Gujarat High Court
Sidiq Haji Ismail vs State Of Gujarat And Ors. on 29 September, 1988
Equivalent citations: (1989)1GLR354
JUDGMENT A.P. Ravani, J.
1. The petitioner has been detained on March 3, 1988 pursuant to the order of detention dated February 17, 1987 passed under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Act') with a view to preventing him from abetting the smuggling of goods.
2. It is disclosed from the grounds of detention that the petitioner-detenu was in contact with one Gurumukhsingh who was the owner of tanker bearing Registration No. MWF 4137. The said Gurumukhsingh had told his driver Amriksingh Harnamsingh that he had shown the tanker to the detenu and to identify the tanker as well as the driver, when driver Amriksingh reaches at Rajkot. Driver Amriksingh and Kuldipsingh Baldevsingh Sohata, cleaner of the tanker had reached Rajkot on December 21, 1986. There the detenu contacted the driver and took the same tanker to Una on the same day i.e. on December 21, 1986. The detenu asked the driver to go to Junagadh and wait for him. Thereafter the detenu went to Salaya and met Haji Haji Ismail (who is a well-known smuggler as disclosed in the grounds of detention and who is the brother of the detenu as stated by the detenu before the Advisory Board. This is evident from the record of the Advisory Board which has been shown to us at the time of hearing of this petition). Thereafter on December 22, 1986 in company with the said Haji Haji Ismail and others, the detenu went to Una in truck No. GRP 5213. Thereafter the detenu had taken the aforesaid tanker MWF 4137 near the coast of village Chhara on the night of December 25, 1986. At the coast of village Chhara, the detenu along with Haji Haji Ismail contacted over walkie-talkie, the mother vessel which was bringing contraband goods. Then the detenu had helped in landing of packages of contra - band goods on the sea coast and later on transhipping the same in tanker No. MWF 4137 and truck No. GRP 5213. Thereafter the tanker was being taken to Dahisar Naka as per the instruction given by the detenu. When the tanker was taken towards Una, on way near village Simasi signals of torch were seen and ultimately the tanker was intercepted in the outskirts of village Nathad. At the time when the tanker was intercepted, it was being driven by Amriksingh Harnamsingh Gill. Kuldipsingh Baldevsingh Sohata and Vilayathussain Bada Saheb Nakvi were also there in the tanker. On examination, 50 packages of silver and 49 packages of wrist watches etc. were found from the three compartments of the tanker. The aforesaid 50 packages of silver contained 50 slabs of silver weighing 1539-605 kgs. valued at Rs. 66,97,281-75 and 49 packages of wrist watches contained wrist watches and zip fastners of foreign origin valued at Rs. 47,59,370/-. The total value of the contraband articles was Rs. 1,14,56,651-75. The aforesaid goods were seized by the officers of the Customs Department under the reasonable belief that the same were smuggled goods liable to confiscation under the provisions of Customs Act, 1962.
3. After the statements were recorded and the investigation was made, proposal to detain the petitioner and other persons was made and ultimately order of detention was passed on February 17, 1987. Some of the persons against whom the orders were passed were detained immediately and some of them are still absconding. The petitioner-detenu surrendered himself on March 3, 1988 and on that date be was served with the order of detention and he was detained pursuant to the aforesaid order.
4. On March 23, 1988, the declaration making authority made declaration under Section 9 of the Act which is produced at Annexure 'D' to the petition. By this declaration, the authority declared that the petitioner was detained as per order under Section 3(1) of the Act with a view to preventing him from abetting the smuggling of goods. That the authority was specially empowered in this behalf by the Central Government and he has carefully considered "the grounds of detention and the material served on the detenu" and that he was satisfied that the detenu was likely "to abet the smuggling of goods into and through the coast of Chhara which is an area highly, vulnerable to smuggling as defined in Explanation I to Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974".
5. The petitioner was afforded an opportunity of being heard and making representation before the Advisory Board. He, in fact, appeared before the Advisory Board on July 21, 1988. The Advisory Board had opined that there was sufficient cause for continued detention of the detenu.
6. The petitioner has challenged the legality and validity of the order of detention by filing this petition. Learned Counsel for the petitioner has contended that the declaration under Section 9(1) is illegal. It is submitted that the declaration making authority has not made similar declaration in respect of other persons also who have been, according to the detaining authority, found guilty of indulging in abetting the smuggling of goods. Such other persons were (1) Amriksingh Harnamsingh Gill, driver of the tanker, (2) Kuldipsingh Baldevsingh Sohata, cleaner of the tanker, (3) Vilayathussain Bada Saheb Nakvi, (4) Chhagan Haribhai Kuchhadia @ Chhagan Langdo, (5) Umar Musa Bhaya and (6) Daud Suleman Gandhar. It is contended that when the declaration making authority considered the case of the detenu, it was his bounden duty to consider the material with respect to each and every individual involved in the alleged illegal transactions and/or activities. If on this material it was found that other persons were also guilty of abetting the smuggling of goods like the petitioner, and when the declaration making authority has come to the conclusion that similar declaration is not required to be passed in cases of other persons, no such declaration should have been made in respect of the petitioner also.
7. In support of the aforesaid submission, learned Counsel for the petitioner has relied upon a decision of this High Court in the case of Chaturbhai Becharbhai v. State of Gujarat reported in 1979 GLR 570. In that case the detenus were three brothers. One Ishwarbhai was stationed at Bombay, Kantibhai was stationed at Rajkot and Ambalal was stationed at Ahmedabad for their business purposes. It was alleged that they used to receive smuggled gold from one Jadavji of Bombay and the said gold was carried by an employee of the firm of the aforesaid three brothers from Bombay to Ahmedabad and from Ahmedabad it was being sent to Rajkot and from Rajkot it was being delivered to one Chandulal Jethalal Bhindi in Rajkot. The aforesaid three brothers were detained while Jadavji of Bombay and Chandulal Bhindi of Rajkot were not detained. In view of this position, it was submitted before the Court that since the aforesaid principal offenders have not been detained on the same material the subjective satisfaction reached by the detaining authority for exercising the power under Section 3(1) of the Act cannot be said to be genuine.
8. The defence was that as per the guidelines issued by the Central Government, orders of detention were not to be passed by the State Government authority in respect of the principal culprits. The Court held that such guidelines could not have been taken into consideration and it was an extraneous consideration which entered in the field and therefore, the satisfaction arrived at by the detaining authority was not genuine. Thus the aforesaid decision of this High Court turns on the facts of that particular case. In that case no principle of universal applicability has been laid down by this High Court that whenever a principal offender or co-accused or an accomplice is let off or not detained, the detention order in respect of others should be quashed and set aside. The entire decision turns on the facts of the case. On facts it was held that the satisfaction arrived at by the detaining authority, on the basis of the material placed before him was not genuine. If any observations in the aforesaid judgment are sought to be read as laying down a broad general proposition that whenever there is failure to detain a principal co-accused or an accomplice it always indicates that there is no genuine satisfaction for detaining other persons involved in the illegal and objectionable activities then in our considered opinion, such observations cannot be held to be good law.
9. We are fortified in our view by a recent decision of the Supreme Court in the case of Yogendra Murari v. State of U.P. reported in 1988 (3) JT (SC) 351 Writ Petition (Criminal) No. 259 of 1988 decided on 8th August, 1988 (Coram: L.M. Sharma & N.D. Ojha, JJ.)). That was a case under National Security Act, 1980. On account of certain incident which resulted in a criminal case against the detenu and others, the detaining authority was satisfied that the activity of the detenu was prejudicial to the maintenance of the public order and hence passed the order of detention. It was inter alia contended that in the incident which was made the basis of detention, 14 persons besides the petitioner were made accused and the authority had illegally discriminated against the petitioner in detaining him while the other have been left free. While considering this contention in para 9 of the judgment the Supreme Court has held as follows :
There is no merit whatsoever in the petitioner's grievance of discrimination on the ground that the other co-accused persons have not been detained. The role of the petitioner and that of the others are not identical and the reasonable apprehension as to their future conduct must depend on the relevant facts and circumstances which differ from individual to individual. It would have been wrong on the part of the detaining authority to take a uniform decision in this regard only on the ground that the persons concerned are all joined together as accused in a criminal case.
In the instant case, in the affidavit-in-reply filed by Shri C. Rajan, Under Secretary to the Government of India, Ministry of Finance Department of Revenue, New Delhi, it is stated that the specially empowered Officer of the Government of India after carefully considering the grounds of detention and the material placed before him arrived at the satisfaction that the detenu's case is a fit one for invoking the provisions of Section 9(1) of the Act audit is so specifically stated in the declaration itself. In the affidavit-in-reply it is further submitted that "each case has to be examined on merits and there is no colourable exercise of power in this regard".
10. In our view the stand taken by the respondent-authority appears to be just and proper. While considering the case of a particular individual what is required to be taken into consideration is the entire relevant material against that individual concerned. The authority exercising power under Section 3(1) of the Act, (and for that matter under Section 9(1) of the Act also) is duty bound to take into consideration the entire relevant material against that particular individual. It may be that such material may be relevant in case of other individual also. It is a basic and elementary principle of administrative law that the authority exercising powers and particularly the powers of detention without trial, should take into consideration all the relevant aspects and relevant material pertaining to the issue involved. Such authority is also required to be careful to see that no irrelevant material and/or factors enter into consideration. The decision with regard to other individual is not a relevant circumstance at all unless it is shown that on the same material the other person is let off and the power exercised in respect of the person concerned is exercised with mala fide and/or in a discriminating manner. It is not the case of the petitioner that he has been discriminated. His case is that while considering the case against him papers regarding all persons should have been considered by the declaration making authority. This contention cannot be accepted.
11. While deciding the case of one individual, the entire material which is relevant against that individual should be taken into consideration and not the material or the case of other persons involved in the activities. It is not brought to our notice that anything relevant has been left out of consideration and some irrelevant factor has been taken into consideration. In all such cases, the role played by each individual has got to be taken into consideration by the authority concerned. In this case the detenu who is the brother of known smuggler Haji Haji Ismail appears to have contacts at both ends i.e. Bombay with one Gurumukhsingh, the owner of the tanker and at the sea coast near village Chhara with the persons occupying the mother vessel which brought contraband goods. None of the other persons involved in the entire transaction appears to have contacts at both the ends. Other persons who are involved in the transaction have also abetted the smuggling of goods. But the degree of abetment differs. The labourers who off-loaded the goods from the mother vessel and brought the same near village Chhara and loaded the same into the truck also can be said to be abettors. But their degree of abettment would be of minimum nature. It appears from the papers that none of them is detained. Even so, it is obvious that the order of detention cannot be challenged on the ground that none of the labourers though proved to have abetted in smuggling of goods is detained, and therefore the order of detention in respect of the petitioner and other persons on the charge of abettment of smuggling goods is bad. Similarly the declaration under Section 9(1) of the Act in respect of the petitioner-detenu cannot be challenged on the ground that other persons who have been detained on the ground of abetting the smuggling of goods have been left out and in respect of them the order of declaration under Section 9(1) is not passed.
12. In the instant case it may also be noted that declarations under Section 9(1) of the Act were issued in respect of one Gani Daud Gandhar and Amriksingh, the driver of the tanker as well as in respect of the petitioner-detenu. This clearly indicates that the authority making declaration under Section 9(1) of the Act has taken into consideration the facts and circumstances of each individual case and has come to his own conclusion with regard to the individual case. This on the contrary indicates that there is application of mind to the case of each one of the persons involved in the entire transaction. In respect of some persons declaration under Section 9(1) of the Act is not issued though they have abetted the smuggling of goods. To say that in respect of all other persons who are involved in abetting the smuggling of goods similar declaration under Section 9(1) of the Act ought to have been passed would result into mechanical passing of order by the declaration making authority without applying the mind. On the contrary the declaration making authority was required to arrive at a satisfaction qua each individual after looking at the relevant material pertaining to each one of them. In above view of the matter the contention cannot be accepted and the declaration made under Section 9(1) of the Act in respect of the petitioner-detenu cannot be said to be illegal and void either on the ground of alleged non-application of mind or on the ground of discrimination or mala fides.
13. Learned Counsel for the petitioner has submitted that declaration under Section 9(1) of the Act is vitiated inasmuch as the declaration making authority Mr. A.C. Saldanha who is Additional Secretary to the Government of India, does not know Gujarati language and he was not supplied with the translation of documents which were the basis of making declaration, la the affidavit-in-reply it is made clear that the grounds of detention and other documents were duly translated in English and the same were placed before the authority making declaration.
14. By way of amendment in the petition it was inter alia contended that as far as the declaration making authority is concerned, the translated documents became original. Thus the documents were required to be supplied to the detenu so as to enable him to make representation against the same. In the submission of the learned Counsel for the petitioner, the translated documents were not supplied to the detenu and therefore his right to make representation against declaration under Section 9(5) of the Act is violated.
15. Since the amendment application was submitted at the time of arguments, we had requested the learned Counsel for respondents to keep the entire file present before the Court and make his submissions after perusing the file. Learned Counsel for the respondents has made a statement at the bar that all the translated documents which were sent to the declaration making authority have been supplied to the detenu also. He has shown the relevant part of the file to the Court as well as to the learned Counsel for the detenu. In view of this position, learned Counsel for the petitioner has not pressed this point. Therefore this point does not require any further consideration. We do not agree with the aforesaid submission. However, on facts of the case the question does not arise and therefore we do not propose to elaborately state our reasons and place on record our disagreement with the contrary view taken in other judgments.
16. Learned Counsel for the petitioner has submitted that the detenu has right to make representation against the declaration under Section 9(1) of the Act. He has further submitted that he has a right to be informed that he has a right to make represantation against declaration under Section 9(1) of the Act. In the submission of the learned Counsel for the petitioner, a duty is cast upon the detaining authority to inform the detenu that he has a right to make representation against the declaration. This point is also raised by way of amendment in the petition. In respect of this contention, learned Counsel for the petitioner has relied upon a Full Bench decision of this High Court in the case of Hitesh v. Union of India reported in 1988 (1) GLR 525, 756 and on a decision of the Supreme Court in the case of Satar Habib v. K. S. Dilip Sinhji .
17. In the case of Hitesh v. Union of India (supra) the question referred to the Full Bench centered round the interpretation of the decision of Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate, Aligarh . Answering the questions referred to the Full Bench, the Court in para 27 of the judgment has observed as follows (at page 548 of GLR):
We are, therefore, of the opinion that the Supreme Court has held that it is obligatory on the detaining authority to apprise the detenu of his right to make representation and right to be personally heard by the Advisory Board while serving the grounds of detention on him. The right to make representation is a constitutional right guaranteed under Article 22(5) and also a statutory right, and the right to be heard by the Advisory Board which is otherwise a statutory right is equated with the said right of representation. Violation of either of these two rights may result in infraction of Article 22(5) of the Constitution depending upon the facts of each case. The decisions of the Supreme Court referred to above make it clear that the right of representation guaranteed under Article 22(5) includes the right to make representation (1) to the detaining authority, (2) to appropriate Government, and (3) to the Advisory Board.
The aforesaid observation made by the Full Bench of this Court makes it abundantly clear that there was no question before the Full Bench as to whether the detenu has a right to be informed with regard to the declaration under Section 9(1) of the Act. Be it noted that the case before the Full Bench was with regard to the order of detention passed under Section 3(1) of the Act and not with regard to declaration under Section 9(1) of the Act, nor any such question as regards the right of being informed with regard to the declaration under Section 9(1) of the Act arose before it and the Full Bench has not decided this question. Therefore, reliance placed on the aforesaid judgment is of no help to the learned Counsel for the petitioner.
18. In the case of Satar Habib v. K.S. Dilip Sinhji (supra) in para 7 of the judgment the Supreme Court has observed as follows:
The Advisory Board will necessarily have to go behind the declaration under Section 9(1) to consider the question whether there is sufficient cause for continued detention. The two safeguards provided to the detenu against 'continued detention' at that stage are the application of mind by the specified authority before making declaration under Section 9(1) and the consideration of the question by the Advisory Board.
In the case before the Supreme Court the question arose, what opinion should be expressed by the Advisory Board in cases where the declaration under Section 9(1) of the Act is made by the declaration making authority? In short the question was whether the opinion of the Advisory Board should be different in cases where there is declaration under Section 9(1) of the Act and in cases where there is no such declaration. The Supreme Court has come to the conclusion that the opinion should be different because the effect of the declaration under Section 9(1) of the Act is to elongate the period of detention from one year to two years. While deciding the question before it, the Supreme Court made the aforesaid observation. Thus by necessary implication, the Supreme Court has held that the aforesaid two safeguards only are require to be observed. No other safeguard as regards right to be informed about the right to make representation against the declaration under Section 9(1) of the Act is spelt out by the Supreme Court. Had it been so, the Supreme Court would have certainly made observation to that effect. Therefore, by necessary implication it has got to be held that even the Supreme Court held that there is no such right to be informed regarding right to make representation against the declaration under Section 9(1) of the Act as contended by the learned Counsel for the petitioner-detenu.
19. In the case of Haji Noormmomad Jusab Mithani v. Union of India reported in 1986 GLH 903, this High Court has held that the detenu has a right to make representation against the declaration under Section 9(1) and this representation can be made to the authority making declaration. This appears to have been so held in view of the provisions of the General Clauses Act, because the authority making declaration has the power to cancel the same. However, even in this judgment this Court has not gone to the extent of saying that the detenu has a right to be informed about his right to make representation against the declaration under Section 9(1) of the Act.
20. In the case of Bhavna C. Acharya v. Union of India reported in [1987 (2)] 28(2) GLR 685 the Full Bench of this High Court has considered the nature and effect of declaration under Section 9(1) of the Act and the question as to then the declaration under Section 9(1) is held to be illegal and void and what will be the effect thereof on the order of detention passed under Section 3(1) of the Act. In para 15 of the judgment it is observed as follows (at page 699 of GLR):
The power to detain a person is found under Section 3 only. Order under Section 3 is an independent and substantive executive order while the declaration under Section 9 is not a substantive or independent order. Section 9 declaration, in our opinion, cannot even be an enforceable order. The order under Section 3(1) operates since the declaration under Section 9(1) is only a continuation of that order and as such any order passed for the continued detention under Section 3(1). To close our eyes to this inevitable situation will result in doing violence to the statutory provision under Section 3(1) of the COFEPOSA Act.
After considering the decisions of the Supreme Court and after elaborate discussion regarding the scheme of the Act and other judgments of Supreme Court, in para 18 it is further observed as follows (at page 701 of GLR):
It is, therefore, obvious that under Section 8(b) read with Section 8(f) when the Advisory Board has to report on the sufficiency of the cause for detention of a person directed to be detained as per the order under Section 3(1) of the Act, the Advisory Board had to opine whether there was sufficient cause (a) for detaining that person at the time of the order and (b) whether there is sufficient cause for detaining such person at the time of the report of the Advisory Board. These two obligations are already covered by the phrase 'sufficient cause for detention of the person' as employed by the Legislature in Section 8(f) of the Act in its unmodified form.
Thereafter the Full Bench has considered the effect of the declaration under Section 9(1) in case where such declaration is made. The Full Bench has observed that (at page 702 of GLR):
It must be held that the opinion of the Advisory Board about the continued detention would include opinion about the sufficiency of cause for : (i) detention of the detenu on the date of the detention; (ii) detention of the detenu on the date of the report; and (iii) extended detention of the detenu for a period of more than one year and upto the maximum period of two years.
21. The aforesaid position has been made abundantly clear by the Supreme Court in the case of Satar Habib (supra). In para 7 of the judgment the Supreme Court has observed as follows:
As we see the scheme of Sections 3, 8, 9 and 10 appears to be that while generally the period for which a person may be preventively detained under the COFEPOSA in connection with smuggling activities, may not exceed a period of one year, in case of certain kinds of activities of smuggling into, out of or through 'any area highly vulnerable to smuggling', the period may extend up to two years. In the latter event a declaration is required to be made within five weeks of the detention of such person in the manner provided by Section 9(1) of the Act. That is not enough. In a case to which Section 9 applies. Section 8 stands suitably amended, a reference is required to be made within four months and two weeks by the Government to the Advisory Board and the Advisory Board is required to state its opinion within five months and three weeks from the order of detention whether there is sufficient cause for the 'continued detention' of the person concerned. In other words, the Advisory Board is to state its opinion not merely whether the detention is necessary, but whether continued detention is necessary.
22. The aforesaid discussion makes it abundantly clear that the order of detention is one and the same, in both the cases where the declaration under Section 9(1) of the Act is made and in cases where such declaration is not made. In cases where declaration under Section 9(1) of the Act is not made the period of order of detention under Section 3(1) of the Act would be one year. In cases where declaration is made, period of the order of detention would be two years. Therefore when one person is informed about his right to make representation against his detention which is pursuant to the order under Section 3(1) he is informed that he can make representation against both i.e. against the continued detention as well as the detention which may be for a period of one year. When a person is informed that he has a right to make representation against his detention pursuant to the order under Section 3(1) by necessary implication it has got to be inferred that he has been informed about his right to make representation against detention as well as against continued detention.
This question may also be examined by specifically referring to provisions of Article 22(5) of the Constitution, which reads as under:
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.
The Full Bench of this High Court in the case of Hitesh (supra) elucidated the principles laid down by the Supreme Court in the case of Wasi Uddin Ahmed (supra). In para 27 of the judgment it is inter alia observed that "the right to make representation is a constitutional right guaranteed under Article 22(5) and also a statutory right and the right to be heard by the Advisory Board which is otherwise a statutory right is equated with the said right of representation". The aforesaid observation of the Full Bench may be put in juxta-position with the provisions of Article 22(5). Article 22(5) obligates the authority of making order, to afford an earliest opportunity of making representation against the order. Such opportunity is to be affected to any person detained in pursuance of an order made under any law providing for preventive detention. Here reference may again be made to the findings of Full Bench of this High Court in the case of Bhavna C. Acharya (supra) wherein it is observed that the power to detain a person is only under Section 3 of the Act. Order under Section 3 is an independent and substantive executive order while declaration under Section 9 is not a substantive or independent order. It is not even an enforceable order as held by the Full Bench of this High Court. What operates in the field is the order under Section 3(1) of the Act, which as observed hereinabove is the same in both the types of cases where declaration under Section 9(1) is made and in case where no such declaration is made. Therefore the constitutional obligation would be fulfilled when a person preventively detained is informed about the order under Section 3(1) of the Act. There is nothing in the decisions of the Supreme Court in the case of Wasi Uddin Ahmed (supra) and in the case of Satar Habib (supra) and also in the decisions rendered by two different Full Bench of this High Court referred to hereinabove to indicate that the detenu has a right to be informed separately and specifically as regards declaration under Section 9(1) of the Act.
23. In above view of the matter, once the detenu has been informed about his right to make representation against the detention which is pursuant to the order under Section 3(1) of the Act only, in either of the cases of the detention, with or without declaration under Section 9(1) of the Act, the constitutional requirement contained in the provisions of Article 22(5) of the Constitution stands complied with. Therefore, the argument that requirement to be informed separately and specifically about the detenu's right to make representation against the declaration under Section 9(1) of the Act flows from the constitutional provisions of Article 22(5) and therefore the detenu is required to be informed separately and specifically about the same has no merits and the same has got to be rejected.
Assuming for a moment that the detenu is required to be informed separately or specifically about his right to make representation against declaration under Section 9(1) of the Act (which in our opinion is not necessary) even so as held by the Full Bench of this High Court in the case of Hilesh v. Union of India (supra) non-mention about such right in the grounds of detention or failure to inform such right later on on would not "ipso facto" make the continued detention illegal or void.
24. In the instant case, as a matter of fact, the petitioner-detenu has been informed about his right to make representation even against the continued detention as per letter dated July 15, 1988. The petitioner-detenu, in fact, appeared before the Advisory Board on July 21, 1988. We requested the learned Counsel for the respondent to go through the file and tell us the factual position. After referring to the file, the factual position which emerges is as follows:
(i) The petitioner, as a matter of fact, has not made any written representation against his detention to the Advisory Board. But he did remain present before the Advisory Board.
(ii) The detenu was asked by the Advisory Board as to whether he would like to have assistance of any friend. He stated that he did not want assistance of any friend. He has also stated that since he is the brother of Haji Haji Ismail, (who as stated in the grounds of detention is a known smuggler), he has been falsely involved.
(iii) The petitioner-detenu stated before the Advisory Board that he would represent his case himself and that he had received the order of detention together with the grounds of detention and that he had received the declaration under Section 9(1) of the Act along with other documents.
(iv) The detenu did not make any grievance that since he was informed late by letter dated July 15, 1988, he was handicapped in making representation before the Advisory Board.
25. In above view of the matter, it is abundantly clear that even if it is assumed for a moment that the detenu has a right to be informed about representation to be made against the declaration under Section 9(1) of the Act, on account of the non-mention of such right in the grounds of detention he has not been prejudiced at all. Therefore, both on the point of law as well as on facts the contention that because he was not informed about his right to make representation against declaration under Section 9(1) of the Act, the declaration is illegal and void or that his 'continued detention' is illegal and void cannot be accepted.
26. Learned Counsel for the petitioner had raised the following contentions also:
1. Provisions of Sections 8 and 9 of the Act have not been complied with inasmuch as the Advisory Board did not observe the time schedule as provided therein.
2. There was considerable delay in passing the order of detention. The incident took place on December 26, 1986 while the order has been passed on February 17, 1987 and on account of this delay the order stands vitiated.
3. The detenu is an illiterate person and he knew Gujarati language only and the grounds were not explained in Gujarati. Therefore his right to be communicated about the grounds of detention has been violated.
4. The detenu was not informed that he can be presented by a friend before the Advisory Board.
5. The family member of the detenu were not informed about his detention and therefore his continued detention is illegal and void.
6. The application dated January 1, 1987 submitted by the wife of Umar Musa Bhayat was not brought to the notice of the detaining, authority and the satisfaction of the detaining authority is vitiated.
All the aforesaid contentions though raised initially have not been pressed by the learned Counsel for the petitioner. Therefore none of the aforesaid contentions is required to be dealt with.
27. It may also be noted that in the amendment application vires of Section 9(1) of the Act has been challenged. But the learned Counsel for the petitioner has fairly conceded that he does not press the challenge to vires of Section 9(1) of the Act. Therefore this contention, though raised by way of amendment, is not required to be considered.
No other contention is raised. There is no substance in the petition. Hence rejected. Rule discharged.