MALAVLYA, J.

1. Urjin Lama and Tamring Chhong Sherpa have filed these two petitions challenging their detention in pursuance of the order dated 24th January, 1989 passed against them by the State of Uttar Pradesh under Section 3 (1) of the Conservation of Foreign Exchange and revention of Smuggling Activities Act, 1974, hereafter referred to as cofeposa. Since both these petitions are being allowed on a common ground taken in the petition, they are being dispos ed of by a common judgment. We also make it clear that since these petitions are being allowed on one point, we are not considering the other points, which were raised in these petitions.

2. The allegation against the petitioners as per grounds furnished to them was that on 5-12-1988 at about 8. 30 p. m. the Custom Authorities, Gorakhpur signalled Bus No. UAA 9279 going from Soanauli to Delhi near PWD Cottage, Maniraot. After the bus had stopped three Nepali passeugers who appeared to be suspicious were searched in presence of the witnesses, but no objectionable material was found on their person. However, when their boots were taken out, it was found that the boots appeared to be much heavier than the normal boots, when those persons were asked the reason for those boots being unduly heavy, two of the three persons divulged the fact that after getting the cavity made in the sales of the boots, pieces and regular foreign made gold biscuits had been put in those boots. When their names were enquired, they divulged their names as Urjin Lama and Tamring Chhong Sherpa, the two petitioners and one Samte Tamang. After the soles of the boots were removed, from their cacity 35 foreign made gold biscuits and their pieces wrapped in a black tape were recover ed from the boots of Urjin Lame, 3 foreign made gold biscuits wrapped in black tape were recovered from the boots of Tamring Chhong Sherpa and on opening the in side of the sole of Samte Tamang, servant of Urjin Lama, 11 foreign made gold biscuits wrapped in tape were found from his boots. The three persons were brought to Gorakhpur Customs Officer where a Gold smith was called who after weighing the gold and examining their purity found the gold to be of 24 Carrot purity. The weight and value of the recovered gold from three persons was assessed 829. Grams of Rs. 2,48,730/-, 874 grams of Rs. 2,62,260/-and 886 Grams of Rs. 2,65,830/-, totalling 7,76,820. When the Customs Authori ties demanded certificate or permission for importing the said gold in the country, none of these three persons could produce any such paper. Being certain that the foreign made gold biscuits had been illegally imported in India from Nepal and after making recovery memo in accordance with law, the Custom Authorities confiscated the gold under Section 110 of the Customs Act. On 6-12-15-1988, the petitioners admitted before the Customs Authorities the recovery of the said gold and admitted that the petitioners alongwith servant Samte Tamang had started from Kathmandu on 5-12-1988 in the morning and had arrived at about 4pm. at Sonauli. After stopping at Sonauli for some time, they and boarded the bus from there to Delhi. They also divulged that these persons had gone to the house of Pema Maaang in the night of 4th December, 1989 in Kathmandu when Pema Manang after opening the cavity of the soles of the boots had put the gold biscuits and their pieces therein wrapped in black tape and had then remended the soles. Pema Manang had told them that 220 Tolas had been put in their boots, which they had to take to Delhi. He had also told them that in case the gold was safely delivered at Delhi, they would be paid Rs. 4000 each. Urjin Lama had also stated that as Samte Tamang was his servant, therefore, Rs. 4000 meant to be paid to Temgte Tamang would also have been received, by him. Urjin Lama also said that Pema Manang had told him that he would meet them in Delhi on 6-12-1988 in Tibbat Camp situate in Budh Vihar where he would have taken the delivery of the gold. The said statement of Urjin Lama was supported by the statement of Tamring Chhong Sherpa and Samte Tamang. How ever, Samte Tamang had stated that he was not aware of the fact that gold had been concealed in his boots. Since Urjin Lama was taking him to Delhi and had given him the boots to wear, he was accompanying Urjin Laoua. The Governmeat also considered that as the period of remand was going to expire, whereafter it was Iikely that these persons would be released from Jail where they were lodged after arrest in the custom case and being satisfied that the petitioners were persons who were engaged in transporting and concealing goods, with a view to prevent the petitioners to indulge in similar activities again, the deten tion orders were passed against them with the direction that they would be detained in Central Jail, Varanasi during the period of that detention.

3. On the notice being issued to the opposite parties counter-affidavits in these cases have been filed by Dr. R. S. Asthana, Joint Secretary. Home (Confidential Department) U. P. Shasan, Lucknow, on behalf of the State of Uttar Pradesh as also by the Union of India. Thereafter the petitioners have filed their rejoinder affidavits. Whereafter these matters have teen heard by us. It may be noted that in between supplementary affidavits and second rejoinder-affidavits have also been filed in these cases.

4. The learned counsel for the petitioners pressed all the petitioners raised by him in the petitions but as we are going to accept the comention of the petitioners trial the grounds supplied to them were in a language not known 10 them, we are not considering the other points raised in these petitions.

5. Taking the case of Urjin Lama, paragraph 17 of the petition stated that the petitioner did not know Hindi, the petitioner could speak Nepali only and vas illiterate and since the grounds furnished to him were in Hindi, his detention was illegal. On the basis of this assertation, learned counsel for the petitioner has urged that the petitioner was deprived of his right of making an effective, representation. In the counter-affidavit filed by Dr. R. S. Asthana, the assertion made in paragraph 17 of the writ petition has been met by stating that the official language of the State Government was Hindi and functioas of the Gov ernment were dischrarged in that language alone, it was also said that the order and grounds of detention were explained to the detenu when they were furnished to the petitioner as the petitioner had put his thumb-impressions the office copy of the grounds. It was contended that the petitioner was wrong in saying that tie was acquainted with Hindi language. As mentioned in the counter-affidavit, the record bearing thumb-impressions of the petitioner was produced with the office copy of the State Goverments record, which also had the endorsement of the Jail authorities that the grounds had been read ever to the petitioner.

6. It is thus clear that the State Government has not specifically contro verted the assertion of the petitioner that he did not know Hindi language. Shri Prem Prakash, learned Additional Government Advocate said that since the grounds had been read over to the petitioner, hence it should be presumed that he understood the same. This contention is not acceptable. If the petitioner did not know Hindi then to enable to him to make an effective representation, the only course left open was to have Nepali translation of grounds furnished to him. That has admittedly not been done in these cases. Shri prem Prakesh, learned Additional Government Advocate contended that the did get the representation made which automatically Should mean the under stood the allegations against him, as otherwise he could need made any such representation. Even this contention of the learned cc for the State is not acceptable. The petitioner has annexed the copy of resentation, which he made to the Government against his detention order, that representa tion is in English. As a matter of fact, the writ petition appears to be verbatum reproduction of the representation, which had been made by the petitioner to the Government. The learned counsel for the petitioner Shri Mahendra Pratap during the course of arguments made it clear that he had made the representa tion on behalf of the petitioner and whatever had been said in the representation had been repeated in the writ petition. A perusal of the affidavit in support of the writ petition reveals the fact that the affidavit was sworn by the petitioner himself on being identified by Shri Mahendra Pratap Advocate. In the absence of any official Nepali translation of the grounds, the petitioner might have com municated whatever he could, to his counsel. It still leaves the scope to argue that had the petitioner been supplied all the statements etc. in a language known to him, he could have got his case represented in a better mariner. Thus non-supply of the grounds to the petitioner in the language known to him appears have affected his constitutional right to make an effective representation against the order of detention.

7. The learned counsel for the petitioner has rightly relied upon the cases of the Supreme Court reported in Harkisan v. State of Maharashtra and others, AIR 1962 SC 911 [LQ/SC/1962/42] ; Hadibandhan Dass v. District Magistrate, Cuttack and others, AIR ib69 SC 48 ; Smt. Raaia Umar Baksh v. Union of India and others, AIR 1980 SC 1751 [LQ/SC/1980/270] and Kallubhai Jogibhai Patel v. Union of India and others, AIR 11 SC 728. The First two cases are constitution Bench judgments of the Supreme Court. A perusal of other two cases shows that the petitioner in those cases had also made representation but this fact had not improved the situation so far as detention order was concerned, inasmuch as, the Supreme Court found that non- communication of the grounds to the detenu in the langu age known to him had vitiated his continued detention in as much as it had deprived him of his valuable right to make an effective representation. It will be useful to quote paragraph 20 of the judgment of Kallubhai Jogibhais case (supra), which reads as under : "it is an admitted position that the detenu does not know English. The grounds of detention which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujrati to the detenu. But, that is not a sufficient compliance with the mandate of Art. 22 (5) of the Constitution, which requires that the grounds of detention must be communication to the detenu. communicate is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ground to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, is a language which he understands then that purpose is not served, and the constitutional, mandate in Art. 22 (5) is infringed. If a authority is needed on "this point, which is so obvious from Art/22 (5), reference may be made to tie decision of this Court in Hart Kisan v, State, of Mahcirasfura, AIR 1962 SC 911 [LQ/SC/1962/42] . "

8. It is thus clear that the continued detention of the petitioner, on account of the grounds not being supplied to him in the language known to him,-has been rendered illegal and bad in the eyes of law.

9. The only difference pointed out by Shri Prem Prakash in the case of Tamring Chhong Sherpa was that he had signed on the duplicate copy of the grounds in the token of his haying received grounds and the grounds being ex plained to him. The learned, counsel for the petitioner rightly pointed out that Nepali is also written in Devnagri Script. Rest of the assertions in their represen tation, the petition and the counter-affidavit being the same, merely because Tamring Chhong Sherpa could make his sigaature in Dev Nagri it cannot lead to presumption that he knew Hindi. Consequently, his petition is also liable to succeed on the same point.

10. The result is that these petitions are allowed. The continued deten tion of the petitioner Urjin Lama and Tamring Chhong Sherpa in pursuance of the detention order passed on 24th January, 1989 under COFEPOSA is bad. These petitioners shall be set at liberty forthwith unless wanted in any other case. Petitions allowed. .