JUDGMENT
M. Jagannadha Rao, C.J.
(1) Rule D.B. The detention order in this case under the Cofeposa is dated 29.3.1995 and several points have been raised by the writ petitioner. In regard to the contention that the reference was not made to the Advisory Board within Five weeks, counter affidavit has been Filed and the record of the Advisory Board has been verified by us and they show that reference was sent and was also received by the Advisory Board on 2.5.95. This point is found against the petitioner.
(2) The next contention raised is that the petitioner was brought to the Advisory Board without being informed that he was to be produced before the Advisory Board and therefore, he did not have any time to engage a lawyer before the Advisory Board. A separate affidavit dated 27.11.95 by the Superintendent Jail No.1 was filed staling that the detenu was informed and that his thumb impression was obtained on the letter No.F-5/7/95 Home-Pt-II dated 28.4.95 received from the Deputy Secretary Home P-II. This letter informs the petitioner about the meeting before the Advisory Board. The petitioner was produced before the Advisory Board. The photo copy of the receipt of the letter dated 28.4.95 has been filed as Annexure ‘A’ to this affidavit.
(3) After we looked into this Annexure filed Along with with this affidavit, it was noticed that the Annexure merely bears the thumb impression of the petitioner. There is no mention that the important things mentioned therein were explained to the detenu in a language known to him. A look at the said notice would show that following things have to be explained to the detenu: “YOUare, therefore, requested to enquire from the detenus whether he/they desire/s to be heard by the Advisory Board in person and if he/they so desire/s to make necessary arrangements for production before the Advisory Board on the given date, time and place.
(4) The Superintendent, Central Jail Tihar Jai.1 New Delhi where the detenue/s is/are under detention is being requested by an endorsement at the end of this notice to make necessary arrangements for the production of the detenu/s before the Board on the given date, time and place in case the detenu/s desire/s to be heard in person.
(5) You may kindly despute your Department representatives to be present at the time of hearing for giving all the relevant information on behalf of the Government to the Advisory Board pertaining to the detention.
(6) In case the detenu/s has/have made any representation three copies thereof with copies of the decision/comments if any, of the Government may also be sent atleast, two days before the date of meeting for information of the Advisory Board. THEDETENU(S) IS/ARE Permitted To Engage The Services Of A Counsel Or Friend At The Time Of Hearing Before The Advisory Board If HE/THEY Choose To Do SO.”
(7) Considering the practical aspect of the matter, it would be noticed that even if detenu was informed that he was to be brought before the Advisory Board on a particular date, unless he was informed in his,own language the various aspects contained in the above extract, the detenu would not be able to avail of those rights. The notice above referred contains an intimation that the Department’s representative will be present at the time of hearing by the Advisory Board. Once such a facility is given to the Department, the detenu will be entitled to have a counsel before the Board. This is clear from Article 22(1) read with decision of the Supreme Court reported in A.K.Roy vs. Union of India and another . This right is based on Article 14 of the Constitution. Unless there is material on record placed by the respondents that the contents of the notice in English language extracted above have been translated in a language known to the detenu and explained to him, it will be difficult for us to hold that the detenu was made aware of his rights and he did not avail of the same-language known to him and understood to him.
(8) Therefore, on the facts of the present case, we do not find that the detenu had proper opportunity to engage a counsel as he was not informed of this right in a language known to him.
(9) For the aforesaid reasons, under Article 226 read with section 482 Cr.P.C., the detenu will be released forthwith, if not required in any other case.