TSERING DOLKAR versus ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS.

Citation: [1987] 2 S.C.R. 323 · Decided: 18-02-1987 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Case Allowed

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Judgment (excerpt)

TSERING DOLKAR 
A 
v. 
ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS. 
FEBRUARY 18, 1987 
[R.S PA1HAK, CJ AND RANGANA1H MISRA, J.] 
B 
Constitution of India, 1950: Article 22(5). 
rJ 
Conservation of Foreign Exchange & Prevention of Smuggling 
j 
1r' 
Activities Act, 1974; SS. 2(f) & 3( 1). 
Preventive Detention-Grounds of detention and copies of docu-
ments not in language understood by detenu-Validity of detention 
order. 
Practice & Procedure: 
Detention order challenged on ground of non-application of 
mind-Return to the rule-Utmost care to be taken in making the 
affidavit of return. 
c 
D 
The husband of the petitioner, who is of Ladakhi origin, was 
found by the Customs authorities in possession of considerable quantity E 
of gold with foreign markings and Indian currency. A large number of 
gold pieces of foreign origin, Indian currency and US dollars were also 
recovered from his residence. He failed to produce the relevant papers 
though he claimed these articles. He admitted the recovery but 
maintained that he held the articles for a third person. 
F 
The detaining authority relying upon the materials available in 
the proceedings before the Customs authorities made an order of deten-
tion under s.3(1) read with s.2(f) of the Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974. The 
grounds in support of that order and copies of 17 documents were 
supplied to the detenu alongwith it. The representation made by him G 
against detention was rejected by the Advisory Board. 
In the writ petition under Article 32 of the Constitution it was 
contended for the petitioner that the detenu has been denied a fair and 
adeqnate opportunity of representing against his detention in as much 
as the grounds of detention and the copies of documents accompanying 
323 
H 
A 
B 
c 
324 , 
SUPREME COURT REPORTS 
[1987] 2 S.C.R. 
the grounds were fiirnished in Tibetan language while the detenu knew 
only Ladakhi, that copies of all the material documents shown in the list 
were not supplied to him, tlilat the order was vitiated as the detaining 
authority did not apply its mind to the relevant papers before making 
the impugned order, and that the representation made by him was not 
sent to the Advisory Board in good time. 
Allowing the writ petition, the Court, 
HELD: 1.1 The requirement of law within the provisions of Art. 
22(5) of the Constitution is tlilat the detenu has to be informed about the 
grounds of detention in a language which he understands. The fact that 
the detenu's wife knew the I:onguage in which the grounds were framed 
did not satisfy the legal requirement. This denied to the detenu a fair 
and adequate opportunity of making an effective representation against 
his detention. [329D-E] 
1.2 In the matter of preventive detention, the test is not one of 
D 
prejudice bot one of strict compliance with the provisions of the Act and 
when there is a failure to comply with those requirements it becomes 
difficult to sustain the order. [329G-H] 
E 
The requirements of law having not been met the order of deten-
tion in the instant case, cannot, therefore, be supported. [330C] 
Hadibandhu Das v. District Magistrate Cuttack & Anr., [1969] 1 
SCR 227 and Prakash Chandra Mehta v. Commissioner and Secretary, 
Government of Kera/a & Ors., [1985] 3 SCR 697, referred to. 
2. The respondents have acted in a casual manner and have failed 
F 
to realise what amount of care has to be taken in making a return to the 
rule in a matter involving cllJallenge to preventive detention. In the list 
of documents supplied to the detenu alongwitb the order of detention in 
all 17 items were shown whereas in the record of the detaining authority 
produced before the Court 18 items in all were mentioned. A copy of the 
letter of the Collector of Customs dated June 11, 1986 in reply to 
G 
petitioner's letter dated April 19, 1986 was not included in the list of 
documents and supplied to the detenu, Furthermore, the letter of the 
Collector of Customs dated June 23, 1986 to the deteno was not in reply 
to the detenu's letter dated April 28, 1986 as mentioned in the return. 
When the allegation was that there was no application of mind in the 
making of the order of detention, the return should have come either 
H from the detaining authority or a person who was directly connected 
TSERING DOLKAR v. U.T. OF DELHI [MISRA. J.] 
325 
with the making of the order and not by a person who filed the affidavit 
on 

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