ition No 449 of 1980
Under Article 32 of the Constitution Soli J Sorabjee MG Karmali Vineet Kumar and Mukul Mudgal for the Petitioner
JL Nain and MN Shroff for the Respondent
The Judgment of the Court Was delivered by SARKARIA J
This is a petition under Article 32 of the Constitution for the issuance of a writ of habeas corpus
On January 31 1980 an order of detention dated January 30 1980 under Section 3 1 of the for short called the COFEPOSA issued by the second respondent Shri PM Shah Deputy Secretary to the Government of Gujarat Home Department was served on Lallu Jogi Patel hereinafter referred to as the detenu 
The Order was expressed in the name of the Governor of Gujarat
On the same date January 31 1980 the grounds of detention were served on the detenu
356 The grounds of detention served on the detenu are very elaborate and detailed
They also contain the introductory background including the history of the detenu
It is stated herein that the detenu was previously detained by an order dated September 1974 of the Government of India under Section 3 of the Maintenance of Internal Security Act MISA
On the repeal of MISA and the commencement of COFEPOSA a fresh order dated December 19 1974 under the COFEPOSA was served on the detenu
The detenu s writ petition for a writ of habeas corpus was dismissed by the High Court of Gujarat on May 6 1976 in view of the Presidential Order dated June 27 1975 made under Article 3591 of the Constitution which had suspended the rights under Articles 14 21 and 22 of the Constitution
The detenu was however released on March 21 1977
As stated in the grounds  his activities were kept under surveillance by the Customs Department
In or about July 1979 the detenu attempted to smuggle gold but he was not successful
Calls booked by the detenu to various telephone numbers of other suspected smugglers were however detected
On November 21 1979 the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist watches and silver out of the country to Dubai In pursuance of that conspiracy on October 9 1979 the detenu and the said Umar Bakshi smuggled about 45 slabs of silver in the vessel Saraswati Prasad registered in the name of Ravia Kalan of Daman
On November 30 1979 23 slabs of silver weighing in aggregate 692527 kgs
valued at Rs 1565111 were seized by the officers of the Collectorate of Central Excise and Customs from a truck which was intercepted near village Pipodara
The occupants of the motor truck disclosed their identities as 1 Kailashchandra Shantilal Jain
2 Mohmed Hussain Hanif Mohmed Pathan the driver and 3 Babukhan Istiyarkhan Ahmed Pathan the cleaner
all of Udaipur
The statements of these persons recorded under Section 108 of the Customs Act and the other circumstantial evidence collected revealed that the detenu was engineering the whole process of attempting to smuggle the silver out of India in conspiracy with Umar Bakshi and others
In para 35 of the grounds  it is mentioned The detaining authority viz the State Government considered it against the public interest to disclose the sources of the intelligence referred in paragraphs 3 4 6 and 30 and 357 further considered it against public interest to disclose further facts contained in various intelligence reports referred to in the aforesaid paragraphs 3 4 6 and 30
 On February 15 1980 the detenu sent a letter
through the Superintendent Jail requesting for the supply of copies of statements and documents relied upon in the grounds of detention
According to the counter filed by Shri Shah Deputy Secretary to Government of Gujarat this letter was received by the State Government on February 18 1980
The State Government then on February 22 addressed a letter to the Sponsoring Authority Collector of Customs
Ahmedabad enquiring whether furnishing copies of documents would not prejudice public interest
On February 25 1980 the Collector wrote back to the State Government that it was not necessary to supply the copies of the statements and documents asked for by the detenu as the grounds of detention served on him were quite elaborate to enable the detenu to make effective representation
The Collector sent copies of the required statements to the State Government and the latter received the same on February 29 1980
On March 4 1980 the second respondent Deputy Secretary Home Department arranged personal discussion with the Collector to solicit his considered view
As a result on March 5 1980 the Collector sent a letter to the State Government stating that he had no objection to furnish the detenu with relevant documents
As per letter dated March 7 1980 the Section Officer of the Home Department sent the relevant documents running into 461 pages to the detenu through the Superintendent District Prison Rajkot by registered acknowledgement due
The said documents were received by the detenu on March 11 1980 at Rajkot
Thus after excluding the time taken in transit there was a delay of 17 days in furnishing copies to the detenu
Earlier on February 1 1980 Shri PK Nair Advocate had addressed a letter to the Chief Minister of Gujarat asking for permission for an interview with the detenu to seek instructions from him for drafting his representation
On February 12 1980 the Secretary to Chief Minister wrote in reply to the Advocate that his request for having an interview with the detenu was being looked into by Government with the Home Department
This letter of the Advocate according to the counter affidavit filed by Shri Shah was received by him on February 30 1980 through the Chief Minister s 358 Secretariat
On February 20 1980 the State Government informed the Advocate that his request for interview with the detenu had been granted
Mr Soli Sorabji appearing for the petitioner challenges the validity of the detention of these grounds 1 There has been impermissible delay in furnishing copies of the documents and statements relied upon in the grounds of detention
2 There was unreasonable delay of about 20 days in granting interview to the detenu with his lawyer as a result of which the statutory right of the detenu under rule 14 xii of the Gujarat Condition of Detention COFEPOSA Order 1975 has been rendered meaningless
The combined effect of these undue delays Nos 1 and 2 is that the detenu has been denied his constitutional right to be afforded the earliest opportunity of making an effective representation against his detention and thus there has been a violation of Articles 21 and 22 5 of the Constitution
In support of Nos
1 and 2 the learned counsel has referred to Khudi Ram Das Jayanarayan Sukul vs State of West Bengal Madhav Hayawadanrao Hoskot vs State of Maharashtra and Ramchandra A Kamat vs Union of India  Ors
3 The counter affidavit filed in response to the rule nisi issued by this Court has not been affirmed by the detaining authority but by another officer on the basis of information derived from the record only
4 Irrelevant matter has been taken into consideration
In reply to these contentions Mr Nain appearing for the respondent State has urged these points a i The grounds of detention  which were served on the detenu simultaneously with the order of detention were elaborate and full and had apprised the detenu of all the information necessary for making an effective representation against his detention Grounds of detention as held by this Court in State of Bombay vs Atma Ram Sridhar Vaidya in Article 22 5 means only conclusions of facts  and not all the evidence or factual details considered by the 359 detaining authority in passing the impugned order
What Article 22 5 obligates is that the grounds of detention  should be communicated to the detenu at the earliest
This constitutional obligation was fully discharged when the elaborate grounds of detention containing the substance of all the material facts were served on the detenu
ii In these circumstances the detenu had no further constitutional right to be supplied with the details and sources of the information on which the order of detention was passed
Reference has also been made to Vakil Singh vs State of Jammu  Kashmir
b The detenu as is apparent from the grounds of detention is engaged in smuggling activity in a big way having international ramifications
Investigations were going on to unravel the entire gang of international smugglers in league with the detenu
The detaining authority had therefore to consider as to whether the disclosure of this information asked for by the detenu at that stage would not be detrimental to public interest and if so whether it would be in the public interest to invoke Article 22 6 of the Constitution to withhold the copies asked for by the detenu for some time
For this important purpose consultation with the Collector who was supervising the investigations was necessary
The documents of which the copies were asked for also run into several hundred pages
If these inter departmental consultations preparation and despatch of the copies took 17 days in a case where the detenu has been indulging in smuggling activity of this magnitude the delay in supplying the copies was neither inordinate nor unreasonable
Reference has been made to the counter affidavit filed on behalf of respondents 1 and 2
c The period of delay in allowing the detenu to interview his lawyer was of no consequence
First Article 22 in terms denies to the detenu the right to consult a lawyer or to be defended by a counsel of his choice
This concession has however been conceded by the State Government under rule 14 xii and there also it is not an indefeasible right as it is contingent upon the grant of permission by the State Government
There is a distinction between a constitutional right and a defeasible statutory right
Delay in grant of the interview with the lawyer in no way affects the constitutional right of the detenu to make a representation
Secondly no written request for supply of copies of the documents prior to February 18 1980 had been received from the detenu and the lawyer s request for interview with the detenu was granted on 360 February 20 1980
The time taken for considering the lawyer s request for interview cannot be combined with or added to the period taken for supply of the copies
d Lastly the delay in supply of copies or in granting the interview with the lawyer did not in any way prejudice the detenu
The copies were demanded and the interview with the lawyer were sought professing that these were required for the purpose of making an effective representation
But this professed purpose was merely a pretence because the copies were neither necessary nor intended to be used for any such purpose
Despite the grant of these twin requests and the despatch of the copies on March 7 and their receipt on March 17 the detenu never filed any representation although the Advisory Board was to meet shortly thereafter on March 24 1980
Instead he rushed to this Court and filed the writ petition on March 17 1980
This conduct of the detenu is not making any representation despite opportunity shows that no prejudice has been caused to him merely by the fact that the copies were despatched to him after 17 days of receiving his request
e Under the statute even grounds of detention can be communicated to the detenu in exceptional cases within 15 days of the detention
If the grounds communicated within the prescribed period are elaborate then supply of further particular is only two days after the expiry of the fifteen days period prescribed for communicating the grounds in exceptional cases
cannot be said to be unreasonably belated
Contentions 3 and 4 canvassed by Shri Sorabji need not detain us
Shri Nain has produced for the perusal of the Court the original official record from which it is clear that the detention order was passed by the Home Minister
It was authenticated and issued under the Rules of Business by Shri PM Shah Deputy Secretary
Home Department Special who has sworn the counter affidavit in this case
No personal mala fides are alleged against the Minister
It was therefore
not necessary for the Minister to file the counter himself
Contention 3 is therefore overruled
What the learned counsel characterises as irrelevant matter incorporated in the grounds of detention are really introductory facts or history of the case
We therefore negative contention 4 also
Indeed the main arguments of the learned counsel are Nos
1 and 2 that there has been unreasonable delay in supplying the 361 copies of the material documents and statements relied upon or referred to in the grounds of detention
To appreciate these contentions it is necessary to have a clear idea of the import and scope of the expression grounds  used in the context of detention  in Article 22 5 of the Constitution and in sub section 3 of Section 3 of COFEPOSA
A democratic constitution is not to be interpreted merely from a lexicographer s angle but with the realisation that it is an embodiment of the living thoughts and aspirations of a free people
A constitution said Benjamin Cardozo states or ought to state not rules for the passing hour but principles for an expanding future
The concept of grounds therefore has to receive an interpretation which will keep it meaningfully in tune with the contemporary notions of liberty and fundamental freedom guaranteed in Articles 19 1 21 and 22 of the Constitution
It is not necessary to notice all the numerous cases in which this expression in the context of Article 22 5 has come up for consideration
It will suffice to make a brief reference to a few of them which are in point
In Golam vs The State of West Bengal this Court held that in the context of Article 22 5 grounds  does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act nor is its connotation restricted to a bare statement of conclusions of fact
It means something more
That something  is the factual constituent of the grounds  on which the subjective satisfaction of the authority is based
This decision was approved by a larger Bench in Khudaram Das vs West Bengal ibid wherein Bhagwati J speaking for the Court said The constitutional imperatives enacted in Article 22 5 are two fold i the detaining authority must as soon as may be that is as soon as practicable after the detention communicate to the detenu the grounds on which the order has been made and ii the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order
These are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person
It was explained that grounds  under Article 22 S mean all the basic facts and materials on which the order of detention is based therefore all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu
It was further clarified that such basic facts and materials would be different from other particulars spoken of in sub section 3 of Section 3 of MISA 362 Earlier in Prabhu Dayal Deorah etc
vs District Magistrate Kamrup  Ors Mathew J speaking for the majority elucidated the position thus The detenu has a right under Article 22 5 of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention
That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of detention order
 From these decisions it is clear that while the expression grounds in Article 22 IS and for that matter in Section 3 3 of the COFEPOSA includes not only conclusions of fact but also all tho basic facts  on which those conclusions are founded they are different from subsidiary facts or further particulars of the basic facts
The distinction between basic facts which are essential factual constituents of the grounds and their further particulars or subsidiary details is important
While the basic facts being integral part of the grounds must according to Section 3 3 of COFEPOSA be communicated to the detenu as soon as may be after the detention ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention further particulars of those grounds in compliance with the second constitutional imperative spelled out from Article 22 S in Khudi Ram s case are required to be communicated to the detenu as soon as may be practicable with reasonable expedition
It follows that if in a case the so called grounds of detention communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded and this deficiency is not made good and communicated to the detenu within the period specified in Section 3 3 the omission will be fatal to the validity of the detention
however the grounds communicated are elaborate and contain all the basic facts but are not comprehensive enough to cover all the details or particulars of the basic facts such particulars also must be supplied to the detenu if asked for by him with reasonable expedition within a reasonable time
What is  reasonable time conforming with reasonable expedition required for the supply of such details or further particulars is a question of fact depending upon the facts and circumstances of the particular case
In the circumstances of a given case if the time taken for supply of suck additional particulars exceeds marginally the maximum fixed by the statute for communication of the grounds 363 it may still be regarded reasonable
while in the Pacts of another A case even a delay which does not exceed 15 days may be unjustified and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram s case Supra
In the instant case the grounds supplied to the detenu were elaborate and full and contained all the basic facts although they did not set out all the details or particulars of those basic facts relied upon or referred to therein
There was thus no breach of the first constitutional imperative embodied in Article 22 5
The short question therefore for consideration is Was the period of 17 days exclusive of the time taken for communication in transit for the supply of the further particulars of the basic facts to the detenu unreasonable in the circumstances of the case  In the instant case several causes contributed to this delay
Firstly this is a case in which the detenu was according to the allegations in the grounds of detention and the averments in the counter affidavit filed by Shri P M Shah Deputy Secretary Home to the Government of Gujarat indulging in smuggling out silver from India and exporting it to the gulf countries in a big way
This silver which was the subject of this illegal activity was of huge value
The smuggling activity attributed to the detenu had international ramifications
The Collector of Customs was supervising the investigations that were going on at several places in several countries to unearth and detect all the persons who were involved in this large scale organised smuggling of international dimensions
It was therefore not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies at that stage on the investigations which were still going on
Such a query from or consultations with the Collector was necessary to enable the detaining authority to make up its mind as to whether or not it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu or any part thereof under Article 22 6
Indeed at one stage the Collector wrote back that the supply of the copies at that stage would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants
The Government therefore summoned the Collector and discussed the matter at a high level meeting and then directed the Collector to supply the copies
Secondly the documents or statements of which copies were sought covered more than 461 pages
Preparation of such a bulky record could be time consuming if the aid of some appliance like the ZEROX machine were not available to prepare the copies by mechanical process
364 The third reason for delay which is in the nature of and explanation given by the respondent is that it has not caused any prejudice to the right of the detenu to make an effective representation since the grounds of detention communicated to him were elaborate and full
Indeed in the counter affidavit an alter native stand taken by the respondent is that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate
Shri Nain has also tried to support this reasoning
In view of the law enunciated in Khudi Ram s case ibid this stand taken by the respondent is utterly unsustainable
Be that as it may in the totality of the circumstances of this present case we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenu s right to make an effective representation
In considering the reasonableness or otherwise of the time taken in supplying the copies the circumstance that the grounds of detention already communicated to the detenu were very elaborate and full is not altogether irrelevant
The copies were despatched to the detenu by registered post on March 7 1980 and were received by him on March 11 1980 at Rajkot
The Advisory Board was scheduled to meet shortly thereafter on March 24 1980
The detenu was also allowed by an order dated February 20 1980 to be interviewed by his lawyer
Although the Government took more than two weeks to consider the lawyer s request to interview the detenu the fact remains that this permission was granted only two days after the despatch of the detenu s application for obtaining copies of the additional documents or materials
In spite of the grant of the detenu s lawyer s request for interview with his client and the supply of the copies the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board
This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies has in fact prejudiced the detenu s right to make a speedy and effective representation
According to the petitioner his lawyer by a letter dated February 1 1980 sought an interview to enable him to draft his representation
But no application for obtaining copies of the material documents had been made by the detenu till February 15118 1980 when it was put in a course of communication to the 365 Government while permission for interview with the lawyer was granted on the 20th February
In short on a consideration of all the circumstance of this particulars case we are of opinion that the delay of 17 days in question was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22 5 of the Constitution
These then are the reasons in support of our order dated May 9 1980 by which we dismissed the writ petition
SR Petition dismissed


Summary:
Lallu Jogi Patel was detained on January 31 1980 by an order of detention dated January 30 1980 passed by the Minister of Home Affairs Gujarat State under Section 31 of the and issued by the second respondent a Deputy Secretary of Government of Gujarat Home Department
The order was expressed in the name of the Governor of Gujarat
On the same date the grounds of detention were served on the detenu
The detenu prayed for copies of the statements and documents relied upon in the grounds of detention on February 15 1980
On February 1 1980 the detenu s Advocate sought permission for an interview with the detenu to seek instructions from him for drafting his representation
On February 20 1980 the State Government informed the Advocate that his request for interview with the detenu had been granted
After consulting the Collector of Customs the Home Department also supplied to the detenu the documents running into 461 pages on March 7 1980 which were actually received by the detenu on March 11 1980
that is after a delay of 17 days excluding the time taken in transit etc
Dismissing the petition the Court  HELD 1 In view of the fact that the original detention order was in fact passed by the Home Minister against whom no personal mala fides are alleged and the said order was authenticated and issued under the Rules of Business by the Deputy Secretary Home Department Special the latter s swearing the counter affidavit in the case is valid
360 F G 2 The introductory facts or history of the case incorporated in the grounds of detention cannot be considered as irrelevant matters which went into the consideration of the detention order
360G H 3 A democratic Constitution is not to be interpreted merely from a lexicographer s angle but with a realisation that it is an embodiment of the living thoughts and aspirations of a free people
The concept of grounds used in the context of detention in Article 225 of the Constitution and in sub 354 section 3 of Section 3 of COFEPOSA therefore has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions of liberty and fundamental freedoms guaranteed in Article 191 21 and 22 of the Constitution
361 A C 4 In Khudiram Das vs West Bengal the Supreme Court held that the constitutional imperatives enacted in Article 225 are two fold i The detaining authority must as soon as may be that is as soon as practicable after
the detention communicate to the detenu the grounds on which the order has been made ii the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order and that these two are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person the grounds under Article 225 mean all the basic facts and materials on which the order of detention is based therefore all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue
361 D G 5 While the expression grounds in Article 225 and for that matter in Section 33 of the COFEPOSA includes not only conclusions of fact but also all the basic facts on which those conclusions are founded they are different from subsidiary facts or further particulars or the basic facts
The distinction between basic facts which are essential factual constituents of the grounds and their further particulars or subsidiary details is important
While the basic facts being integral part of the grounds must according to Section 33 of COFEPOSA be communicated to the detenu as soon as may be after the detention ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention further particulars of those grounds in compliance with the second constitutional imperative spelled out from Article 225 in Khudi Ram s case are required to be communicated to the detenu
as soon as may be practicable with reasonable expedition
It follows that it in a case the so called grounds of detention communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded and this deficiency is not made good and communicated to the detenue within the period specified in Section 33 the omission will be fatal to the validity of the detention
If however the grounds communicated are elaborate and contain all the basic facts but are not comprehensive enough to cover all the details or particulars of the basic facts such particulars also must be supplied to the detenu if asked for by him with reasonable expedition within a reasonable time
What is reasonable time conforming with reasonable expedition required for the supply of such details or further particulars is a question of fact depending upon the facts and circumstances of the particular case
In the circumstances of a given case if the time taken for supply of such additional particulars exceeds marginally the maximum fixed by the statute for communication of the grounds it may still be regarded reasonable while in the tacts of another case even a delay which does not exceed 15 days may be unjustified and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram s case
362 C H 363 A In the instant case there is no breach of the first constitutional imperative embodied in Article 225
The grounds supplied to the detenu were elaborate and full and contained all the basic facts although they did not set out all the details or particulars of those basic facts relied upon or referred to therein
363 A B 355 6 In the totality of the circumstances of the present case the period of 17 days taken in considering the supply of the copies was not an unreasonably long period which could amount to a denial of the detenu s right to make an effective representation and therefore infraction of the constitutional imperatives in Article 225 of the Constitution
Firstly the detenu was indulging in smuggling out silver from India and exporting it to the Gulf countries in a big way and the smuggling activity attributed to the detenu had international ramifications resulting in consultation with several authorities supervising the Customs
The Government had to consult the Collector of Customs and even summon and discuss in a high level meeting before ordering the supply of the copies
Secondly the documents and statements of which the copies were sought covered more than 461 pages
Preparation of such a bulky record could be time consuming if the aid of some appliance like the Zerox machine were not available to prepare the copies by mechanical process
Thirdly in spite of the grant of the request of the detenu s lawyer to interview the former and the supply of the copies the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board which is a relevant circumstance to be taken into account for determining whether the delay in supplying the copies has in fact prejudiced the detenu s right to make a speedy and effective representation
363 C E H 364 A D G Khudi Ram vs State of West Bengal   Golam vs The State of West Bengal WP 270 of 1974 dated 12 9 74 Prabhu Dayal Deorah etc
vs District Magistrate
Kamrup  Ors  referred to