judgement:
N: Criminal Appeal No. 400 of 1986 From the Judgment and order dated 12.2.1986 of the Punjab and Haryana High Court in Crl.
No. 202 M/86.
Dr. Y.S. Chitale, Ravinder Narain, D.N. Misra and P.K. Ram for the Appellants.
H.K. Puri and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave directed against the judgment and order of the Punjab & Haryana High Court dated February 12, 1986 raises a question of some importance.
The question is whether the Food Inspector, Faridkot was competent to lodge a complaint against the appellants under section 20(1) of the Act for commission of an offence punishable under section 16(1) (a) (ii) of the (for short 'the Act ') by virtue of the delegation of powers by the Food (Health) Authority, Punjab under notification dated September 7, 1972 purported to have been issued by him under r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958.
965 Put very shortly, the essential facts are these.
Appellant No. 2, Messrs Food Specialities Limited is a company incorporated under the engaged in the business of manufacturing and selling various well known articles of food including New Maggi 2 minute noodles with sweet sour taste maker while appellant No. 1 A.K. Roy is the Manager, Quality Controller of the Company.
On December 14, 1984 at about 3.30 p.m. the Food Inspector, Faridkot purchased a sample of New Maggi Noodles from the shop of a general merchant for purposes of analysis The Public Analyst by his report dated January 17, 1985 opined that the said article of food contains carmosine and sunset yellow acid coal tar dye instead of caramel as described on the label and was therefore both adulterated as well as misbranded.
He further opined that the label of the article of food did not comply with the requirements of rr.
24 and 32 of the Prevention of Food Adulteration Rules, 1955 regarding the addition of extraneous colouring matter.
On February 1, 1985 the Food Inspector, Faridkot filed a complaint against the general merchant as well as the appellants for having committed an offence punishable under section 16(1) (a) (ii) of the Act for alleged violation of rr. 24, 28, 29 and 32 of the Prevention of Food Adulteration Rules, 1955 by virtue of the delegation of powers by the Food (Health) Authority under notification dated October 10, 1968 purported to have been issued by him under r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958.
During the course of the proceedings, the appellants raised an objection inter alia that r. 3 of the Rules framed by the State Government in purported exercise of powers under section 24(2) read with section 20(1) of the Act, was ultra vires the State Government and alternatively by virtue of the authority derived under r. 3 of the said Rules, the Food (Health) Authority alone had the power to initiate prosecutions for an offence under the Act and therefore he could not legally by the impugned notification sub delegate his powers to launch the prosecutions to the Food Inspector.
The learned Sub Divisional Judicial Magistrate by his order dated December 4, 1985 rejected the preliminary objection raised as to the power of the Food Inspector to launch the prosecution under section 20(1) read with section 9 of the Act, on the ground that the State Government having delegated its powers to the Food (Health) Authority by framing r.3 under section 24(2)(e) of the Act, the Food (Health) Authority was competent to issue the impugned notification and therefore the complaint was validly lodged.
The learned Sub Divisional Judicial Magistrate further proceeded to frame charges against the appellants for having committed an offence punishable 966 under section 16(1) (a) (ii) of the Act.
Thereafter, the appellants moved the High Court by petition under section 482 of the Code of Criminal Procedure, 1973 for quashing the impugned order passed by the learned Sub Divisional Judicial Magistrate taking cognizance of the offence and the consequent framing of the charge by him.
High Court did not go into the question and dismissed the petition in limine, It is argued on behalf of the appellants that as a matter of construction the first part of section 20(1) of the Act makes it clear that a prosecution for offences under the Act not being an offence under section 14 or section 14A, can be instituted only by one of the following authorities, namely: (i) the Central Government or the State Government, or (ii) with the written consent of the Central Government or the State Government, or (iii) a person authorised in this behalf by a general or special order by the Central Government or the State Government, or (iv) with the written consent of a person so authorised.
It is urged that the opening words of section 20(1) 'No prosecution for an offence under this Act . shall be instituted except by ' being of a negative character, the requirements of the section are imperative and that a discretionary power must, in general, by exercised by the authority to which it has been committed.
Emphasis is placed on the words 'in this behalf ' in the second part of section 20(1) of the Act for the submission that the delegation of powers to launch a prosecution by the Central Government or the State Government, by general or special order, must be for a specific purpose in that behalf viz. to authorise the institution of prosecutions under the Act.
It was accordingly submitted that r. 3 of the Punjab Rules enables the Food (Health) Authority to sub delegate his power 'to authorise the launching of a prosecution for an offence under the Act ' to the Food Inspector, was ultra vires the State Government and could not be sustained on the terms of section 24(2) (e) i.e. the general power of the State Government under section 24(2) (e) of delegation of its powers and functions under the Act.
In reply, the learned counsel for the respondents contends that r.3 is in the nature of a general order in terms of section 20(1) of the Act and therefore the State Government has not only delegated its powers 'to launch a prosecution for an offence under the Act ' under section 20(1) to the Food (Health) Authority i.e. the Director of Health Services, Punjab but also under the said rule provision has been made for further sub delegation of his power to authorise the launching of prosecutions under s .
20(1) to the Food Inspectors.
In order to appreciate the contentions it is necessary to refer to 967 the relevant provisions.
Sub section
(1) of section 20 of the Act which is material for our purposes, provides as follows: "20(1).
Cognizance and trial of offences No prosecution for an offence under this Act, not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government.
" Sub section
(1) of section 24 of the Act empowers the State Government to frame rules after consultation with the Committee and subject to the condition of previous publication, for the purpose of giving effect to the provisions of the Act not falling within the purview of section 23.
Sub section
(2) thereof provides that in particular and without prejudice to the generality of the foregoing power, the State Government may make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of section 23.
section 24(2) (e) of the Act provides: "24(2).
In particular, and without prejudice to the generality of the foregoing power, such rules may (e) provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate authorities or to local authorities.
" In exercise of the powers under section 24(2) (e) of the Act, the Punjab Government framed the Prevention of Food Adulteration (Punjab) Rules, 1958.
R. 3 of the Rules reads as under: "Rule 3 Power of Food (Health) Authority The State Government may, by an order in writing delegate its powers to appoint Food Inspectors, to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable by it under the Act as may be specified in the order of the Food (Health) Authority of the State of Punjab" In accordance with r. 3, the State Government issued a notification dated October 10, 1968 purporting to delegate its powers and functions conferred by section 20(1) of the Act viz. to initiate prosecutions 968 for an offence under the Act, to the Food (Health) Authority, to the effect: "In pursuance of the provisions of rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958, the President of India is pleased to delegate to the Food (Health) Authority its powers of appointment of Food Inspectors and to authorise institution of prosecution for an offence under the .
" In terms of the aforesaid notification, the Food (Health) Authority issued a notification dated September 7, 1972 authorising the Food Inspector, Faridkot to launch prosecution under section 20(1) for an offence under the Act, in these terms: "No. IV I Pb 72/7518 2(i) In exercise of the powers conferred by Section 9 of the (Act No. 37 of 1954) read with Rule 8 of the Prevention of Food Adulteration Rules 1955 and the powers delegated vide Punjab Government Notification No. 5575 HB/L 68/29659 dated 10th October, 1968, Shri Jagrup Singh is hereby appointed as Government Food Inspector for all the local areas in the District, in which the official is posted as Government Food Inspector.
In exercise of powers conferred by Section 20 of the (Act No. 37 of 1954) read with Punjab Government Notification No.5575 2HBI 1/68/29659 dated 10th October, 1968 the Director, Health Services, Punjab also authorises the above mentioned Food Inspector to institute prosecution against the persons committing offences under the said Act within the limits of local areas.
" In this appeal, two main questions arise, namely: (i) Whether r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 framed under section 24(2) (e) of the Act being contrary to the legislative mandate contained in section 20(1) of the Act, was ultra vires the State Government and therefore the impugned notification issued by the State Government dated October 10, 1968 purporting to delegate its powers under section 20(1) to the Food (Health) Authority viz. to authorise the institution 969 of prosecutions for an offence under the Act, was liable to be struck down.
Consequently, whether the impugned notification dated September 7, 1972 issued by the Food (Health) Authority authorising the Food Inspector, Faridkot to institute such prosecutions was illegal, bad in law and void ab initio.
(ii) Even if r. 3 of the said Rules could be regarded as a general order issued by the State Government in terms r of section 20(1) of the Act authorising the Food (Health) Authority to launch prosecutions for an offence under the Act by the framing of a rule under section 24(2) (e) of the Act, whether the Food (Health) Authority by the impugned notification dated September 7, 1972 could, in his turn, sub delegate his powers to the Food Inspector, Faridkot.
The ultimate question is whether the terms of section 20(1) of the Act do not postulate further delegation by the person authorised to institute prosecutions for an offence under the Act; he can only give his written consent to such prosecution.
It is common ground that the prosecution in the instant case has not been launched either by or with the written consent of the Central Government or the State Government.
It therefore becomes necessary to ascertain whether the Food Inspector, Faridkot was duly authorised to launch a prosecution.
The Food Inspector had been conferred powers of the State Government under section 20(l) of the Act viz. to initiate prosecutions for an offence under the Act, by the Food (Health) Authority i.e. the Director of Health Services.
A mere perusal of the impugned notification dated September 7,1972 makes it manifest that it was the Director of Health Services and not the State Government who had authorised the Food Inspector to launch prosecutions for an offence under the Act.
It is therefore clear that the Food Inspector is not a person who has been authorised by any general or special order issued by the Central Government or the State Government.
There would be no problem if the State Government were to issue a notification under section 20(l) of the Act conferring authority on the Food Inspector, Faridkot under section 20(l) to launch prosecutions for an offence under the Act as is the practice in the other States.
A careful analysis of the language of section 20(l) of the Act clearly shows that it inhibits institution of prosecutions for an offence under the Act except on fulfillment of one or the other or the two conditions.
Either the prosecutions must be instituted by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government, or the prosecutions 970 should be instituted with the written consent of any of the four specified categories of authorities or persons.
If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act.
The provision contained in section 20(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated.
The terms of section 20 (1) do not envisage further delegation of powers by the person authorised, except that such prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised.
The use of the negative words in section 20(1) "No prosecution for an offence under this Act . shall be instituted except by or with the written consent of" plainly make the requirements of the section imperative.
That conclusion of ours must necessarily follow from the well known rule of construction of inference to be drawn from the negative language used in a statute stated by Craies on Statute Law, 6th edn., p. 263 in his own terse language: "If the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding.
" Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
Other modes of performance are necessarily forbidden.
The intention of the Legislature in enacting section 20(1) was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise.
The first part of section 20(1) of the Act lays down the manner of launching prosecutions for an offence under the Act, not being an offence under section 14 or section 14A. The second part provides for delegation of powers by the Central Government or the State Government.
It enables that prosecutions for an offence under the Act can also be instituted with the written consent of the Central Government or the State Government or by a person authorised in that behalf, by a general or special order issued by the Central Government or the State 3 Government.
The use of the words 'in this behalf ' in section 20(1) of the Act shows that the delegation of such power by the Central Government or 971 the State Government by general or special order must be for a specific purpose, to authorise a designated person to institute such prosecutions on their behalf.
The terms of section 20( 1) of the Act do not postulate further delegation by the person so authorised; he can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in the public interest.
In the case of statutory powers the important question is whether on a true construction of the Act, it is intended that a power conferred upon A may be exercised on A 's authority by B. The maxim delegatus non potest delegare merely indicates that this is not normally allowable but the Legislature can always provide for sub delegation of powers.
The provision contained in sections 24(2) (e) enables the State Government to frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any sub delegation.
That apart, a rule framed under section 24(2) (e) can only provide for delegation of minor administrative functions e.g. appointment of Food Inspectors, Food (Health) Authority etc.
In the case of important executive functions like the one contained in section 20(1) of the Act to authorise launching of prosecutions for an offence under the Act which is in the nature of a safeguard, the Courts may be disposed to construe general powers of delegation restrictively.
Keeping in view the language of section 20(1) and 24(2) (e) of the Act, r. 3 of the Punjab Rules can be treated to be a general order issued by the State Government to authorise the Food (Health) Authority i.e. the Director of Health Services to institute prosecutions for an offence under the Act.
Unfortunately, the draftsmen of r. 3 more or less employed the language of section 20(1) of the Act.
If r. 3 were to be literally interpreted, the words "to authorise the launching of prosecutions" may lead to the consequence that the Food (Health) Authority who had been delegated the power of the State Government under section 20(1) of the Act could, in his turn, sub delegate his powers to the Food Inspector.
Such a consequence is not envisaged by section 20(1) of the Act.
It is well settled that rules framed pursuant to a power conferred by a statute cannot proceed or go against the specific provisions of the statute.
It must therefore follow as a logical consequence that r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must be read subject to the provisions contained in section 20(1) of the and cannot be construed to authorise sub delegation of powers by the Food (Health) Authority, Punjab to the Food Inspector, Faridkot.
If so construed, as it must, it would mean that the Food (Health) Authority was the 972 person authorised by the State Government to initiate prosecutions.
It was also permissible for the Food (Health) Authority being the person authorised under section 20(1) of the Act to give his written consent for the institution of such prosecutions by the Food Inspector, Faridkot as laid down by this Court in State of Bombay vs Parshottam Kanaiyalal, ; and The Corporation of Calcutta vs Md. Omer Ali & Anr., In the premises, the impugned notification dated September 7, 1972 issued by the Food (Health) Authority must be declared as ultra vires the Food (Health) Authority insofar as the purported to delegate his powers to institute prosecutions for an offence under the Act under section 20(1) to the Food Inspector, Faridkot.
It must accordingly follow that the Food Inspector, Faridkot was not competent to lodge the complaint against the appellants for having committed an offence punishable under section 16(1) (a) (ii) read with section 9 of the .
In the result, the appeal must succeed and is allowed.
The judgment and order passed by the High Court and that of the Sub Divisional Judicial Magistrate, Moga are set aside.
P.S.S. Appeal allowed.

summary:
Section 20(1) of the dealing with cognizance and trial of offences provides that no prosecution for an offence under that Act shall be instituted except by, or with the written consent o ' he Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central or State Government.
Section 24(1) empowers the State Government to frame rules for the purpose of giving effect to the provisions of the Act, while section 24(2) (e) states that such rules may provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate or local authorities.
Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 framed by the State Government empowered the State Government to delegate its powers to appoint Food Inspectors, to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable by it under the Act as may be specified m the order of the Food (Health) Authority of the State.
962 In pursuance of the provisions of r. 3 of the Rules the State Government issued a Notification dated October 10, 1968 purporting to delegate its powers and functions conferred by section 20(1) of the Act to institute prosecutions for an offence under the Act, to the Food (Health) Authority.
In terms of that Notification the Food (Health) Authority issued a Notification dated September 7, 1972 authorising the Food Inspector, Faridkot to launch prosecutions under section 20(1) for an offence under the Act.
On February 1, 1985 the Food Inspector, Faridkot filed a complaint against the appellants for having committed an offence punishable under section 16(1) (a) (ii) of the Act for alleged violation of rr. 24, 28, 29 and 32 of the Prevention of Food Adulteration Rules, 1955.
During the course of the proceedings, the appellants raised an objection that r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 framed under section 24(2) (e) read with section 20(1) of the Act was ultra vires the State Government.
Alternatively it was urged that by virtue of the authority derived under r.3 the Food (Health) Authority alone had the power to institute prosecution for an offence under the Act and, therefore, he could not sub delegate his powers to launch the prosecution to the Food Inspector by the Notification dated September 7, 1972.
This preliminary objection was rejected by the Magistrate and he proceeded to frame charges against the appellants.
They thereupon moved the High Court under section 482 of the Code of Criminal Procedure, 1973 for quashing of the aforesaid order taking cognizance of the offence and consequent framing of the charge, but the High Court dismissed the petition in limine.
On the question whether the Food Inspector, Faridkot was competent to lodge a complaint against the appellants under section 20(1) of the Act by virtue of the delegation of powers by the Food (Health) Authority, Punjab under the Notification dated September 7, 1972 issued by him under r. 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958.
Allowing the appeal by special leave, the Court, ^ HELD 1.
The notification dated September 7, 1972 issued by the Food (Health) Authority is ultra vires the Food (Health) Authority insofar as he purported to delegate his powers to institute prosecutions for an offence under the Act under section 20(1) to the Food Inspector, 963 Faridkot.
The latter was, therefore, not competent to lodge the complaint against the appellants.
[972B C] 2.1 Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.
Other modes of performance are necessarily forbidden.
The intention of the Legislature in enacting section 20(1) was to confer power on the authority specified therein, which power had to be exercised in the manner provided and not otherwise.
[970E F] 2.2 The use of the negative words in section 20(1) that 'no prosecution for an offence under this Act.
shall be instituted except by, or with the written consent of plainly make the requirements of the section imperative.
They inhibit insufficient of prosecutions for an offence under the Act except where it is done by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government, or where the prosecution is instituted with the written consent of any of the four specified categories of authorities or persons.
If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act.
[970C; 969G H; 970A B] Craies on Statute Law, 6th edn., p. 263 referred to.
The use of the expression 'in this behalf ' in section 20(1) shows that the delegation of such power by the Central Government or the State Government by general or special order must be for a specific purpose, to authorise a designated person to institute such prosecutions on their behalf.
The terms of the section do not postulate further delegation of powers by the person authorised.
He can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in public interest.
[966E; 971A B] 4.1.
Rules framed pursuant to a power conferred by a statute cannot proceed or go against the specific provisions of the statute.
The maxim delegatus non potest delegare merely indicates that sub delegation of powers is not normally allowable but the Legislature can always provide for it.
The provision contained in section 24(2) (e) of the Act enables the State Government to frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any sub delegation.
[971C,D] 964 4.2.
Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must, therefore, he read subject to the provisions contained in section 20(l) of the .
It cannot be construed to authorise sub delegation of powers by the Food (Health) Authority, Punjab to the Food Inspector.
So construed, it means that in the instant case, the Food (Health) Authority was the person authorised by the State Government to initiate prosecutions.
[971G H; 972A] 4.3 It was open to the State Government to have issued a notification under section 20(1) conferring authority on the Food Inspector to launch prosecutions for an offence under the Act, as is the practice in other States.
The Food Inspector having been authorised by the Director of Health Service and not the State Government, he was not a person who had been authorised by any general or special order issued by the Central Government or the State Governments.
[969G H] State of Bombay vs Parshottam Kanaiyalal, ; & The Corporation of Calcutta vs Md. Omer Ali & Anr., referred to.


judgement:
N: Criminal Appeal No. 516 of 1986 From the Judgment and Order dated 13.6.1986 of the Bombay High Court in Crl.
A.No.90 of 1983.
M.C. Bhandare and Miss C.K. Sucharita for the Appellants.
A.S. Bhasme and A.M. Khamwilka for the Respondent.
The Judgment of the Court was delivered by THAKKAR, J.
'Right ', or 'wrong ', 'guilty ' or 'not guilty ', is not the question.
Whether the learned Single Judge had the 'right ' to hear and decide the appeal and hold that the appellants were guility whilst setting aside their acquittal by the Judgment under appeal 1 is the question which has surfaced in the context of a judgment rendered by a learned Single Judge which according to the relevant rules of the High Court was required to be heard and decided by a Division Bench.
The State of Maharashtra (respondent herein) preferred an appeal to the High Court of Bombay in order to challenge the order of acquittal rendered by the lower Court in favour of the present appellants.
The acquittal was in respect of an offence under Section 7(1) read with Sections 16 and 17 of the Prevention of Food Adulteration _________________________ 1.
Criminal Appeal No. 90 of 1983 decided by the High Court of Bombay (Aurangabad Bench) on June 13, 1986 resulting in the present appeal by special leave.
The offence was punishable with a sentence of imprisonment exceeding two years.2 The appeal was, therefore, required to be heard by a Division Bench of the High Court and not by a learned Single Judge.
Such is the problem that has arisen in the context of Rule 1 read with Rule 2 II(e) of the Bombay High Court Appellate Side Rules, 1960.3 What then is the consequence? Is the order of conviction and sentence recorded by the learned Single Judge who allowed the appeal merely irregular or void? When a matter required to be decided by a Division Bench of the High Court is decided by a learned Single Judge, the judgment would be a nullity, the matter having been heard by a Court which had no competence to hear the matter, it being a matter of total lack of juris _______________________ of the : 16.
PENALTIES: "Subject to the provisions. . he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punish able with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees:. . . . " 3.
Rule 1: "The Civil and Criminal jurisdiction of the Court, on the Appellate Side, shall, except in cases where it is otherwise provided for by these rules, be exercised by Division Bench consisting of two or more Judges.
" Rule 2 II(e): "Save as otherwise expressly provided by these 2 rules, a Single Judge may dispose of the following matters: II "Appeals against convictions in which only a sentence of fine has been awarded or in which the sentence of imprisonment awarded does not exceed five years with or without fine, appeals against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding two years or with such imprisonment and fine, and appeals under Section 377 of the Code of Criminal Procedure, revision applications and Court notices for enhancement of sentence for offences punishable on conviction with sentence of imprisonment not exceeding two years or with such imprisonment and fine.
(e) Applications for leave to appeal under Section 378(4) of the Code of Criminal Procedure against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding two years or with such imprisonment and fine." 1007 diction.
The accused was entitled to be heard by at least two learned Judges constituting a Division Bench and had a right to claim a verdict as regards his guilt or innocence at the hands of the two learned Judges.
This right cannot be taken away except by amending the rules.
So long as the rules are in operation it would be arbitrary and discriminatory to deny him this right regardless of whether it is done by reason of negligence or otherwise.
Deliberately, it cannot be done.
Negligence can neither be invoked as an alibi, nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules.
What can be done only by atleast two learned Judges cannot be done by one learned Judge.
Even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter.
Even a 'right ' decision by a 'wrong ' forum is no decision.
It is non existent in the eye of law.
And hence a nullity.
The Judgment under appeal is therefore no judgment in the eye of law.
This Court in 1982(3) S.C.R. page 81 (State of Madhya Pradesh vs Dewadas & Ors.) has taken a view which reinforces our view.
We, therefore, allow the appeal, set aside the order passed by the learned Single Judge, and send the matter back to the High Court for being placed before a Division Bench of the High Court, which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law, expeditiously.
We wish to add that the Registry of the High Court was expected to have realized the true position and ought not to have created a situation which resulted in waste of court time, once for hearing the appeal, and next time, to consider the effect of the rules.
No Court can afford this luxury with the mountain of arrears which every Court is carrying these days.
M.L.A. Appeal Allowed.

dataset_name: IN-Abs

summary:
The appeal of the State against the order of acquittal of the appellants of an offence under section 7(1) read with sections 16 and 17 of the , punishable with a sentence of imprisonment exceeding two years, was heard and decided by a Single Judge, though under Rule 1 read with Rule 2 H (e) of the Bombay High Court Appellate Side Rules 1960 such an appeal was required to be heard by a Division Bench.
The Single Judge allowed the appeal, held the appellants guilty and set aside the order of acquittal.
Allowing the appeal of the accused appellants, on the question "whether the decision of a Single Judge in a matter required to be decided by a Division Bench was a nullity," ^ HELD: 1.1 When a matter required to be decided by a Division Bench of the High Court is decided by a Single Judge, the judgment would be a nullity, the matter having been heard by a Court which had no competence to hear the matter, it being a matter of total lack of jurisdiction.
[1006C D] 1.2 In the instant case, the accused appellants were entitled to be heard under Rule 1 read with Rule 2 II(e) of the Bombay High Court Appellate Side Rules 1960, by at least two Judges constituting a Division Bench and had a right to claim a verdict as regards their guilt or innocence at the hands of two Judges.
This right cannot be taken away except by amending the rules.
So long as, the rules are in operation it 1005 would be arbitrary and discriminatory to deny them this right regardless of whether it is done by reason of negligence or otherwise.
Negligence can neither be invoked as an alibi nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules.
What can be done only by at least two Judges cannot be done by one Judge.
[1007A C] 2.
Even a 'right ' decision by a 'wrong ' forum is no decision.
It is non existent in the eye of law.
And hence a nullity.
The impugned judgment is no judgment in the eye of law.
It is set aside and appeal remanded to High Court for hearing by a Division Bench.
[1007C D] State of Madhya Pradesh vs Dewadas & Ors.
, [1982] 3 S.C.R. page 81 relied upon.


judgement:
Criminal Appeal No. 106 of 1987.
From the Judgment and Order dated 9.9.
1985 of the Allahabad High Court in H.C.W.P. No. 16272 of 1984.
Yogeshwar Prasad, D. Bhandari and Vishal Jeet for the Appel lant.
R.K. Garg, Mohan Pandey and R.B. Misra for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave is directed against the order of the Division Bench of the Allahabad High Court by which it has quashed an order of detention of the respondent 428 made under section 3(2) of the (here inafter referred to as 'the Act ').
The High Court relied upon a decision of a Full Bench of that Court in Ashok Dixit vs State and others disposed of on 1.8.1985 being Habeas Corpus Petition No. 11161 of 1984 for its conclusion that the detention of the respondent was bad in law.
The majority opinion of the Full Bench, as far as relevant said: "A solitary assault on one individual which may well be equated with ordinary murder can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act.
It can only raise a 'law and order ' problem and no more.
Assaulting an individual in a bus or train on account of enmity may affect only certain individuals; but if the assault is made indiscriminately in the bus or train and passengers are harassed indiscriminately, the same would be likely to endanger public order as this kind of incident is bound to have such impact that it will disturb the even tempo of life of the community.
The act or incident which may be attributed to the detenu may be reprehensible and yet if it concerns only specific individuals and it has no impact on the general members of the community and has no potentiality of disturbing the even tempo of life of the people, it cannot be held to be an activity prejudicial to public order.
" The Full Bench in its turn referred to several decisions of this Court in its attempt to bring out a distinction between the concepts of Law and order and public order and one of such decisions of this Court is the case of Pushkar Mukherjee vs State of West Bengal, ; This Court said therein: "The difference between the concepts of public order and law and order is similar to the distinction between public and private crimes in the realm of jurisprudence.
In considering the material elements of crime, the historic tests which each community applies are intrin sic wrongfulness or the social expediency which are the two most important factors which have lead to the designation of certain con duct as criminal.
Dr. Alien has distinguished public and private crimes in the sense that some offences primarily injure specific per sons and only secondarily the public interest, while others directly injure the public inter est and affect individuals only remotely.
(See Dr. Allen 's Legal 429 Duties pp.249) There is a broad distinction along these lines, the differences naturally arise in the application of any such test.
" It is claimed that these observations of this Court were taken as the guideline by the Full Bench to ascertain wheth er the allegations brought the case within the purview of public order.
Learned counsel for the appellant has strongly canvassed that the test laid down by Dr. Allen was not applicable to judge the validity of a detention order and the High Court has gone wrong in quashing the detention of the respondent.
It has not been disputed at the Bar that public order and law and order are two distinct concepts.
There is abun dance of authority of this Court drawing the distinction between the two.
In the case of Superintendent, Central Prisons, Fatehgarh vs Ram Manohar Lohia, ; Subba Rao J., as he then was, spoke for the Court thus: "The expression public order has a very wide connotation.
Public Order is the basic need in any organised society.
It implies the orderly state of society any community in which citizens can peacefully pursue their normal activities of life.
In the words of an eminent Judge of the Supreme Court of America "the essential rights are subject to the elementary need for order without which the guarantee of those rights would be a mockery . .
It (public order) is syn onymous with public peace, safety and tran quillity.
" In Ram Manohar Lohia vs State of Bihar, ; Hidayatullah, J., as he then was, speaking for the majority view observed: "One has to imagine three concentric circles.
The law and order represents the largest circle within which the next circle representing public order and the smallest circle represents security of State.
It is then easy to say that an act may affect law and order but not public order just as an act may affect public order but not public order just as an act may affect public order but not the security of the State.
" 430 In Sushanta Goswami & Ors., ; case, this Court observed: "The contravention of law always affects public order but before it can be said to affect public order, it must affect the commu nity or the public at large.
A mere disturb ance of law and order leading to disorder is not necessarily sufficient for action under the Act but a disturbance which will affect public order can alone justify the detention under that Act.
" A Constitution Bench was again called upon to deal with this problem.
In the case of Madhu Limay vs Sub Divisional Magis trate, Monghyr, Hidayatullah, CJ., speaking for the Court observed: "In a judgment, the expression 'in the inter est of public order ' in the constitution is capable of taking within 'itself not only those acts which disturb the security of the State or act within order puglique, as de scribed but also certain acts which disturb public tranquillity or are prejudice of the peace.
It is not necessary to give the expres sion a narrow meaning because, as has been observed, the expression in the interest of public order is very wide.
" In Kanu Biswas vs State of West Bengal, [ this Court stated: "The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturb ance of the public order, is a question of degree and the extent of the reach of the act upon the society.
Public order is, what the French call, is something more than ordinary maintenance of law and order.
The test to be adopted in determining whether an act affects law and order or public order as laid down in the above case Arun Ghosh vs State of WestBen gal, is: Does it lead to disturbances of the current of life of the community so as to amount to a disturbance of public order or does it affect merely an individual leaving the tranquillity of society undisturbed? In Babul Mitra vs State of West Bengal, this court observed: 431 "The distinction between law and order and public order have been pointed out suc cinctly in Arun Ghosh vs State of West Bengal (supra).
According to that decision the true distinction between the areas of law and order and public order is that one of degree and the extent of the reach of the act in question upon society.
The Court pointed out that the act by itself is not determinative of its own gravity.
In its quality, it may not differ but in its potentiality it may be very different.
" A three Judge Bench examined the same point in Kuso Shah vs State of Bihar; , Referring to the facts, the Court observed: "These acts may raise problems of law and order but we find it impossible to see their impact on public order.
The two concepts have well defined contours.
It being wellestab lished that stray and unorganised crimes of theft and assaults are not matters of public order since they do not tend to effect the even flow of public life.
Infractions of law are bound in some measure to lead to disorder but every infraction of law does not neces sarily result in public disorder.
As observed in Pushkar Mukherjee vs State of West Bengal, (supra) the line of demarcation must be drawn between serious and aggravated forms of disor der which directly affect the community or injure the public interest and the relatively minor breaches of peace of purely local sig nificance which primarily injure specific individuals and only in a secondary sense, public interest.
In Dr. Ram Manohar Lohia vs State of Bihar, (supra) Hidayatullah, J. has expressed this concept picturesquely by saying that one has to imagine three concentric circles: law and order represents the largest Circle within which is the next circle repre senting public order and the smallest circle represents the security of the state.
Law and order comprehends disorders of less gravity than those affecting public order just as public order comprehends disorders of less gravity than those affecting the security of state.
" In Ram Ranjan Chatterlee vs State of West Bengal, ; dealing with the same question, this Court stated: "It may be remembered that qualitatively the acts which affect law and order are not dif ferent from the acts which 432 affect public order.
Indeed a state of peace or orderly tranquillity which prevails as a result of the observance or enforcement of internal laws and regulations by the Govern ment is a feature common to the concepts of law and order and public order.
The distinc tion between the areas of law and order and public order, as pointed out by this Court in Arun Ghosh vs State of West Bengal (supra) is one of degree and extent of the reach of the Act in question on society.
It is the potenti ality of the Act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of the public order.
If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of public it would raise a problem of law and order only.
These concentric concepts of law and order and public order may have a common epicentre but it is the length, magnitude and intensity of the terror wave unleashed by a particular exception of disorder that helps distinguished it as an act affecting public order from that concerning law and order.
" In Ashok Kumar vs Delhi Administration, this Court re examined the question and stated: "The true distinction between the areas of public order and law and order lies not in the nature or quality of the act but in the degree and extent of its reach upon society.
The distinction between the two concepts of law and order and public order is a fine one but this does not mean that there can be no over lapping.
Acts similar in nature but committed in different contexts and circum stances might cause different reactions.
In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order.
The act by itself therefore is not determinative of its own gravity.
It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of the public order.
" These are sufficient to draw the conclusion that concep tually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order.
We may now refer to two cases of 433 this Court for that purpose.
In Arun Ghosh 's case (supra) Chief Justice Hidayatullah stated thus: "Take the case of assault on girls.
A guest at a hotel may kiss or make advances to half a dozen chamber maids.
He may annoy them and also the management but he does not cause disturbance of public order.
He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely places.
As a result of his activities girls going to col leges and schools are in constant danger and fear.
Women going for their ordinary business are afraid of being waylaid and assaulted.
The activity of this man in its essential quality is not different from the act of the other man.
But in its potentiality and in its effect upon the public tranquillity there is a vast difference.
The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order.
He disturbs the society and community.
His act makes all the women apprehensive of their owner and he can be said to be causing disturbance of public order and not merely committing individual action which may be taken note by the criminal prosecution agencies.
" Equally useful would be reference to two other cases, Ma thew, J. in S.K. Kedar vs State of West Bengal, approved the ratio of the decision referred to above and indicated : "The question whether a person has only com mitted a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the socie ty.
An act by itself is not determinative of its own gravity.
In its quality, it may not differ from other but in its potentiality it may be very different.
Similar acts in differ ent contexts affect differently law and order on the one hand and public order on the other.
It is always a question of degree of the harm and its effect upon the community.
Public order is the even tempo of the life of the community taking the country as a whole or even as specified localities.
It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.
" 434 In Nagendra Nath Mondal vs State of West Bengal, ; the Court observed as follows: "The target of arson, was an educational institution and particularly the registers and other papers maintained by it.
The object obviously was vandalism, to disrupt its work ing by burning its records and to create a scare so that neither the teaching staff nor the pupils would dare attend it for prosecu tion of studies.
The acts in question no doubt, would be acts similarly to those com mitted by a person who resorts to arson, but in the circumstances, were acts different in potentiality and therefore, amounted to af fecting public order.
" In the final analysis, therefore, one has to turn to the facts on each case to ascertain whether the matter relates to the larger circle or the smaller circle.
An act which may not at all be objected to in certain situations is capable of totally disturbing the public tranquillity.
When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community.
An order of detention made in such a situa tion has to take note of the potentiality of the act object ed to.
No hard and fast rule can really be evolved to deal with problems of human society.
Every possible situation cannot be brought under water tight classifications and a set of tests to deal with them cannot be laid down.
As and when an order of detention is questioned, it is for the Court to apply these well known tests to find out whether the impugned activities upon which the order of detention is grounded go under the classification of public order or belong to the category of law and order.
The criticism of learned council for the appellant against the ratio in Pushkar Mukherjee 's case is perhaps not warranted.
We have pointed out above that the ratio of that decision has been approved in several later cases.
The reference to Dr. Allen 's classification was obviously in tended to bring into bold relief the basic distinction.
The guideline indicated in that judgment in another part falls in line with the general principles adopted by this Court in several authorities.
We do not find that the Full Bench of the Allahabad High Court adopted any wrong basis to draw the difference between the two concepts.
In our opinion, it is unnecessary to examine the facts of this case to find out whether the grounds furnished in support of the order of 435 detention related to public order or not.
The respondent suffered detention for a major part of the period covered by the order and was released when the High Court quashed it.
The detention being one of 1984, in normal course, would have lapsed more than eighteen months back.
The appeal fails and is dismissed.
N.P.V. Appeal dis missed.

summary:
A Division Bench of the High Court quashed the order of detention of the respondent, made under Section 3(2) of the as bad in law, following the earlier Full Bench decision in the case of Ashok Dixit vs State and others that a solitary assault on one individual which may well be equated with ordinary murder can hardly be said to disturb public peace of place public order in jeop ardy so as to bring the case within the purview of the Act, that it can only raise a 'law and order ' problem and no more, and that the act or incident which may be attributed to the detenu may be reprehensible and yet if it concerns only specific individuals and has no impact on the general members of the community and has no potentiality of disturb ing the even tempo of life of the people, it cannot be held to be an activity prejudicial to public order.
In appeal by the State, it was contended that the High Court was wrong in quashing the detention order.
Dismissing the appeal, this Court, HELD: Conceptually, there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order.
Facts of each case have to be looked into to ascertain whether a matter relates to the larger circle or the smaller circle.
An act which may not at all be objected to in certain situations is capable of totally disturbing the public tranquility.
When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community.
An order of detention made in such a situation has to take note of the potentiality of the act objected to.
No hard and fast rule can really be evolved to deal with problems of human society.
Every 427 possible situation cannot be brought under water tight classifications and a set of tests to deal with them cannot be laid down.
As and when an order of detention is ques tioned, it is for the court to apply these wellknown tests to find out whether the impugned activities upon which the order of detention is grounded go under the classification of public order or belong to the category of law and order.
[432H; 434D F] In the instant case, it is unnecessary to examine the facts to find out whether the grounds furnished in support of the order of detention related to public order or not.
The respondent suffered detention for a major part of the period covered by the order and was released when the High Court quashed it.
The detention being one of 1984, in normal course, would have lapsed more than eighteen months hack.
[434H; 435A B] Pushkar Mukherjee and Ors.
vs State of West Bengal, ; ; Superintendent, Central Prison, Fategarh vs Ram Manohar Lohia, ; ; Dr. Ram Manohar Lohia vs State of Bihar and Ors., ; ; In re: Sushanta Goswami & Ors., ; ; Madhu Limaye vs Sub Divisional Magistrate, Monghyr and others; , ; Kanu Biswas vs State of WestBengal, ; ; Arun Ghosh vs State of West Bengal, ; Babul Mitra alias Anil Mitra vs State of West Bengal, ; Kuso Sah vs State of Bihar and Ors., ; ; Ram Ranjan Chatterlee vs State of West Bengal, ; ; Ashok Kumar vs Delhi Administration and others, ; S.K. Kedar vs State of West Bengal, ; Nagendra Nath Mondal vs State of West Bengal, ; , referred to.


judgement:
(Crl.) No. 670 of 1986.
(Under Article 32 of the Constitution of India).
Ram Jethmalani and Ms. Rani Jethmalani for the Petitioner.
G. Ramaswamy, Additional Solicitor General, R.P. Srivas tava and Ms. section Relan for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
By this application under Article 32 of the Constitution the wife of the detenu Wang Chuk assails the order of his detention under section 3(1) read with section 2(f) of the (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 Cus toms 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 affirma tive 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 sixtytwo 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.
The detenu admitted the recovery but maintained that one Puchung, owner of Hotel Kanchan in Nepal owned these arti cles and 326 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 visit ing the detenu 's house now and then for the said purpose.
The detenu was arrested but was enlarged on bail.
The de taining 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.
The detenu made a representation against the detention and the Advisory Board afforded a personal hearing to him on the 7th and 9th of October, 1986.
His detention has been confirmed.
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 accompa nying 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 docu ments shown in Annexure 'C ' were not supplied to him.
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 rele vant papers before making the impugned order.
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.
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.
327 Learned Additional Solicitor General appearing for the respondents produced the record of the detaining authority during the hearing where in the office copy 18 items in all were mentioned.
In paragraph 4 of the counter affidavit filed by Shri C.P. Tripathi on behalf of the detaining authority, it was stated that: "Letter dated 19.4.1986 of the petitioner, addressed to the Collector of Customs, Customs House, New Delhi, together with a list of persons, etc.
was placed before the detaining authority and a copy of the same has been supplied to the detenu along with the grounds of detention.
" In a subsequent affidavit Shri Tripathi stated that the correct contents of the said paragraph as per the record of the respondents should be read as under: "Letter dated 19.4.1986 of the petitioner addressed to the Collector of Customs, Customs House, New Delhi together with a list of persons along with the reply dated 11.6.1986 of the Collector of Customs to the petitioner was placed before the detaining authority.
" The list of documents does not mention the letter dated 11.6.1986 and the respondents ' learned counsel has ultimate ly accepted the position that a copy of that document was not supplied to the detenu.
In the later affidavit filed by Shri Tripathi on behalf of respondents it has again been stated that: "That similarly in the said referred counter affidavit, subpara (ii) of page 5 reads as under: 'Letter dated 28.4.1986 from the petitioner to the Collector of Customs, along with affidavits of Smt.
Tsering Wang Chuck, Mrs. Billa, Shri Nadak, Mrs. Pema, Shri Tse Wang, Mrs. Kalsang Dolma, Mr. Teeman were also placed before the detaining authority.
I say that even the reply of the above referred letter from the Collector of Customs was considered by the detaining authority, a copy of which has also been supplied to the detenu along with the grounds of detention. ' 328 Whereas the correct contents of the said para as per the record of the respondents should read as under: Letter dated 28.4.1986 from the petitioner to the Collector of Customs along with affidavit of the petitioner, Mrs. Billa, Shri Nadak, Mrs. Pema, Shri Tse Wang, Mrs. Kalsang Dolma, Mr. Teeman were placed before the detaining authori ty.
Even the .reply dated 23.6.
1986 of the Collector of Customs, to the detenu was also considered by the detaining authority and a copy of the same has also been supplied to him along with the grounds of detention. ' ' It is conceded by the learned counsel for the respond ents that the letter of the Collector of Customs dated 23.6.
1986 to the detenu was not in reply of the detenu 's letter dated 28.4.
1986 as mentioned in the affidavit.
The facts narrated above clearly indicate that the respondents have acted in a casual manner and have failed to realise what amount of care has to be taken in making a return to the rule in a matter involving challenge to pre ventive detention.
Mr. Jethmalani has rightly commented that when the allegation was that there was no application of mind in the making of the preventive detention, the return should have come either from the detaining authority or a person who was directly connected with the making of the order and not by Shri Tripathi who filed the affidavit on the basis of the record .of the case.
The detenu has contended that he understands only La dakhi language but he can hardly write, read or converse in that language.
Admittedly his wife who is the petitioner before us is a Tibetan refugee and apparently is conversant with both Tibetan as also English.
It is the case of the respondents in the affidavit of Shri Tripathi filed on January 13, 1987 that: "It is thus apparent that the detaining au thority while passing the detention order has fully considered all the 17 documents running to pages 1 to 45 which have been supplied to and received by the detenu along with transla tion thereof in the Tibetan language as admit ted in the writ petition.
" 329 It is not disputed that the law as laid down by this Court requires the detaining authority to provide the material to the detenu in a language which he understands in order that an effective representation against his detention may be made.
A Constitution Bench of this Court in the case of Hadibandhu Das vs District Magistrate Cuttack & Anr., ; has indicated: "Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our judgment, mount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a represen tation against the order.
" This view has been reiterated in several decisions of this Court, (See [1962] 2 Supp.
SCR 918; , , The learned Additional Solicitor General relied upon the feature that the petitioner wife knew both English and Tibetan languages and an effective representation as a fact had been made.
There can be no two opinions that the re quirement of law within the provisions of Article 22(5) of the Constitution is that 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 language in which the grounds were flamed does not satisfy the legal require ment.
Reliance was placed by the learned Additional Solici tor General on a decision of this Court in Prakash Chandra Mehta vs Commissioner and Secretary, Government of Kerala & Ors., in support of his contention that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the documents accompanying the grounds were not in a language known to the detenu the order would not be vitiated.
There is no clear indication of the test of prejudice being applied in that case.
On the facts relevant before the Court, a conclusion was reached that the detenu was merely reigning ignorance of English and on the footing that he knew English, the matter was disposed of.
We must make it clear that the law as laid down by this Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but 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.
(See ; AIR 1975 SC 1513, , AIR 1975 SC 245).
The remaining contention of the petitioner is about the represen 330 tation made to the Advisory Board.
It is a fact that the representation made on 12.9.1986 though received immediately thereafter in the office of the detaining authority had not been sent to the Advisory Board until heating begun.
But in the report of the Advisory Board which has been produced before us during the hearing of the matter we find reference to the representation.
In the absence of any clear material as to when exactly the representation reached the Advisory Board we propose to accept the submission of the learned Additional Solicitor General that the representation was before the Advisory Board when the matter was heard and the detenu was afforded an opportunity of personal hearing.
The net result is that the order of detention cannot be supported for t. he defects and shortcomings indicated above.
We allow the application.
The order of detention is quashed and we direct that the detenu be set at liberty forthwith.
P.S.S. Petition allowed.

summary:
The husband of the petitioner, who is of Ladakhi origin, was found by the Customs authorities in possession of con siderable quantity 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.
The detaining authority relying upon the materials available in the proceedings before the Customs authorities made an order of detention under s.3(1) read with s.2(f) of the .
The grounds in support of that order and copies of 17 documents were supplied to the detenu alongwith it.
The representation made by him against detention was rejected by the Advisory Board.
In the writ petition under Article 32 of the Constitu tion it was contended for the petitioner that the detenu has been denied a fair and adequate opportunity of representing against his detention in as much as the grounds of detention and the copies of documents accompanying 324 the grounds were furnished 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, that 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 article 22(5) of the Constitution is that 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 language in which the grounds were framed did not satis fy the legal requirement.
This denied to the detenu a fair and adequate opportunity of making an effective representa tion against his detention.
[329D E] 1.2 In the matter of preventive detention, the test is not one of prejudice but 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] The requirements of law having not been met the order of detention in the instant case, cannot, therefore, be sup ported.
[330C] Hadibandhu Das vs District Magistrate Cuttack & Anr., ; and Prakash Chandra Mehta vs Commissioner and Secretary, Government of Kerala & Ors., ; , referred to.
The respondents have acted in a casual manner and have failed to realise what amount of care has to be taken in making a return to the rule in a matter involving chal lenge to preventive detention.
In the list of documents supplied to the detenu alongwith the order of detention in all 17 items were shown whereas in the record of the detain ing 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 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 detenu 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 from the detaining authority or a person who was directly connected 325 with the making of the order and not by a person who filed the affidavit on the basis of the record of the case.
[328D E; 327A]