JUDGMENT 1. - The petitioner was in judicial custody because of a case under the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short NDPS Act). While in custody he was served order dated 19.1.1994 whereby he was directed to be detained and kept in custody under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The grounds of detention were also served on the petitioner on the same day. It was alleged in the grounds that the petitioner has engaged himself in illicit traffic in Narcotic Drugs and Psychotropic Substances and it was necessary to detain him under the Prevention of Illicit Traffic in NDPS Act with a view to preventing him from engaging in the procurement and abetting in the concealment and transportation of the narcotic drugs. The satisfaction of the detaining authority was said to have been based on information supplied by one Raj Kumar Mehta who was caught smuggling contraband goods in the night intervening 5/6.10.1993 in truck No. GJ 9T 5419. The said Raj Kumar Mehta and the driver of the truck were apprehended and heroin was found to be transported in the truck. In statement dated 6.10.93 Raj Kumar Mehta gave an information that petitioner was one of the persons who was purchasing Acetic Anhydride from him. He also informed the police that one Mohd. Hanif Khan of Lahore, Pakistan had also informed him that 50-60 Kg. of heroin powder would be sent by him through the petitioner to Raj Kumar Mehta, and as soon as the substance was arranged the petitioner will contact Raj Kumar Mehta on telephone. On dated 3.10.93 the petitioner rang him up and informed that 60 Kg. of the power had been sent to Delhi for him in a truck with Sumer Khan It was further informed by Raj Kumar Mehta that on 4.10.93 Sumer Khan rang him up and told him that he had brought the truck to Bahadurgarh and Raj Kumar Mehta should meet him at 6.00 p.m. at Idgah. Accordingly, it was alleged that Raj Kumar Mehta met Sumer Khan and told him that the goods sent by the petitioner had been brought by him. When Raj Kumar Mehta and others were apprehended alongwith truck and a Maruti Car, he made a statement that the goods were sent by the petitioner to him. Accordingly, it was alleged that Raj Kumar Mehta met Sumer Khan and told him that the goods sent by the petitioner had been brought by him. When Raj Kumar Mehta and others were apprehended alongwith truck and a Maruti Car, he made a statement that the goods were sent by the petitioner to him. The owner of the truck Sumer Khan also made a statement that the goods were loaded by the petitioner. In his statement Ravinder Mehta nephew of Raj Kumar Mehta also stated that goods belong to the petitioner. Raj Kumar Mehta, Ravinder Mehta and Sumer Khan were taken in custody for offence under the NDPS Act and a complaint was filed against all of them on 4.1.94. The petitioner and one Deen Mohd. were said to be absconding. The petitioner's residential premises were also searched during his abstention, but nothing incriminating was recovered. On the basis of this fact the satisfaction that it was necessary to detain the petitioner in order to prevent him from engaging in smuggling activities was reached. When the petitioner was apprehended in connection with the criminal case registered under the NDPS Act, this order was served on him on 13.10.94. 2. The petitioner has challenged his detention on the ground that the grounds of detention were served on him in English language alongwith translated copy thereof in Hindi, running in 163 pages. According to him the grounds and documents were not read over to him and were not explained to him at the time of service of grounds of detention. This, according to the petitioner seriously prejudiced him and came in the way of preferring an effective representation against the detention. The petitioner further submits that report of abscontion was not supplied to him as a document, but was relied upon by the detaining authority. It was also submitted that the petitioner was said to have been identified by Raj Kumar Mehta on the basis of photographs which was not a proper identification. According to the petitioner, it is a case of wrong identity and he has been made a scape goat for the alleged engagement in smuggling instead of some one else. He further submits that the delay of 10 months in serving of the detention order has not been properly explained and it vitiates the order of detention. It is lastly submitted that Sh. He further submits that the delay of 10 months in serving of the detention order has not been properly explained and it vitiates the order of detention. It is lastly submitted that Sh. Raj Kumar Mehta from whose possession the contraband was found has been released because of quashing of detention order in his case by the High Court of Delhi. 3. The learned counsel for the respondents supported the detention and submitted that the satisfaction of the detaining authority about necessity to detain the petitioner had to be subjective satisfaction was not justiciable. According to the learned counsel for the respondents satisfaction was based, on enough material and could not be interfered with lightly. As regards the delay in serving the order, it was submitted by the learned counsel for the respondents that several attempts were made to serve the order on the petitioner at his normal place of residence, but as he was absconding it was not possible to serve him. The time taken in apprehending the petitioner and serving the detention order is, therefore, properly explained. So far as identification is concerned, the learned counsel for the respondents has submitted that the identification from photographs cannot be said to be impossible and it cannot be said that the petitioner suffered because of mistaken identity. He further submitted that abscontion was a known fact to the petitioner and non supply of a copy of the abscontion report cannot be said to prejudice the petitioner substantially. As regards Raj Kumar Mehta's case, it was contended that he was let off on technical grounds and facts of that case are different from the present case.The learned counsel for the petitioner submitted that his allegation that grounds of detention were not explained to the petitioner has not been countered by affidavit of the person who had served the grounds of detention on the petitioner. Reliance was placed on decision of the Supreme Court in Chaju Ram v. State of Jammu & Kashmir, AIR 1971 SC 263 wherein it was held that it was absolutely necessary that when the Court is dealing with a detenu who cannot read or understand English language or any language at all the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirement of the law which gives a very valuable right to the detenu to make a representation. 4. Reliance was then placed on decision of the Supreme Court in Smt. Raziya Umar Bakshi v. Union of India & Ors., AIR 1980 SC 1751 wherein it was observed that the service of the ground of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie. In cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language which he understands. A bare statement at the stage when Habeas Corpus petition is filed in the Court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation. 5. Decision of the Supreme Court in Mrs. Tsering Dolkar v. The Administrator, Union Territory of Delhi &e Ors., AIR 1987 SC 1192 was then pressed into service for the proposition that return should come either from the detaining authority or a person who was directly connected with the making of the order and not on the basis of the record of the case, in a matter of preventive detention. It was further observed in this case 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 does not satisfy the legal requirement. It was further observed in this case 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 does not satisfy the legal requirement. 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. 6. The decision of the Supreme Court in Yumnam Mangibabu Singh v. State of Manipur & Ors., 1982(3) S.C.C. 18 was pressed into service for the proposition that failure to supply to detenu copies of statements and materials relied on in the grounds of detention would, render the detention illegal. It was also observed in this decision that i if allegations are made in the grounds of detention which are different from the statements made in the counter affidavit by the detaining authority it was a case of non application of mind which would render the detention illegal. 7. The decision of the Supreme Court in Vashisht Narain Karwaria v. State of U.P., AIR 1990 SC 1272 was cited for the proposition that if the averments which are extraneous, touching the character of the detenu, though not referred to in the grounds of detention have been considered, the detention order will be vitiated. 8. The decision of the Supreme Court in Shafiq Ahmed v. Distt. Magistrate, Meerut, AIR 1990 SC 220 , was cited on the ground of delay in serving the order of detention. The observation that the plea that entire police force was extremely busy in controlling law and order situation and, therefore, no attempt had been made for arresting the detenu who was absconding, is not a ground for explaining the delay. However, in this case it has been observed that it is not the law that whenever there is some delay in arresting, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. 9. However, in this case it has been observed that it is not the law that whenever there is some delay in arresting, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. 9. Next case cited was decision of the Supreme Court in T.D. Abdul Rahman v. State of Kerala, AIR 1990 SC 225 , in which it was observed that delay in securing arrest of a detenu makes subjective satisfaction of authority doubtful. It was observed in this case that when there was unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity of detaining the detenu with a view to preventing him from acting in a prejudicial manner. 10. The decision of the Supreme Court in Binod Singh v. Distt. Magistrate, Dhanbad, AIR 1986 SC 2090 was cited for the proposition that when the order of detention is served on a detenu when he was already in jail in respect of other criminal case and there is no indication that before service of order of detention factor or question that detenu might be released or there was possibility of his release was taken into consideration, the detention order was not justified. 11. The decision of the Supreme Court in M. Ahamedkutty v. Union of India, 1990 (2) S.C.C. 1 , was also cited for the proposition that when the detenu is already in jail, grounds of detention must show detaining authority's awareness of that fact, otherwise the order will be vitiated. However, in this case observations have also been made that the delay in execution of detention order caused due to abscontion of the detenu would not vitiate the detention order. This decision of the Supreme Court was followed in Mohd. Umar v. Union of India, a Division Bench decision of this Court reported in 1992 Cr.L.R. (Raj.) 134 . 12. However, in this case observations have also been made that the delay in execution of detention order caused due to abscontion of the detenu would not vitiate the detention order. This decision of the Supreme Court was followed in Mohd. Umar v. Union of India, a Division Bench decision of this Court reported in 1992 Cr.L.R. (Raj.) 134 . 12. The decision of the Supreme Court in Kartar Singh v. State of Punjab, 1994 (2) JT (SC) 423 , was cited in support of the contention that identification on the basis of photographs was not proper or valid. In Paragraphs 389 and 390 of the decision it was observed that it is quite impossible to identify any person on the basis of his photographs especially in the present day when trick photographs are being taken. It was further observed that if the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade gross injustice to the detriment of the persons suspected may result. 13. The learned counsel for the respondents has relied on decision of the Supreme Court in Rajendra Kumar Natwarlal Shah v. State of Gujarat & Ors., 1988 (3) Supreme Court Cases 153 . It was observed in this decision that even unexplained delay in making the order against economic offenders or other anti-social elements (such as those involved in illicit traffic in liquor trade) having large resources and influence, could not be sufficient to vitiate the order if grounds are not stale and nexus between the grounds and the order exists. However, this decision has been explained in Pradeep Nilkanth Paturkar Ors., 1992 (3) JT (SC) 261. In paragraph 12 of that judgment it is observed that each case is to be decided in facts and circumstances appearing in that particular case. The learned counsel for the respondents also relied on decision of the Supreme Court in Syed Farooq Mohd. v. Union of India, 1990 (3) S.S.C. 537 , wherein delay in arresting and serving the order on detenu was held to be explained in the circumstances when the detenu himself was absconding and trying to arrest. The learned counsel for the respondents also relied on decision of the Supreme Court in Syed Farooq Mohd. v. Union of India, 1990 (3) S.S.C. 537 , wherein delay in arresting and serving the order on detenu was held to be explained in the circumstances when the detenu himself was absconding and trying to arrest. It was also observed in this case that when the detention order was passed by Joint Secretary, the counter affidavit filed by under Secretary who was dealing with the papers relating to the particular order of detention and had placed those papers before the Minister concerned, was held to be a proper identification which could be considered in absence of any allegation of malafides or malice against the detaining authority. 14. In the present case, a counter affidavit has been filed by one Shri A.K. Srivastava, Joint Secretary to the Govt, of India, Ministry of Finance, Deptt. of Revenue, on the basis of record. Affidavit of the person who served the grounds of detention and who was supposed to explain the grounds to the detenu has not been filed. The petitioners have filed a copy of the order in Cr. Writ Petition No. 354/94 before Delhi High Court, in which Raj Kumar Mehta the person in whose possession the contraband was found in this case has been released by the Delhi High Court quashing the detention order on the ground that the grounds of detention do not state that the detenu had a right under Article 22(5) of the Constitution of India to make a representation to the said officer. Relying on the decision of the Supreme Court in Kamlesh Kumar Ishwardas Patel v. Union of India & Ors., 1995 (3) JT (SC) 639 , the writ petition was allowed and the detention order was set aside. In the case before us, there is no endorsement on any of the copies of the grounds of detention served on the petitioner that they were explained to him. The petitioner has stated on aoth that he does not understand English and the grounds of detention were served on him in English and were not explained to him by anyone. There is no counter affidavit of the person who actually served the grounds of detention on the petitioner. The petitioner has stated on aoth that he does not understand English and the grounds of detention were served on him in English and were not explained to him by anyone. There is no counter affidavit of the person who actually served the grounds of detention on the petitioner. In these circumstances, it has to be held that the order of detention is vitiated because of non explanation of grounds of detention to the detenu. 15. We also find that the detenu had already been taken in custody under the NDPS Act in which it is not easy to obtain release on bail. In such circumstances, as to why his preventive detention was necessary is not known from the record. In the affidavit in reply filed on behalf of Union of India, it has been admitted that the petitioner was apprehended on 28.9.94 in connection with seizure of 78.600 Kg. of Charas from him and the detention order was amended and served upon him while he was in judicial custody. Despite this, in paragraph 9 of the grounds of detention served upon the petitioner it has been stated that he was also absconding as per the report received from the Collector of Customs & Central Excise, Jaipur and the efforts were being made to apprehend him. In paragraph 14 of the grounds of detention it is further stated that even though prosecution proceedings under the NDPS Act were likely to be initiated against the petitioner in the matter the detaining authority was satisfied that there was compelling necessity in view of the likelihood of his indulging in illicit traffic in narcotic drugs as was evident from the trend of his activities to detain the petitioner under Prevention of Illicit Traffic in NDPS Act, 1988. This clearly shows that the detaining authority was oblivious of the correct position that the petitioner had already been apprehended and was behind the bars. In such a situation the subjective satisfaction about the necessity to detain is clearly vitiated. 16. For the aforesaid reasons, the petition has to be and is hereby allowed. The order of detention dated 19.1.94 passed against the petitioner is quashed. In such a situation the subjective satisfaction about the necessity to detain is clearly vitiated. 16. For the aforesaid reasons, the petition has to be and is hereby allowed. The order of detention dated 19.1.94 passed against the petitioner is quashed. The petitioner shall be free from detention, but his release will depend upon the stage and fate of the case under the NDPS Act in connection with which he was in detention in judicial custody at the time of serving grounds of detention on him. There shall be no order as to costs.Petition allowed. *******