JUDGMENT - Mohta J.-By this Habeas Corpus petition, the detenu petitioner is challenging his detention dated 19–12–1981 under section 3(1) of the COFEPOSA ACT. 2. The substance of the ground of detention is as under: On 30–7-1981, the Directorate of Revenue Intelligence, Bombay Zonal Unit, received secret information that one Tejpal K. Mandot, from Fort Market is receiving and disposing of smuggled goods. He owns Mahalakshmi Stores, 283, Frari Road, Fort Market, Bombay. He keeps the smuggled gold at two places (1) M/s Mahalakshmi Stores 283, Frari Road, Fort and (2) 151 Bazargate Street, 2nd floor, room No. 20 having telephone No. 260490. The gold is taken to Zaveri Bazar by his two carriers viz. Narayan and Babulal on Scooter No. DEG-1856. This information was passed on to the Collector of Customs. On that very day, for taking suitable action pursuant to this information, the Officers of the Customs, accompanied by the Officers of D. R. J. Bombay, searched the premises of M/s Mahalakshmi Stores in the presence of independent panch witnesses. During the course of search two persons namely the petitioner and one Narainlal Pannalal Lakhara were present in the said shop. The search resulted in the finding of Indian Currency amounting to Rs. 54,933 and foreign currency of various countries (8000 French Francs, 250 sterling pounds, 804 U. S. dollars and 1 Bahrain Dinar). The Officers also recovered four paper packets which were found to contain 40 gold bars of 10 tolas each each bear n g foreign markings, which were collectively valued at Rs. 7, 66,000 at the local market rate. All the above said Indian Currency, textiles (valued at Rs. 600) and the 40 bars of gold were seized under the provisions of Customs Act, 1962. The foreign currency was seized under a separate panchnama. The scooter parked in front of the shop which was used for transporting smuggled gold was also seized. The officers also searched the residential premises at 275 Bazargate Street, 3rd floor, Bombay and seized some documents as relevant for conducting further enquiry. The officers also searched the premises situated at 151, Room No. 20, 2nd floor, Bazargate Street, with NIL result. The officers also searched the residential premises at 275 Bazargate Street, 3rd floor, Bombay and seized some documents as relevant for conducting further enquiry. The officers also searched the premises situated at 151, Room No. 20, 2nd floor, Bazargate Street, with NIL result. From the statement of the detenu recorded under section 108, Customs Act it was revealed that one Hanif s/o K. Hussain was concerned in the supply of gold bars and as such the officers also searched the residential premises of Hanif, situated at room No. 38, 3rd floor, Contractor Building 12/14, Karwar Street, Bombay, but nothing incriminating was found. The detenu had also stated that the gold belonged to said Hanif and he used to sell the same on commission of Rs. 50 on each bar. Supply of gold was made by Hanif through one person whose name he did not know. Hanif gave his telephone No. 265707 and the detenu had talked with Hanif on three or four occasions-On 30–7-1981, at about 1 p.m., the said person came to the shop and delivered the gold in a rexin bag, which was kept in a wooden cupboard which was locked up. The Indian Currency of Rs. 40,000 recovered from the premises was the sale proceeds of the gold. 3. The detenu was arrested on the next day and remanded to the judicial custody till 14–8-1981. The detenu sent letters dated 3–8-1981 and 25–8-1981 to the Assistant Collector of Customs stating that his statement was obtained by Customs under duress and false inducement. These allegations were rebutted by the Customs authorities. The statement of Hanif was also recorded on 7–8-1981, in which he admitted that he was staying at room No. 38, 3rd floor, 12/14 Karwar Street, Bombay 38 and that his telephone number was 265707 which was under his control. Hanif has two brothers, one Abdulla @ Atta, aged 31 years staying at Diera Dubai having phone connections at the shop as well as residence. He further stated that he was arrested by Bombay Customs in Alsiraj watch case and he was detained under COFEPOSA by the Government of Maharashtra in the year 1978 and was released in 1979. He had made few calls from his residential telephone No. 265707 to his brother Atta in Dubai. He, however, denied having any connection in the smuggling of contraband goods. He had made few calls from his residential telephone No. 265707 to his brother Atta in Dubai. He, however, denied having any connection in the smuggling of contraband goods. He knew the detenu only as his neighbour and had never sold any gold bars to the detenu. The statement of Narayanlal Lokhere was recorded under section 108 of the Customs Act on 30–7-198i and he inter alias staled that he had taken on rental basis one shop at 280 S. N. Road, Fort, Bombay from Laxmilal Shah and thereafter he purchased the said shop from Laxmichand for Rs. 12000 and had given the said shop to the detenu on lease of Rs. 200 per month. According to Narayanlal on 30–7-1981 when the Customs Officers came to the shop and searched the shop under the cover of a search warrant in presence of the pachas during the course of search, the detenu told the Customs Officers that the wooden cupboard contained gold of foreign origin, foreign currency and some Indian rupees. From the person of the detenu the Custom Officers recovered a sum of Rs. 14935 and two bunch of keys. The officers also recovered a sum of Rs. 40,000 some foreign currency and 40 biscuits of gold of ten tolas each bearing foreign marking and also textiles (valued at Rs. 600). He further added that the detenu had admitted that the above said goods belonged to him. 4. Having been satisfied on the aforesaid material that it was necessary to detain the detenu, the order has been passed the legality of which is challenged on the following five points before us: (1) Factual components were wrongly stated which demonstrates the total non-application of mind. (2) The copies of documents referred to in the grounds of detention are not supplied. (3) The retractions of the accused made on 3–8-1981 and 23–9-1981 have not been considered in the order. (4) Copies of intelligence report have been wrongly suppressed by claiming privilege unjustified. (5) Right of representation and personal hearing before the Advisory Board is not mentioned in the grounds of detention. 5. As regards point No. 1, the grievance is that while referring to the number of calls from the residential telephone No. 265707 of Hanif it is mentioned that in all “four” calls were made though in fact the statement says that “few” calls were made. 5. As regards point No. 1, the grievance is that while referring to the number of calls from the residential telephone No. 265707 of Hanif it is mentioned that in all “four” calls were made though in fact the statement says that “few” calls were made. Now, it does appear that this mistake has crept in the detention order. But from this, it is difficult to come to the conclusion that there has been non-application of mind. Every mistake or error is not necessarily demonstrative of non-application of mind. Emphasis has always to be not so much on accuracy or on the nature or incident of error but on the state of mind of the detaining authority. The test has to be whether casual approach demonstrating want of care and caution has been made. 6. As regards Point No. 2, the argument is that all the documents seized as per the panchnama should be deemed to have been referred in the grounds of detention and, therefore, it was mandatory to supply copies of all of them. In this connection reliance was placed on the case of (Kirt Kumar Chamanlal Kundaliya v. Union of India and others)1. We have gone through the said judgment and we do not find that the ratio of the said decision is to the above effect. The test in the connection has always been whether the documents have formed the basis of the subjective satisfaction for taking a decision to detain. It is not even necessary to furnish the copies of documents to which casual or passing reference is made in the narration of events. It is not the case of the petitioner that he of his own accord requested for copies of certain documents seized and they were not supplied. The Division Bench of this Court in (Mohd. Hussain @ Mohd. It is not the case of the petitioner that he of his own accord requested for copies of certain documents seized and they were not supplied. The Division Bench of this Court in (Mohd. Hussain @ Mohd. Hasan Ansari v. The Secretary, Government of Maharashtra)2, after analyzing several decisions of the Supreme Court, on the point summarized the law laid down thus: “(a) the copies of all the documents which are relied upon in, or which form the basis of, the ground of detention must be supplied to the detenu along with the grounds of detention; (b) the documents which are not relied upon or do not form the basis of the detention order but which are merely referred to casually or incidentally as and by way of narration of facts in the grounds of detention need not be supplied to the detenu; (c) however, even such documents, if the detenu requests for the same have to be supplied to him, for whether they are relevant to his defence or not is for the detenu to decide and not for the detaining authority to judge.” We have our respective concurrence with the above conclusions. The grievance made before us is about non supply of the copies of the telephone bills in respect of telephone No. 267924 dated 11–6-1981, Bank Pass Book, several search warrants dated 30–7-1981 issued by the Customs authorities. We have perused the grounds of detention and so also the affidavit sworn by the detaining authority Shri B. K. Chougule, Secretary to the Government of Maharashtra, Home Department. Contents of none of these documents appear to be the basis of the subjective satisfaction and under the circumstances; we see no substance in this point. 7. As regards point No. 3, we find that retracted statements dated 3–8-1981 and 23–8-1981 are in terms considered by the detaining authority. In fact there is also reference to the fact that Customs authorities have rebutted the allegations of duress and inducement. Even in the affidavit sworn by the detaining authority, it is mentioned that the retractions were considered and thereafter discarded. Use of particular phraseology. g. “that the retractions have been considered and rejected,” is not at all necessary. In fact it is not even necessary to mention the retractions in the order. After all order of detention is not an exhaustive judgment. Use of particular phraseology. g. “that the retractions have been considered and rejected,” is not at all necessary. In fact it is not even necessary to mention the retractions in the order. After all order of detention is not an exhaustive judgment. All is expected of the detaining authority is to satisfy the Court that in point of fact the retractions are considered. Thus this point also appears to us to be devoid of any merit. 8. As regards point No. 4 it is contended that the claim of privilege as regards certain intelligence reports referred to in the list of documents but not referred to in the order of detention is unjustified. The explanation offered on behalf of the State is that this detenu as well as Hanif were both ordered to be detained and this list dated 19–12–1981 is a common list of documents forming basis in respect of the detention of both. As a matter of fact, the intelligence reports of various dates mentioned against item No. 28 of the said list has nothing to do with the case of the detenu. Looking to the whole circumstances, we see no reason to discard this explanation. 9. This takes us to the last point viz. whether it is mandatory for the detaining authority to appraise the detenu of his right to make the representation against the order and of personal hearing before the Advisory Board. Shri Merchant, the learned counsel for the detenu invited our attention to the case of (Wasi Uddin Ahmed v. The District Magistrate, Aligarh, U. P. and others)3 and particularly the following observations: “It is unfortunate that there was a failure to mention in the grounds of detention, that the detenu had the right to make a representation against the order of detention as envisaged by Article 22(5) of the Constitution read with section 8 of the Act, and also the right of being heard before the Advisory Board while he was served with the order of detention. It is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. It is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. In the present case, the grounds of detention served upon the detenu do not contain any such recital. It, however, appears that the detenu was furnished a copy of the Constitution on March 25, 1981 at the Central Jail, Fatehgrah, presumably at his own request, for the purpose of making a representation against the order of detention. The words “and shall afford”' in Article 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must “appraise” a detenu of his constitutional right under Article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make representation tinder Article 22(5) would be, in many cases, of little avail as the detenu is not “informed” of this right. The failure to comply with this requirement, however, does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has been in active politics and was, therefore, fully cognisant of his right to make a representation under Article 22(5) of the Constitution and under section 8 of the Act. In fact, the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board.” 10. It was firstly contended that while the first part of the observations is a ratio the later part dealing with the fact and effect of representation actually made is not. We are unable to accept this submission. 11. It is true that Wasi Uddin's case was of a detention under National Security Act and not under COFEPOSA Act. It was firstly contended that while the first part of the observations is a ratio the later part dealing with the fact and effect of representation actually made is not. We are unable to accept this submission. 11. It is true that Wasi Uddin's case was of a detention under National Security Act and not under COFEPOSA Act. But that will make no difference for attracting provisions of safeguard contained in Art. 22 (5) of the Constitution which apply to all varieties of detention. Indeed, close scrutiny of the provisions of the COFEPOSA Act as well as the National Security Act would reveal that the provisions are parimateria. Supreme Court while dealing with detention under the COFEPOSA Act in the case of (Narendra Purshotam Umrao v. B. B. Gujral and others).4 has observed as under: “The Constitutional safeguards embodied in Art. 22 (5) of the Constitution must be read into the provisions of Section 8 (b) of the Act, 1974 to prevent to any arbitrary executive action.” In Vimal Chand Jawantraj Jam v. Pradhan and others.5 it is observed: “It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safeguards provided in clauses (4) and (5) of Art. 22 and if any order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated in the law authorizing preventive detention, because even if they are not, they would be deemed to be part of the law as a super-imposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention.” 12. Thus while it may not be possible to draw any distinction between the COFEPOSA Act and the National Security Act in this regard, it does appear that the observations made by the Supreme Court in Wasi Uddin's case do not warrant a conclusion that right of being heard before the Advisory Board and of personal hearing before it is a right conferred under Article 22(5) of the Constitution as rightly submitted by Shri Kotwal the learned Public Prosecutor. Article 22(5) only refers to the right of representation to the detaining authority and admitted position is that the detenu has been appraised of this right in the order. It is also not possible to accept the contention that as per Wasi Uddin's case failure to inform the right of representation and personal hearing before Advisory Board renders the order illegal. Supreme Court has laid down in terms that failure to inform of such right does not render every order illegal. Whether or not it does will depend upon the facts of each case. In the present case the detenu has not raised the point in the petition. Papers have been placed before us from which it is clear that the detenu had in fact made representation and has personally appeared before the Advisory Board. In this back ground, we do not feel that order is bad by virtue of the only fact that it does not refer to the right of the detenu to approach the Advisory Board. 13. In the conclusion, the petition is dismissed and the Rule is discharged. Petition dismissed. -----