Jagannatha Shetty, J.
1. This Petition under Article 226 of the Constitution is for a writ of habeas corpus against the State of Karnataka and the Senior Superintendent, Central Prison, Bangalore, to produce the petitioner's husband Sri H. Javerilal in Court and to set him at liberty.
2. This petition was heard by us on 24th August 1979. Upon concluding the arguments, for want of time to dictate the reasoned order, we then directed that the detenu should be released forthwith and the reasons for our conclusion would follow this week.
3. We, now proceed to set out our reasons for the order passed on that day.
The order of detention was apparently made by the State Government and it reads:
GOVERNMENT OF KARNATAKA
No. HD 32 SCF /79.
Karnataka Government &
Vidhana Soudha, Bangalore,
Dated: 17th July 1979.
Whereas, the Government of Karnataka are satisfied with respect to the person known as Shri H. Javerilal, S/o Sri Hastimalji of Messm Modern Watch Company No. 844, Chickpet, Bangalore that- with a view to preventing him from engaging in keeping smuggled goods, it is necessary to make the following order:
Now, therefore, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Government of Karnataka hereby direct that the said Sri H. Javerilal, S/o Sri Hastimalit be detained and kept in custody in the Central Prison, Bangalore.
By Order and in the name of the Governor of Karnataka
Sd/- R. A. Naik,
Commissioner for Home
Affairs and Secretary to
The grounds for detention accompanying the aforesaid order are as many as four tracing several past incidents connected with the detenu. They are closely typed In English, covering about seven pages.
4. The validity of' the order has been challenged before us on several grounds. The main ground of attack was that the order of detention was unconstitutional, as the grounds of detention were not communicated to the detenu as required under Art. 22(5) of the Constitution. We will consider this ground first before referring to other grounds urged by Sri Jestmal, learned counsel for the petitioner.
5. It was urged that the detenu does not know English and knows only Hindi, and the contents of the order and grounds of detention were not explained to him in the language known to him. It was also urged that the detenu was not even supplied any papers and stationery for making representation against the order. As against these allegations, the respondents in their return have stated thus:
'Pursuant to the order of detention the detenu was arrested on 17-7-1979 and he was forthwith served both with the order of detention and the grounds of detention by Sri Venkataramaniah, Detective Inspector, C. 0. D. Who has explained in Hindi truly and faithfully the contents of both the order of detention and the grounds furnished to him and an endorsement is obtained from the detenu in that regard and a true copy of the same is produced herewith as Annexure-1.
In para 5 of the counter, it was further stated: 'The further allegation that the detenu wanted to send a petition to this Hon'ble Court and that he was not supplied with any paper or stationery by the Jail authorities is totally false. The further allegation that the Jail authorities did not provide him with paper even to seek for an interview with the petitioner is not true. The detenu is provided with every facility asked for an it is submitted that the Senior Superintendent of Central Prisons, Bangalore, was visiting the Barrack in which the detenu was being detained on every working day to enquire about the needs of the detenu, and no request was made by the detenu and no facility permissible under the Rules was denied to him.'
6. The return is accompanied by an affidavit sworn to by Venkatramaniah, Detective Inspector, C. 0. D, Bangalore, in which he affirmed that he did explain to the detenu the, contents of the order and the grounds of detention in Hindi. The original endorsement said to have been obtained from the detenu have been produced before us along with the connected file. The said endorsement's are also in English. Down below the endorsements, there is a signature of the detenu.
7. When the detenu was produced before the Court on 23rd August, 1979, he has filed an affidavit stating that Sri Venkataramaniah did not explain to him the contents of the detention order and the grounds in Hindi and no endorsement whatsoever was made in his presence. He has further stated that his signatures were only taken on the copies of the order of detention and the grounds of detention. He has also asserted that he was not given papers by the Jail authorities even for addressing any letter to his family members leave alone to make a representation to the Court or to any other authority.
8. On these assertions and denials coupled with the supporting affidavits of parties, the question that 'falls for decision is whether there was sufficient compliance with the requirements of Art. 22(5). We may assume that what has been stated in the return is correct and represents the true version of what actually transpired. Still, we do not think that there was a sufficient compliance with the mandatory requirements of Art. 22(5).
Article 22(5) provides:
'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.'
9. The 'communication' of the grounds which is required by the earlier part of the clause (5) is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause. Communication in this context, means imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the detention order is based. It therefore follows when a person does not know English and knows only Hindi the grounds of detention should be communicated to him in Hindi only. A case almost identical to the one before us came up before the supreme Court in Harikisan v. State of Maharashtra, : AIR1962SC911 . Therein, the detenu was served with the grounds of his detention which covered five closely typed pages in English. The order of detention was stated to have been orally explained to him by the Police Officer detenu Nagpur was an endorsement in that case also. Dealing with the contention, that such explaining to the detenu was not sufficient compliance of Art. 22(5), Chief Justice 'Sinha', speaking for the Constitution Bench observed:
'In this case the grounds are several and are based on numerous speeches said to haw been made by the appellant himself on different occasions and different dates. Naturally, therefore, any oral translation or explanation given by the Police these on the detenu would not to communicating the grounds communication in bringing home to the detenu effective knowledge of the facts and circumstances on which the order of detention is based'.
The learned Chief Justice continued:
'If the detained Person is conversant with the English language, he will naturally be in a Position to understand the gravamen of the charge against him and the facts and circumstances on which the order of detention is based. But to a Person who is not so conversant with the English language in order to satisfy the requirements of the 'Constitution, the detenu must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.'
10. Learned Advocate-General, however, submitted that it is not invariably a must in every case that the grounds of detention should be served in a script familiar to the detenu. He relied upon another decision of the Supreme Court in Bhola Bhuiya v. State of West Bengal, : 1974CriLJ1462 . In that case, a contention similar to the one urged before us was rejected by stating thus:
'On the last occasion w hen this matter had come up for hearing the Court had asked the respondent, the State of West Bengal, to make an affidavit on the question whether the grounds furnished to the petitioner were explained to him in a language which he could, understand. Accordingly, an affidavit has been field by
Mr. S. K. Saha, the Police Inspector, who served the detention order and the grounds on the petitioner. That affidavit shows that the grounds of, detention were explained to the petitioner in Hindi which is the language that the petitioner understands. There is therefore no substance, in the contention that the order of detention is vitiated on account of non-compliance with the provisions of Art. 22(5) of the Constitution.'
In the above decision, we do not have the full facts. We do not know whether the facts in that case are similar to the one before us. Since the facts of the present case are almost similar to the one dealt with by the larger Bench of the Supreme Court in Harikisan's case : AIR1962SC911 , we have got to follow that decision.
11. It is not known to us that the detenu knows English either to read or to talk. He has expressly stated that he does not know English and he does not know any other language except Hindi. The provision relating to the service of grounds is not a mere formality. It is to enable the detenu effectively to make representation. Mere oral explanation of a complicated order of the nature without supplying the detenu the translation in script familiar to him, in our view, amounts to denial to of the right, guaranteed under Article 22(5).
12. In. the view that we have taken, it seems to us that it is unnecessary to advert to the other contentions urged by Sri Jestmal.
13. Before parting with the case, we are constrained to note a disturbing feature in this case. The petitioner and also the detenu have stated and reiterated that the detenu has not been furnished with any papers or stationery in spite of his asking for it for the purpose of making representation or to write a letter to his family members. These averments, of course, have been denied by the respondents in the affidavit sworn to by Sri R. A. Naik, the then Commissioner for Home Affairs and Secretary to Government, Home Department. His knowledge regarding the said allegations are not personal. It would have been proper for the second respondent himself to filed an affidavit in this connection. Failure on the part of the second respondent to file an affidavit leaves us in doubt whether the detenu has been afforded with all the facilities to make representation against the order of detention. Preventive detention is a serious invasion of personal liberty and such meager. Safeguards as the Constitution has provided must be scrupulously observed by the authorities and jealously watched and enforced by the Court. We hope that the 2nd respondent would not give room to any such complaint here afterwards by any detenu.
14. Petition allowed.