 of the petition and the respondents in their return to this ground have come out with a statement with averments which read as follows:
“………….The information contained in documents referred to in Ann. P.6 is already available in the grounds of detention and other relied upon documents. Therefore, non-supply of Hindi version of thse documents did not amount to non compliance of any satu-tory orders particularly when detenu himself is making his representation petitions in English language.”
In para 11 all that the respondents have said is that it was an afterthought on the part of the detenu. The documents relied upon by the respondents in passing the detention order have been placed on record collectively marked as Ann.P.6 to the petition.
8. Before proceeding further it would not be out of place to note that the stand taken by the detenu is not an afterthought. He had taken this ground even in his representation and as already noted above it is not that for the first time this plea of want of knowledge of English is being taken for the first time in the petition before us. So to say, that is in afterthought is not correct. The detenu is ignorant of the English language. This fact finds mention in the representation submitted by him against the detention order. He has also made a grievance about the legibility of copies supplied to him.
9. We do not, for the present, propose to go into the question of legibility of copies of documents confining ourselves to the question of documents in English language, the list of documents as prepared by the respondents, the detaining authority, is itself in English. It contains as many as 36 documents and out of these documents as many as 11 are in English languge. It is the respondent’ case that all these documents have been relied upon by the detaining authority for basing detention order (Ann. P1).
10. Shri Khan, learned counsel appearing for the Union of India, respondents, argued that some of the documents in English are documents which the detenu himself had filed through his counsel. They are the bail petition etc. and nothing. It would be significant note that even if this bail petition, as urged being a document moved on behalf of the detenu who is ignorant although it cannot be because at the stage of moving the bail petition the detenu was assisted by a counsel but not so in making the representation against the detention order. But for the argument sake even if this document is excluded yet there are as many as ten such documents and they are important one; for example Chemical Examiner’s report who had examined a samle of the contraband seized from the detenue’s house.
11. The information sent to the Narcotic Commissioner of the State is in English. The revision memo, the court’s order and the report of the investigating officer inform F. are all in English. It cannot be any stretch of law be said that a detenu who is ignorant of English language is not prejudiced for want of Hindi version of these documents. The making of representation against the detention order is a valuable right conferred and guaranteed under Article 2(5) of the Constitution. What is intended is that the detenu must be supplied with the grounds of detention which also include material on which the detention order is based an admittedly on respondents own showing these documents have been relied upon by the respondents-detaining authority in passing the impugned order.
12. There is infringement and violation of Article 22(5) of the Constitution. The order of detention is liable to be quashed on this ground alone and it is accordingly quashed. If any authority is needed in support. Kubic Dariusz v. Union of India (1990) 1 SCC 568: (1990 Cri LJ 796) can be referred with advantage wherein the Supreme Court has held as follows at page 800 (of Cri L.I) :–
“”Communicate” is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representative. Where the grounds are counched in a language which is not known to the detenu, unless contents of the grounds are fully explained and translated to the detenu, it would tentamount to not serving the grounds to the detenu and would thus vitiate the detention ex facie. If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served and Art. 22(5) is infringed. Thus what is considered necessary is working knowledge of the language enabling the detenu to understand the grounds or full explanation or translation thereof in the language understood by the detenu.”
It is not even the respondent’s case that grounds vis. the documents in English that were relied upon were explained to the detenu in the language that is Hindi known to him and translation of such documents were supplied to him in Hindi.
13. The respondents have tried to explain the delay in passing the order which is more than six months. The justification is to be found in para 6 of the return. It is a routine manner in which the machinery moves. Taking the explanation on its face value yet it does not stand to reason, more so in face of the conspicuous absence of these very explanation in the grounds of detention Ann.P.2. If all these explanations or reasons as offered by the respondents in their return were really in existence at the time of passing the detention order, one would naturally expect some indication thereof either in the order itself or at least in the grounds of detention supplied to the detenu. But they are conspicuously missing from both. The order thus deserves to be quashed even on this ground alone. See Rabindra Kumar Goshal v. State of West Bengal, AIR 1975 SC 1408 : (1975 Cri LJ 1235).
14. The detention order is challenged yet on another ground. It was argued that the order (Ann. P. 1) has been passed without any application of mind and without arriving at the requisite subjective satisfaction of the detaining authority. In face of the allegation made by the detenu, it is expected of the detaining authority passing the detention order to have some forward with a counter-affidavit. The order of detention has been passed by Shri A. K. Srivastava, Joint Secretary to the Government of India. Sadly enough the counter-affidavit filed by the respondents is by Shri T. S. Sandhu, an Under Secretary, to the Government if India, in PITNDPS CELL, the Supreme Court in umpteen cases has propounded the necessity of counter-affidavit being sworn by the detaining authority, particularly when the detention order is challenged on ground of non-application of mind. It is necessary that the return to the rule nisi should be filed by the detaining authority. (See Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi (1987) 2 SCC 69 : (1987 Cri LJ 988) and State of Gujarat v. Sunil Pulchand Shah (1988) 1 SCC 600: (1988 Cri LJ 933). True it is that it is not an inflexible rule but it does assume importance in face of the allegation that the detention order is passed without any application of mind and there is absolutely no explanation for not putting on record the affidavit of the detaining authority. Shri Sandhu does not say that he had at any point or stage of this case had ever any occasion to process this case. It is purely based on records available with the office. (See para two of his affidavit). In the circumstances, the contention advanced by the detenu cannot lightly be brushed aside.
15. In absence of such an affidavit, the counter-affidavit sworn by an Under Secretary can hardly be said to be substitute. Here again the allegation made by the detenu in absence of any allegation by the detaining authority, deserves to be accepted and is accordingly accepted.
16. For the foregoing reasons the impugned detention order dated 28-9-92 (Ann. P. 1) is quashed. The detenu Arjunsingh in ordered to be set at liberty forthwith. The petition stands allowed with costs. Counsel fee Rs. 1000/- (One thousand).