S. B. MAJMUDAR, J. ( 1 ) IN this petition under Art. 226 of the Constitution the petitioner who is detained under sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (`the COFEPOSA Act) has challenged the order of his preventive detention on diverse grounds. ( 2 ) THE order of detention is dated 26-5-1986. That order is supplied by grounds of detention (Annexure B ). They are of even date. They were supplied to the detenu alongwith the order of detention when he was taken in custody. Actual date of his detection is 26-5-1986. This detention order has been followed by a declaration under sec. 9 (1) of COFEPOSA Act issued by Mr. M. L. Wadhwan Additional Secretary to the Govt. of India in exercise of his powers under sec. 9 (1) of the COFEPOSA Act. A copy of the said declaration is at Annexure D to the petition. Its Gujarati version is on the next page of the petition. ( 3 ) THIS petition was admitted to final hearing on 29-12-1986 by a Division Bench of this Court consisting of D. C. Gheewala and J. P. Desai JJ. In response to the Rule issued in the petition Mr. R. B. Verma Assistant Collector of Customs (COFEPOSA) has filed his affidavit in-reply. Mr. M. L. Wadhwan Additional Secretary to the Government of India Ministry of Finance Department of Revenue who is author of sec. 9 (1) declaration has filed his affidavit-in-opposition. Mr. P. N. Roychaudhary Deputy Secretary to the Government of Gujarat Home Department (Special) has also filed his affidavit-in-opposition. It is followed by one additional affidavit of Mr. P. V. Baria Police Inspector C. I. D. (Crime ). ( 4 ) MR. Thakkar for the petitioner raised various contentions for challenging the impugned order of detention under sec. 3 (1) and the declaration under sec. 9 (1) of the COFEPOSA Act. In our view the attack on the legality and validity of the declaration under sec. 9 (1) goes to the root the matter for the simple reason that if the declaration (Annexure D) falls through the extended time schedule for taking various steps pursuant to the order of detention under sec. 3 (1) as laid down by sec. 9 (2) read with sec. 9 (1) goes to the root the matter for the simple reason that if the declaration (Annexure D) falls through the extended time schedule for taking various steps pursuant to the order of detention under sec. 3 (1) as laid down by sec. 9 (2) read with sec. 8 of the COFEPOSA Act would not be available to the respondents and if that happens even the original order of detention under sec. 3 (1) would be liable to fail as in this case admittedly the State of Gujarat has confirmed the order of detention after receipt of the report of the Advisory Board on 14 i. e. more than three months after the date on which the petitioner was originally detained pursuant to the order of detention. Consequently we have thought it fit to examine this main contention canvassed by the learned Advocate for the petitioner centering round legality and validity of the declaration under sec 9 (1) and have not thought it fit to go into other contentions canvassed by the learned Advocate for the petitioner for challenging the impugned order under sec. 3 (1) independent of legality of sec. 9 (1) declaration. The declaration under sec. 9 (1) has been signed by Mr. M. L. Wadhwan Additional Secretary to the Government of India. The declaration is in English and it recites:whereas I the undersigned specially empowered in this behalf by the Central Government have carefully considered the grounds of detention and the material served on the detenu;now therefore I the undersigned hereby declare that I am satisfied that the aforesaid Shri Salemamad Suleman Gadh is likely to smuggle goods into the coast of Gujarat which is an area highly vulnerable to smuggling as defined in explanation 1 to sec. 9 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 ( 5 ) EVEN this declaration under sec. 9 (1) was challenged by the learned Advocate for the petitioner on diverse grounds. One of the contentions was that sec. 9 (1) declaration is bad as Gujarati version is not faithful rendering in Gujarati of the English version and reading the Gujarati version as the main version it clearly appears that the detaining authority had relied upon some material which was in his possession and which he had not parted with and supplied to the detenu. 9 (1) declaration is bad as Gujarati version is not faithful rendering in Gujarati of the English version and reading the Gujarati version as the main version it clearly appears that the detaining authority had relied upon some material which was in his possession and which he had not parted with and supplied to the detenu. Hence the detenu was deprived of his right both constitutional and statutory to make a representation against that declaration to the appropriate authorities including the Advisory Board and consequently the declaration must fall through. It was next contended that the Additional Secretary to the Government of India Mr. Wadhwan who is the competent authority who had signed this declaration at Annexure `d does not know Gujarati and various documents which were supplied to the detenu alongwith the grounds of detention when he was taken in custody pursuant to the sec. 3 (1) order are in Gujarati. Therefore the authority issuing the declaration under sec. 9 (1) must have got translated these voluminous documents into English and thereafter he must have applied his mind and passed the impugned order of declaration. These English translations of Gujarati documents therefore became basic material for the competent authority issuing the declaration and these English translations which were basic material for issuance of 9 (1) declaration were not supplied to the detenu alongwith the copy of the declaration. Consequently the detenu was deprived of his right of making an effective representation against the declaration to the competent authority. That if this basic material viz. English translation of the Gujarati documents relied upon by the authority issuing the declaration was supplied to the petitioner he could have urged in his representation against the declaration that English rendering relied upon by the authority while issuing declaration was not accurate rendering of the Gujarati documents and that would have had a material bearing on the result of his representation before the competent authority. As this opportunity was denied to the petitioner the declaration at Annexure D has to be treated as invalid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 6 ) SO far as challenge to sec. 9 (1) declaration on the ground that English version of the relevant documents is not supplied to the detenu though taken into consideration by the declaring authority is concerned we may look at the averments in the petition as put forward by the petitioner. In para 17 of the petition it has been stated as under:the petitioner says that according to him respondent No. 2 had no knowledge of Gujarati language and while issuing the declaration he had relied upon the material which is supplied to the petitioner by the respondent No. 1. The following documents under pages Nos. 1 to 151 185 to 441 695 to 753 859 to 863 885 to 895 927 949 to 953 963 to 975 991 1039 to 1063 1089 to 1107 1117 to 1123 1527 to 1542 1677 1693 1703 to 1705 are in Gujarati. The petitioner Says that the respondent No. 2 had no knowledge of the Gujarati so all the above documents must have been translated in English before passing the declaration by the respondent No. 2 even though it is demanded by the petitioner by way of making representation on 2/08/1985. So the petitioner is deprived of making a representation against the declaration because of non-supply of the documents. The petitioner further says that whether the true translation is placed before the detaining authority or not it can be said only when it is supplied to the petitioner. Since the said translated document is not supplied to the petitioner the petitioner is not in a position to know the real truth of the declaration on that count also the declaration became bad. Since the said translated document is not supplied to the petitioner the petitioner is not in a position to know the real truth of the declaration on that count also the declaration became bad. This is followed by averments in para 18 which read as under:the petitioner says and submits that it is enjoined upon the 2nd respondents to satisfy this Honourable Court as to whether the documents on the basis of which the impugned declaration was issued were placed before him in English language as the bulk of the documents are in Gujarati language. The 2nd respondent does not seem to be conversant with Gujarati language. The petitioner says and submits that unless the Gujarati documents were translated into English and were placed before the 2nd respondent the 2nd respondent could not have considered the same. The petitioner says and submits that if such Gujarati documents were translated into English and if such English translations were placed before the 2 respondent the copies of such translations ought to have been furnished to the detenu so as to enable him to know as to whether the correct translations were placed before the 2nd respondent. The same not having been done: the detenus right under Article 22 (5) of the Constitution of India is infringed and as a result the impugned order of detention as well as the impugned declaration are mala fide null and void. ( 7 ) NOW so far as these averments are concerned it would be profitable to have a look at what the authority issuing declaration under sec. 9 (1) has to say. Mr. M. L. Wadhwan Additional Secretary to the Government of India in his affidavit to the petition has stated in collection with the averments in the petition in grounds 16 17 18 as under in para 3 of his affidavit :with reference to grounds 16 17 and 18 it is submitted that I had satisfied my- self that the detenu was indulging in smuggling activities specified under sec. 9 (1) of the COFEPOSA Act and that these activities were being carried out in an area highly vulnerable to smuggling. Considering the role of the detenu and the fact that his smuggling activities were centred in an area highly vulnerable to smuggling I made the declaration under sec. 9 (1 ). 9 (1) of the COFEPOSA Act and that these activities were being carried out in an area highly vulnerable to smuggling. Considering the role of the detenu and the fact that his smuggling activities were centred in an area highly vulnerable to smuggling I made the declaration under sec. 9 (1 ). It is further submitted that the grounds of detention and the material served on the detenu along with the grounds of detention were considered while issuing the declaration under sec. 9 (1 ). ( 8 ) IN view of the aforesaid stand taken by respondent No. 2 the author of sec. 9 (1) declaration it becomes at once clear that he has totally glossed over the main contentions canvassed by the petitioner in paras 17 18 of the petition. He nowhere meets the contention that he does not know Gujarati language nor does he meet the contention that only English version of these documents was considered by him when he issued declaration under sec. 9 (1 ). Therefore it must be taken as well established on the record of this case in the light of the aforesaid pleadings of the parties that respondent No. 2 who has issued declaration under sec. 9 (1) did not know Gujarati and consequently he had only looked at the English translation of large number of documents listed in para 17 of the Petition while issuing declaration under sec. 9 It is therefore obvious that the English rendering of these voluminous documents referred to pagewise in para 17 of the petition was the material available with respondent No. 2 and on the basis of the same amongst others he issued the impugned order of declaration under sec. 9 (1) after having considered this material in English. Therefore this material became basic material for him. If that is so this basic material had to be supplied by him to the detenu to enable him to make an effective representation against declaration under SEC. 9 (1) to the competent authority. It also becomes an admitted fact on record that English translation of these Gujarati documents relied upon by respondent No. 2 while issuing the declaration under sec. 9 (2) was not supplied to the detenu alongwith the declaration under sec. 9 (1 ). It is in the light of this admitted factual position that the short question canvassed by Mr. It also becomes an admitted fact on record that English translation of these Gujarati documents relied upon by respondent No. 2 while issuing the declaration under sec. 9 (2) was not supplied to the detenu alongwith the declaration under sec. 9 (1 ). It is in the light of this admitted factual position that the short question canvassed by Mr. Thakkar centering round legality and validity of sec. 9 declaration has to be resolved. Mr. Thakkar placed strong reliance on two decisions of the Court in this connection. Our attention was invited to a decision of a Division Bench of this Court consisting of A. M. Ahmadi and D. H. Shukla JJ. in the case of Abdula Mamad Mithani v. State of Gujarat 1986 Cri. L J. 1886 ( 1986 (2) GLR 1380 ). The question posed before this Court was as to whether non-supply of documents to the detenu and material relied upon by the declaring authority which has issued declaration under sac. 9 (1) would vitiate the declaration under sec. 9 (1 ). The Division Bench speaking through Ahmadi J. took the view that since the Advisory Board can go behind the declaration it stands to reason to hold that the detenu must have as opportunity to represent against his continued detention by pointing out that the material on the basis whereof the declaration was mad was not sufficient for reaching the subjective satisfaction required or making the declaration. In the case before the Division Bench it was found that the basic material in support of the declaration was not supplied to the detenu nor was the detenu informed that the declaration was founded on the very same material on which the detention order was made by the appropriate authority. On that ground alone the detention order was held liable to be quashed as this infirmity would deprive the detenu of his right of making an effective representation against the declaration. In the present case the facts are almost similar. Here large number of documents whose English translations were relied upon by respondent No. 2 who does not know Gujarati have been pressed in service by him for arriving at his subjective satisfaction on which declaration under sec. 9 (1) is based. Thus these documents translated into English constituted basic material for supporting declaration under sec. 9 (1 ). Here large number of documents whose English translations were relied upon by respondent No. 2 who does not know Gujarati have been pressed in service by him for arriving at his subjective satisfaction on which declaration under sec. 9 (1) is based. Thus these documents translated into English constituted basic material for supporting declaration under sec. 9 (1 ). This basic material is admittedly not supplied to the petitioner. Therefore it must be held in the light of the ratio of the Division Bench judgment in Abdulas case (supra) that this petitioner was deprived of a reasonable opportunity of making an effective representation against the declaration and therefore declaration would be bad. ( 9 ) OTHER judgment of the Division Bench on which reliance was placed was rendered in the case of Suleman Isa v. Union of India reported in 27 (13 GLR 529. Another Division Bench consisting of one of us (S. B. Majmudar J.) and R. J. Shah J. had to consider the question as to whether detenu can be said to have been deprived of a right of making an effective representation under Art. 22 (5) of the Constitution of India against the detention order when the original documents relied upon by the detaining authority for passing the detention order were not supplied to the detenu but only copies thereof though in the language understood by the detenu were supplied to him. In that case detenu was supplied with copies of the documents which were originally in Hindi and Bengali languages. These original documents were relied upon by the detaining authority while passing the order of detention but the material supplied to the detenu alongwith detention order consisted of translations of these documents in the language understood by the detenu. Thus it was a case in which the documents supplied were in the language understood by the detenu but they were translations; while the original documents were not supplied. It was also found that original documents were in Hindi and Bengali languages which languages were not understood by the detenu. Thus it was a case in which the documents supplied were in the language understood by the detenu but they were translations; while the original documents were not supplied. It was also found that original documents were in Hindi and Bengali languages which languages were not understood by the detenu. Still it was held in the aforesaid judgment that detenu was deprived of the right of making an effective representation under Art. 22 (5) of the Constitution against the detention order as without supply of original documents he was not in a position to submit in his representation whether translations supplied to him were true and current translations of the original documents or not. That would have been possible if he had an opportunity to compare the originals with the translations. R. J. Shah J. speaking for the Division Bench made the following observations in this connection:unless the materials and documents relied on in the order of detention are supplied to the detenu along with the grounds the supply of grounds without the copies of the original documents would not give him a real opportunity to represent but would merely be an illusory opportunity to make a representation to the detaining authority. ( 10 ) ON the facts of the present case also a similar situation has arisen. English versions of the documents listed at para 17 of the petition which were relied upon by the declaring authority for arriving at his subjective satisfaction on which sec. 9 (1) declaration was based were not supplied to the detenu and he was supplied only Gujarati versions of these English translations which at the stage of sec. 9 (1) declaration became original documents because the declaring authority never knew Gujarati and on which aspect there was no dispute between the parties. Consequently in the light of the ratio of the aforesaid two Division Bench decisions of this Court there is no escape from the conclusion that the detenu in the present case was denied a reasonable opportunity of making an effective representation against the declaration under sec. 9 and because that declaration has to fall through and must be treated as ineffective and inoperative in law. ( 11 ) HOWEVER Mr. S. D. Shah for the respondent No. 2 tried to salvage the situation by raising these contentions. 9 and because that declaration has to fall through and must be treated as ineffective and inoperative in law. ( 11 ) HOWEVER Mr. S. D. Shah for the respondent No. 2 tried to salvage the situation by raising these contentions. Firstly he submitted that the basic material consisted of original documents in Gujarati which are admittedly supplied to the detenu alongwith sec. 3 (1) order. Consequently even if English translations thereof are not supplied to the detenu it cannot be said that right of effective representation against the declaration order was in any way infracted as Gujarati documents were very much with the detenu since the date of service of detention order on him. It was next contended that in any case declaration under sec. 9 (1) can be salvaged by relying on sec. 5 (A) of the Act. It was lastly contended that the petitioner has not shown that any prejudice has been actually caused to him by non-supply of English translations of these documents and that he has not made any demand for supply of such documents. ( 12 ) SO far as the first contention of Mr. Shah is concerned it is obvious that at the sec. 3 (1) stage Gujarati documents remained the original documents which were relied upon by the detaining authority for passing the order of detention. Thus at the stage of sec. 3 (1) order it can be easily visualised that original Gujarati documents were supplied to the detenu and qua that order the petitioner got reasonable opportunity to make an effective representation. But that is not the question with which we are concerned at this stage. The question is what is the basic material on the basis of which the authority issuing declaration under sec. 9 (1) has been satisfied and has consequently issued the said declaration. So far as this aspect of toe matter is concerned there remains no doubt that respondent No. 2 who is the author of the declaration under sec 9 (1) does not know Gujarati. Therefore. English translations of these documents constituted the basic material for him for basing his subjective satisfaction underlying sec. 9 declaration. Thus at the stage of sec. 9 (1) a new basic material came to be pressed in service by the appropriate authority exercising power under sec. 9 (1 ). Therefore. English translations of these documents constituted the basic material for him for basing his subjective satisfaction underlying sec. 9 declaration. Thus at the stage of sec. 9 (1) a new basic material came to be pressed in service by the appropriate authority exercising power under sec. 9 (1 ). He never relied upon the Gujarati versions of these documents as he did not know Gujarati. Thus at the stage of sec. 9 (1) the basic material comprised of the documents translated into English. The petitioner had to be given reasonable opportunity of making effective representation against the declaration under sec. 9 (1 ). To enable him to effectively represent against that declaration whatever original material was relied upon by the declaring authority had to be supplied to him. As the declaring authority treated English translations of Gujarati documents as the basic material those translations had to be supplied to the petitioner by treating them as original and basic material supporting sec. 9 (1) declaration. Thus what was the original material for sec. 3 (1) order became subsidiary at the stage of sec. 9 (1) declaration and what might have been subsidiary material had it been supplied to the detenu alongwith sec. 3 (1) order viz. English translations of original Gujarati documents became basic material for respondent No. 2 at the stage at which he issued sec. 9 (1) declaration. As we are concerned with legality of sec. 9 (1) declaration what we have to see is what is the basic material at that stage and as basic material at that stage consisted of the English translations of the Gujarati documents those English translations had to be supplied to the detenu to enable him to make an effective representation against sec. 9 (1) declaration before the Board and other appropriate authorities. As that was not done the conclusion is inevitable that the petitioner was deprived of reasonable opportunity of making an effective representation against sec. 9 (1) declaration and on that ground the declaration has to fail. That disposes of the first contention canvassed by the learned Advocate for the respondents in support of the declaration. ( 13 ) SO far as second contention raised by Mr. Shah for the respondents is concerned it is still on a weaker footing. A mere look at sec. 9 (1) declaration and on that ground the declaration has to fail. That disposes of the first contention canvassed by the learned Advocate for the respondents in support of the declaration. ( 13 ) SO far as second contention raised by Mr. Shah for the respondents is concerned it is still on a weaker footing. A mere look at sec. 5 (A) shows that the legislature has enacted a deeming fiction for sustaining orders under sec. 3 (1) in cases where such detention orders are based on two or more grounds and where it is found that one or more of the grounds suffer from infirmities as listed in sec. 5 (A ). In such a situation subjective satisfaction underlying detention order under sec. 3 (1) is deemed to have been based on the remaining grounds which may be valid. Thus by process of statutory fiction and by process of elimination a jettisoning operation is provided by the legislature for salvaging detention order passed under sec. 3 (1) by raising a deeming fiction about validity of the order presumably based on remaining valid grounds. By the very language of sec. 5 (A) therefore deeming fiction provided by the legislature has to fall within the four corners of that section. It cannot be extended by any process of reasoning to a declaration under sec. 9 (1) for which no such deeming fiction is enacted by the legislature. If any such attempt is made by the Court it would amount to legislating through judicial interpretation. This is obviously not open to us. It is for the legislature to decide whether such a deeming fiction should also be provided for supporting the declaration under sec. 9 (1) on the remaining valid grounds on which such declaration is based if some of them are found to be vitiated for any reason. Consequently it is not possible to transplant sec. 5 (A) and to telescope it in the scheme of sec. 9 of the Act. The second contention raised by the learned Advocate for the respondent also has to be rejected. So far as the third contention is concerned it is to be kept in view that when supply of basic material on which a detention order under sec. 5 (A) and to telescope it in the scheme of sec. 9 of the Act. The second contention raised by the learned Advocate for the respondent also has to be rejected. So far as the third contention is concerned it is to be kept in view that when supply of basic material on which a detention order under sec. 9 (1) is based is a statutory as well as a constitutional obligation of the authority it is hardly an answer to the charge of breach of such obligation to submit that no prejudice is shown to be caused or that the authority was not called upon to discharge its obligation. Breach of the constitutional mandate of Art. 22 (5) is itself the prejudice caused to the detenu and it will fatally affect the order tried to be sustained despite such breach. The third contention of Mr. Shah also fails. ( 14 ) IN view of the aforesaid discussion it must be held that on the facts of the present case the declaration at annexure `d must be held to be invalid as the petitioner was not given a reasonable opportunity of making effective representation against the said declaration. Consequently the declaration at annexure `d alongwith its Gujarati version must be quashed and set aside. Once this conclusion is reached the result is obvious. It will rebound on the original detention order under sec. 3 (1) for the simple reason that once protection of sec. 9 (1) declaration is withdrawn and once the order under sec. 3 (1) is left to fend on its own without that protection the original time schedule will be required to be complied with in connection with the detention order under sec. 3 (1 ). It is not complied with on the facts of the present case. The date of detention of the petitioner is 29-5-1986 while the date of confirmation of the detention order is 14 Thus detention order is confirmed beyond three months from the date on which the petitioner was taken in detention pursuant to the detention order. Consequently the original detention order also will have to be quashed and set aside. As per sec. Consequently the original detention order also will have to be quashed and set aside. As per sec. 8 (1) of the Act the Adviso-ry Board to which reference is made under clause (b) has to consider the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned and if in any. particular case the Board considers it essential so to do or if the person concerned desires to be heard in person after hearing him in person prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of person concerned and if the report is to the effect that there is sufficient cause for detaining a person then as per clause (f) of sec. 8 appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. In the present case the opinion of the Advisory Board was not received within 11 weeks from the date of detention. On the contrary it was received on 8-10-1986 and thereafter the order of confirmation was passed. This was done presumably because sec. 9 (1) declaration which we have found to be invalid was pressed in service by the concerned respondents and therefore they read for the words 11 weeks in sec. 8 (1) 4 months and two weeks in view of sec. 9 (2 ). Now that extended time schedule is not available to the respondents in view of our present finding that sec. 9 (1) declaration is invalid and is not available to protect sec. 3 (1) order. Consequently the very submission of the report of the Advisory Board on the facts of this case would become time barred and consequent confirmation order also would fall through. 9 (1) declaration is invalid and is not available to protect sec. 3 (1) order. Consequently the very submission of the report of the Advisory Board on the facts of this case would become time barred and consequent confirmation order also would fall through. In this connection it is necessary to keep in view the mandate of Art. 22 (4) of the Constitution which provides that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7 ). It is necessary to note that sec. 9 has been enacted by the legislature in exercise of the powers conferred by the Constitution as per proviso to sub-Article (4) of Art. 22. Once that provision is not available to support the detention order as seen above mandate of sub-Art. (4) of Art. 22 would start operating. Original detention order would fall through after three months unless it is confirmed within that time after obtaining the opinion of the Advisory Board. As seen above in the present case the confirmation is beyond three months of the order of detention and even the Advisory Boards clearance has been obtained after three months of the actual date of detention. Hence invalidity of sec. 9 (1) declaration rebounds on the validity of sec. 3 (1) detention order and makes it illegal for the respondents to continue the petitioner in detention pursuant to the said order of detection. (The rest of the Judgment is not material for the reports.) petition allowed. .