1. The detenu in this case is detained under the CO-FEPOSA Act vide order dated 23rd April 1982. It is an admitted position that together with the Wounds of detention copies of the translated version in Malayalam of the documents and statements enumerated at Items Nos. 1 to 5 of the list of documents were supplied to the detenu. Thus in substance the copies of these documents in original, which were in English language were not supplied to the detenu together with its Malayalam translation. It is also an admitted position that so far as the documents at. Items Nos. 6. 7 and 8 are concerned, the only English copies of the said documents were supplied and their Malayalam translation was not supplied to the detenu. In the petition it is stated by the petitioner that uptil now in all matters relating to detentions under COFEFOSA Act. the detaining authority used to supply copies of the statements and documents in original English language and translated version of those documents was also supplied for the benefit of the detenu if he was not conversant with the English language. In spite of this, in the present case the copies of documents in English were not supplied and only Malayalam translation is supplied to the detenu.
2. Shri Merchant the learned Counsel appearing for the petitioner-detenu contended before us that because of the non-supply of the original English copies of the documents, deienu's right to make an effective representation under Article 22(5) of the Constitution is violated. According to the learned Counsel though it is stated in the grounds of detention 'that the copies of statement and documents placed before the detaining authority as mentioned in the accompanying list are enclosed', in fact copies of the documents and statements as placed before the detaining authority were never supplied to the detenu. He has further stated that from the affidavit, filed on behalf of the detaining authority, it is further clear that there was apparent mistake between the original English documents and the translation so far as the grounds of detention are concerned. This position is admitted by Shri Chougule, the then Secretary to the Government of Maharashtra. Home Department-, in para 8 of his affidavit. Shri Merchant, then submitted that the communication of the grounds is not complete and perfect until copies in original language are also supplied to the detenu, because in that case it is not possible for the detenu to compare the translation with the original so as to ascertain whether the translation is true and correct translation or not. Shri Merchant has also raised a contention that, in a given case a representation against the order of detention could be drafted by and made through a legal practitioner. The detenu is also entitled to take help of a friend for drafting the representation and in a given case he can seek assistance of his next friend to represent his case before the Advisory Board, Since the copies of the documents in original language were not supplied to the detenu and his next friend, and lawyer were not conversant with the Malayalam language his right to make an effective representation under Article 22(5) of the Constitution is violated. He also contended that because the copies of the documents were not supplied in English language his lawyer had a difficulty in filing this writ petition, and he could not file or attach necessary annexures to this petition. Nobody was also available who could translate the documents from 'Malaya-lam' to English for the benefit of his lawyer or this Hon'ble Court.
3. On the other hand it is contended by Shri Kotwal that under Article 22 (5r as well as Section 3(3) of the COFEPOSA Act, the obligation upon' the detained authority is to communicate to the person detained all the grounds on which the order of detention is based. In the present case as the detenu knew Malayalam language copies of the translated documents were supplied to him in Malayalam. This is substantial compliance with the provisions of Section 3(3) of the Act, as well as Article 22(5) of the Constitution. It is not obligatory on the part of the detaining authority to supply the copies of the documents in original language also. Therefore according to Shri Kotwal it cannot be said that only because the translated copies of the documents in Malayalam were supplied to the detenu, his right to make an effective representation under Article 22(5) has been violated. In support of this contention Shri Kotwal drew assistance from the decision of the Supreme Court in : 1982CriLJ799 Devji Vallabhbhai Tandel v. Administrator of Goa, Daman and Diu and : 1981CriLJ1825 Wasi Uddin Ahmed v. District Magistrate, Aligarh, U.P.
4. For properly appreciating the controversy raised before us it will be worthwhile if a reference is made to the decision of the Supreme Court in Smt. Icchudevi v. Union of India : 1SCR640 . After analysing the scheme of COFEPOSA Act as well as the provisions of Article 22(5) of the Constitution. The Supreme Court held that these provisions contemplate that the grounds of detention in its entirety must be furnished to the detenu. If there are documents, statements or other material relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not, therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other material relied upon in the grounds of detention must also be furnished to the detenu. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu at 'the earliest opportunity, to make a representation against his detention, and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished conies of documents, statements and other materials relied upon in the grounds of detention.
5. Then in Lallubhai Jogibhai Patel v. Union of India : 1981CriLJ288 . the Supreme Court held that the word 'communicate' is a strong word. It means 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. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. 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 the constitutional mandate in Article 22(5) is infringed. Thus, communication of the ground is not complete unless it is communicated in the language which the detenu understands.
6. Thereafter in : 1981CriLJ353 Kamla v. State of Maharashtra, after making a reference to Smt. Icchudevi's case : 1SCR640 and to Smt. Shalini Soni's case : 1980CriLJ1487 this is what the Supreme Court has observed in paras 5 and 6 of the judgment:
5. This court in Maneka Gandhi v. Union of India : 2SCR621 has widened the horizon of Article 21 and added new dimensions to various features of and concept of liberty enshrined in Article 21. In view of the decision in the aforesaid case Article 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Article 21 has to be reasonable, fair and just, then the words 'effective representation' appearing in Article 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. If the words 'effective representation' are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Article 22(5) but also of Article 21 of the Constitution.
6. Thus, we are of the opinion that in view of what has been laid down in Maneka Gandhi's case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test (1) that the protection and the guarantee afforded under Article 22(5) is complied with, and (2) that the procedure is just and reasonable. In this view of the matter unless the materials and documents relied on in the orders, of detention are supplied to the detenu along with the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.'
7. Then in A. K. Roy v. Union of India : 1982CriLJ340 Supreme Court observed in para 93 of the judgment that:
We would, however, like to say that by this judgment we are neither affirming nor disapproving of the decision in Francis Coralie Mullin to the effect that the detenu has a right to consult the lawyer of his choice for the purpose of preparing his representation, advising him as to how he should defend himself before the Advisory Board and preparing and filing a habeas corpus petition or other proceedings for securing his release.
Then in para 95 this is what, the Supreme Court has observed:
Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import. is entitled to be heard in those proceedings and be assisted by the friend. A detenu, taken straight from his cell to the Board's room, may lack the ease and composure to present his point of view. He may be 'tongue-tied', nervous, confused or wanting in intelligence' (See Pett v. Greyhound Racing Association Ltd. 1969 1 QB 125 and if justice is to be done, he must at. least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts disheveled. Just as a person who is dumb is entitled, as lie must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se. and therefore if a statute excludes that facility expressly, if. would not be open to the Tribunal to allow it. Fairness, as said by Lord Denning M. R. in Maynard v. Osmond. (1977) 1 QB 240. can be obtained without legal representation. But it. is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility.
8. In Balchand Chorasia v. Union of India : 1978CriLJ159 , the Supreme Court held that the representation made by the counsel on behalf of and under the instructions of his client, the detenu, should be considered by the Government as the provision of Article 22(5) should be construed liberally and not technically so as to frustrate or defeat the concept of liberty which is engrained in Article 21 of the Constitution.
9. Therefore it. is clear that a representation could be filed by or through a legal practitioner: and the detenu is entitled to be heard, or assisted by a friend in the proceedings before the Advisory Board. He is also entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of law. If the friend or the legal practitioner is not conversant with the language in which the documents are supplied, in the present case with the Malayalam language, then the so-called right of consultation with a friend or the legal practitioner in the matters of drafting the representation will become wholly illusory. Such a procedure will not be reasonable, fair and just as the detenu is denied reasonable opportunity of making effective representation. The procedure followed does not provide a. real and meaningful opportunity to, the detenu to explain his case to the authorities concerned, by making a proper representation. It cannot be forgotten that communicating the grounds of detention in the language which detenu understands is in nature of extension of right and not its curtailment. This additional obligation is cast on the detaining authority to make the right more effective, real and meaningful.
10. As observed by Supreme Court in Kamla v. State of Maharashtra : 1981CriLJ353 , it is manifest that when the detaining authority applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials referred to in the order of detention, prepared and attaching the same along with the grounds of detention, if the detaining authority is really serious in passing a valid order of detention. It appears to be an admitted position, that up-till now copies in original language together with the translated script were supplied to the detenu. It is really surprising as to why this procedure was abruptly changed. However we are informed by Shri Kotwal that earlier procedure is again revived and is being followed. To say the least translation cannot take place of original. Translations are not made nor are verified by the detaining authority. Normally the work of translation is left to subordinate officers or to reporting department. The translations are not made by experts or official translators. It is a free translation of the original. In some cases it is noticed that while translating some portion from the original is wholly omitted. Sometimes there are apparent mistakes in two versions. In the present case also in the affidavit, it is contended by the detaining authority that in the grounds of detention in English there is a typographical mistake which was duly corrected while translating the grounds of detention in Malayalam. This is indicative as to why both original as well as translated copies should be supplied to detenu. Unless this is done detenu will not be in a position to ascertain whether the translation is faithful, and true. Such a view seems to have been taken by this court in Criminal Appln. No. 236 of 1982 Sayed v. State of Maharashtra decided on 6th August, 1982 by Rege and Jamdar JJ. This is what the Division Bench observed in para 9 of the judgment:
It is not disputed that, the original of the Mahazars (panchanamas) which relate to the searches of the two houses of the detenu (Sr. Nos. 9 and 11) and to the search of the house bearing No. 126/A Thaikba Street, Kayalpattinam were not furnished to the detenu and that only English translations were. given to him. The originals are in Tamil and it is rightly contended on behalf of the detenu that the detenu had no proper opportunity, to ascertain whether the English translation of the panchanamas were correct.
11. This question has one more aspect. Suppose to an illiterate detenu the grounds of detention and the documents, statements and other materials relied upon, are orally explained, in the language he understands, then in such a case can it be said that the provisions of Section 3(3) of the COFEPOSA Act and Article 22(5) of the Constitution are complied with only by orally explaining the grounds of detention to the detenu and he need not be supplied with any documents in writing at all. This will run counter to the law laid down by Supreme Court in Lallubhai's case : 1981CriLJ288 and in Surjeetsingh v. Union of India : 1981CriLJ614 . The oral explanation of the contents of the documents is in addition to the supply of the documents themselves and not a substitute for it. Similarly while communicating the grounds of detention, furnishing copies of the grounds in the language with which the detenu is conversant, is in addition to the supply of copies of the documents in original language and not a substitute for it. In our opinion unless such a view is taken the very purpose behind Article 22(5) will be frustrated. The subjective satisfaction of the detaining authority is based on the original documents placed, before it. Therefore if supply of mere translated copies of documents to the detenu is treated as substantial compliance with the Article 22(5) then in substance the documents Disked before the detaining authority are not supplied to the detenu at all. This is more so in the field of preventive detention where while exercising peripheral jurisdiction investigation as to the truthfulness of the facts forming the basis of the grounds of detention cannot be embarked.
12. The decisions on which reliance is placed by Shri Kotwal is of little assistance. Admittedly such a controversy was not involved in the said cases. Shri Kotwal wanted to draw assistance from the decision of the Supreme Court in Devji Vallabhbhai's case : 1982CriLJ799 in which while mentioning the facts it was stated that Gujarati version was supplied to the detenu. According to Shri Kotwal this implies that the documents in the original language were not supplied. It is not possible for us to place, such a construction on the facts stated in the judgment. It is not clear from the judgment as to whether the original documents were in Gujarati itself or in any other language. It is also not known as to whether the copies of original documents together with Gujarati translation were supplied to the detenu. It is well settled that precedents on legal propositions are useful and binding but the variety of circumstances and peculiar features of each case cannot be identical. Since in the present case the copies of the documents in the language in which they were placed before the detaining authority, were not supplied to the detenu, his right to make an effective representation within the meaning of Article 22(5) of the Constitution was violated. Since the petitioner is entitled to succeed on this ground alone it is not necessary to consider and decide other contentions raised and argued before us.
In the result rule is made absolute and the detenu is directed to be released forthwith, if not required in any other case.