M.P. Menon, J.
1. The petitioner is the brother of one Sadasiva Sail, detained in the Central Prison. Trivandrum as per Ext. P1 order dt. 19-6-1984 of the State Government, issued in exercise of powers Under Section 3(1)(iii) and 3(1)(iv).of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. The prayer is for the issue of a writ of habeas corpus directing the release of the detenu.
2. The detenu belongs to Maharashtra State. He came to the Kerala State and settled down at Trichur more than a decade ago. Following seizure of 60 gold bars of foreign origin from one Pregna Mehta on 2-5-1984, officers of the Central Excise searched the business premises of the detenu at Trichur on 5-6-1984 and recovered 2974 gms. of gold (including 10 foreign marked gold biscuits). He was taken into custody, remanded and interrogated on two days. Statements were recorded on both occasions. The Collector of Customs & Central Excise proposed to the State Government that Sail be detained under the COFEPOSA with a view to preventing him from keeping or otherwise dealing in smuggled goods. The State Government accordingly passed Ex. P1 detention order on 19-6-1984, and the detenu was taken to the Trivandrum Central Prison on 21-6-1984. Grounds of detention drawn up in English and 49 documents containing material in support of the detention were served on him on the same day. Subsequently, on 30-6-84, Hindi versions of the grounds and the documents were also furnished. On 14-7-1984 the petitioner made Ext.P2 representation to the Central Government complaining that the detenu knew only Marathi and that the furnishing of grounds of detention and documents in other languages was insufficient in law ; but the same was rejected as per Ext.P3 dt. 8-8-1984. In the meanwhile, the detenu's case had been referred to the Advisory Board on 18-7-1984. The Board met on 6-8-1984, and after giving a personal hearing to the detenu, reported that there was sufficient cause for his detention. The detention was therefore confirmed by Ext. P4 order dt. 10-8-1984 for a period of one year.
3. On 7-8-1984 the detenu had made a representation to the State Government about his language difficulties. That was drawn up in English and endorsed in Hindi or Marathi. but that too was rejected by the State Government as per Ext.P5 communication dt. 25-8 1984. reading as follows :
With reference to the representation cited. I am to inform you that your contention that you do not know any language other than Marathi cannot be accepted since your own statement before the Customs Authorities is in Hindi. Therefore supply of the Marathi version of the documents is not found to be essential.
Your present representation in English makes it clear that you can understand English and can make representation in that language as well.
4. On the above facts the short point raised in the Writ Petition is that the detenu has been denied the opportunity of making an effective representation under Article 22(5) of the Constitution, inasmuch as the grounds-of detention and other particulars were communicated to him in languages unknown to him.
5. According to the counter-affidavit of the sponsoring authorities the detenu could speak and read Hindi and could 'write Hindi slowly'. His statements were recorded on 5-6- 1984 and 6-6-1984 with the aid of an interpreter. Questions were put to him by the Superintendent of Central Excise and these were translated into Hindi by Sri T.R. Samson, Inspector of Central Excise. The detenu answered the questions in Hindi and the answers were taken down by Sri Samson. The statement was thereafter read over to the detenu and he made an endorsement in Hindi that the recording was true and correct. According to the detenu the endorsement was in Marathi ; he could not read and write Hindi or Malayalam, though he could, to some extent, follow spoken Hindi and spoken Malayalam. It is ununecessary to go into this controversy because even assuming that he could read and write Hindi fluently that would be immaterial on the facts of the case and the true legal position. As already seen the grounds of detention served on Sri Sail on 21-6-84 were in English, Most of the accompanying papers were also in English. The Hindi version was made available only on 30-6-1984. Under Section 3(3) of the Act, grounds of detention have to be furnished to a detenu within five days. In exceptional circumstances and for reasons to be recorded in writing, the time can be extended up to 15 days. In the present Case, there were no exceptional circumstances and no reasons were recorded in writing for serving the Hindi version after 9 days. Furnishing of the said version on 30-6-1984 has therefore to be ignored for the purpose of Section 3(3). In Ibrahim Ahmed Batti v. State of Gujarat : 1SCR540 the Supreme Court has gone to the extent of holding that even where reasons for the delay are recorded in writing, non-communication of the same to the detenu would be fatal to the legality of his continued detention.
6. The only question therefore is whether supply of the grounds and other material on 21-6-1984, in the manner done on that day, could satisfy the requirements of law. There is an averment in the State's counter-affidavit that the detenu knows English and Malayalam, but this is not supported by any material. It was practically agreed at the hearing that the representation made by him in English on 7-8- 1984 was drafted and typed in English in the ofice of his counsel and all that the detenu himself had done was to make an endorsement thereon in Hindi or Marathi that it was read over and explained to him before affixation of signature. This representation cannot therefore be taken as evidence of the detenu's knowledge of English. In fact, most of the endorsements made by him in the various records seen in the file were made either in Hindi or in Marathi.
7. The grounds of detention served on 21- 6-1984, running to 14 close-typed foolscap sheets, were in English. Except one or two in Malayalam, all the other papers furnished on that date were also in English. In the absence of anything to show that the detenu was fairly conversant with English, conversant enough to read and understand the grounds and materials supplied to him, we have to hold that he was not given an effective opportunity to exercise his constitutional and statutory right. It is important to notice in this connection that the sponsoring authority, whose officers had questioned him on two different occasions, had no definite case that the detenu was conversant with English. Obviously the assistance of Mr. Samson was sought for because the Superintendent of Central Excise was not able to interrogate him in English.
8. The Addl. Advocate General would contend that the detenu had at no time objected to supply of the relevant papers in English or Hindi on grounds of language difficulty. Apart from the circumstances brought out by Ext.P2 representation made by his brother, and the representation made by himself on 7-8-1984 on the point, we think that the detaining authority has an obligation under the Constitution to do the needful, irrespective of whether the detenu asks for it or complains about want of opportunity. It is settled law that all the procedural requirements of preventive detention have to be strictly complied with, as conditions precedent for the validity of the detention, irrespective of whether the party raises objections or demands. These requirements, which are safeguards against exercise of power under a draconian law affecting the liberty of a citizen, and which are rooted in the Constitution itself, stand on a higher footing than the principles of natural justice, even the violation of which are sometimes considered fatal.
9. We are satisfied, on the facts and circumstances disclosed, that Sadasiva Sait was not given a reasonable and effective opportunity within the meaning of Article 22, or even the statute governing his detention. We accordingly declare his detention to be illegal and direct that he be set at liberty forthwith. The Original Petition is allowed as above.