Judgement

RANGANATH MISRA, J. :- By this application under Art. 32 of the Constitution the wife of the detenu Wang Chuk assails the order of his detention under S. 3(l) read with S. 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA Act") made on July 21, 1986 by the Administrator of the Union Territory of Delhi. The detenu is of Ladakhi origin and has been residing at Delhi for some time. The grounds served on him along with the order of detention stated that on March 18, 1986, the Customs Authorities on the basis of previous information in their possession intercepted the vehicle in which the detenu was travelling and inquired of him if he was in possession of contraband or smuggled gold. He answered in the affirmative and disclosed that he was carrying smuggled gold packed in a piece of cloth. At the Customs House where he was taken, 36 pieces of gold with foreign markings valued at a little more than three lakhs and seventy-three thousand rupees (Rs. 3,73,000/-) were recovered from the cloth pack. When the detenu failed to produce authority in support of the possession of it, the same were seized under the Customs Act as also the Gold Control Act. As a follow-up action, the residential premises of the detenu were searched and from there 11 pieces of gold with foreign markings, 65 cut pieces of gold of foreign origin, fifteen thousand U.S. Dollars and Indian currency of Rupees five lakhs sixty-two thousand and two hundred (Rs. 5,62,200) were recovered. The detenu failed to produce relevant papers though he claimed these articles. They too were seized.

2. The detenu admitted the recovery but maintained that one Puchung, owner of Hotel Kanchan in Nepal owned these articles and the detenu held them for him on the understanding that as and when Puchung asked for the whole or any part of them, the same would be delivered to him. Puchung had been visiting the detenus house now and then for the said purpose. The detenu was arrested but was enlarged on bail. The detaining authority relying upon the materials available in the proceedings before the Customs Authorities made the order of detention. Along with the order of detention the grounds in support thereof were supplied to the detenu. Copies of 17 documents as indicated in Annexure C were also supplied to him.

3. The detenu made a representation against the detention and the Advisory Board afforded a personal hearing to him on the 7th and the 9th of October, 1986. His detention has been confirmed.

4. In response to the rule, the respondents have made a return and in the affidavit justification for the order has been given. Rejoinder has been filed by the petitioner. Mr. Jethmalani appearing in support of the writ petition has advanced three submissions and they are :

(1) The detenu has been denied a fair and adequate opportunity of representing against his detention inasmuch as the grounds of detention and copies of the documents accompanying the grounds were not in English language and copies thereof have been furnished in Tibetan language while the detenu knew only Ladakhi; and copies of all the material documents shown in Annexure C were not supplied to him.

(2) The representation made by him dated 6/12-9-1986 was not sent to the Advisory Board in good time and reached the Board either on the date of hearing or after the hearing which spread over two days had begun ; and

(3) The order was vitiated as the detaining authority did not apply its mind to the relevant papers before making the impugned order.

5. Before we proceed to deal with the matter on merits, certain aspects which came to be noticed during the hearing though not specifically pleaded may first be indicated.

6. The petitioner annexed to the writ petition a list of documents marked as Exhibit C said to have been supplied to the detenu along with the grounds of detention. In all 17 items were shown therein. Learned Additional Solicitor Gen