tition Nos 434 435 of 1980
Under Article 32 of the Constitution Ramjethmalani H Jagtiani SK Dhingra and LP Daulat for the Petitioner
MN Phadke and MN Shroff for the Respondent State
Abdul Kedar and Miss A Subhashini for the Respondent Union of India
The Judgment of the Court was delivered by SARKARIA J
This judgment deals with two writ petitions for the issue of a writ of habeas corpus which were allowed by us by a short Order dated April 23 1980
In Writ Petition 434 of 1980 the detenu is one Indru s Ramchand Bharvani while in Writ Petition 435 of 1980 the detenu is Indru s father Ram Chand Bharvani
The two detenus Indru s and Ram Chand along with others are carrying on business in diamonds and precious stones in partnership under the style of Ms Gems Impex Corporation
35 New Marine Lines Bombay since 1971
On November 16 1979 the Customs Officers at Bombay raided the premises of the said firm and in the course of the raid seized diamonds and pearls worth about Rs 55 lakhs and also some jewellery and Rs 140000 in Indian currency and two gold sovereign coins
On the following day the Customs raided the residential premises of the son Indru s and seized two cameras and three wrist watches worth about Rs 150 lakhs
The detenus were arrested on November 23 1979 and interrogated
During interrogation the detenus claimed that the gems and other articles seized were not smuggled goods but were local materials locally acquired
They also gave the names of four persons from whom these gems had been acquired
Both the father and the son were arrested and were produced before a Magistrate
They were released on heavy bail subject to the condition that they 346 would attend daily before the Customs Officers and cooperate in the investigation
This condition was later on related
On February 16 1980 an order of detention dated February 15 1980 purporting to have been made under Section 31 of the for short called COFEPOSA by the State Government was served on the detenus
This order was authenticated by the Under Secretary to the State Government
The grounds of detention were also served on the detenus alongwith the order of detention on February 16 1980
On February 18 1980 the wife of the detenu Ram Chand addressed a letter to the first respondent Under Secretary to the Government of Maharashtra requesting him to furnish the detenus with the material relied upon by the detaining authority in the grounds of detention
On March 25 1980 detenu received a letter dated March 14 1980 from the State Government declining the request for supply of copies to the detenu
Prior to that on March 12 1980 the detenus moved this Court by petitions under Article 32 of the Constitution for the issue of a writ of habeas corpus
On March 11 1980 the detenu had also sent a petition through the Central Government complaining of the non supply of copies of the necessary documents
They also made by that petition such representations as they could praying for revocation of the order of their detention
On April 3 1980 the Central Government wrote to the detenus that their request for revocation had been rejected
The Central Government however advised the State Government to furnish the detenus with the copies of the required documents
As a result on April 3 1980 copies were received by the detenus from the State Government under their covering letter dated March 31 1980
On March 24 1980 the detenu also made a representation to the State Government which according to the information furnished at the Bar by Mr Phadke appearing for respondent 1 was declined
Shri Ram Jethmalani appearing for the detenus challenges the detention mainly on these grounds 1 The order of detention purporting to have been signed by Shri Salvi Secretary in the Home Department to the Government of Maharashtra is void because the concerned Minister of the State Government never in fact passed any such order and under the rules of business framed by the Governor under Article 166 of the 347 Constitution Shri Salvi had no authority to pass the order of detention
2 The detaining authority never applied its mind to the earlier statements of four persons from whom the detenus claimed to have acquired the gems in question and in which they had on the basis of documentary evidence supported the contention of the detenus
Further there was no evidence of smuggling in this case at all and the detaining authority committed illegality inasmuch as it relied on presumption under Section 123 of the Customs Act
The use of this presumption was not available to the detaining authority in the exercise of its jurisdiction under COFEPOSA
This shows that there was total non application of mind on the part of the detaining authority
3 The detenus made a written request to the detaining authority on February 18 1980 for supply of the copies of the statements and documents relied upon in the grounds of detention to enable them to make an effective representation
The detaining authority however callously and deliberately refused to supply the copies and conveyed rejection of this request by a letter dated February 14 1980 which in fact was received by the detenus on March 25 1980
It was on the direction of the Central Government that the State Government supplied the copies of some of the statements to the detenus on April 3 1980
The detenu had a constitutional right to be afforded a fair and full opportunity of making an effective representation against his detention
The refusal and the belated supply of these copies had violated that right of the detenu
Even how copies of the earliest statements of the four persons as is apparent from their statements have not been supplied to the detenus
On account of this delay the detention is vitiated
4 The detenu s representation dated March 11 1980 made to the Central Government for revocation of the detention under Section 11 of the COFEPOSA has been wrongly rejected by an unauthorised person
Under the Rules of Business only the Revenue Minister of the Union Government was authorised to deal with and reject that representation
But it seems that the representation was never put up before the Minister
5 The representation dated March 24 1980 made by the detenus to the detaining authority is now reported to have been rejected on April 8 1980
But the question still remains as to who passed the order of rejection
If this representation was rejected by a person other than the Minister who alone was competent to do so under the Maharashtra Rules of Business framed under Article 166 of the Constitution then such rejection would be illegal
348 As regards 1 Shri Phadke appearing for the respondent State has submitted for the perusal of the Court the original record from which it is apparent that the matter was put up by the Secretary
Shri PG Salvi to the Minister concerned and the order of detention was in fact passed by the Minister
The first contention is therefore devoid of merit
Similarly it is clear from the police records that the representation dated March 24 1980 of the detenus was considered by the Adviser to the Governor of Maharashtra the State then being under President s rule
The Adviser was competent under the Rules of Business framed under Article 166 to deal with and reject such representation
We therefore do not find any force in Contention 5 either
Indeed Shri Jethmalani has concentrated mainly on Contention 3
In reply to this contention Shri Phadke submits that the grounds of detention were as elaborate as possible that the substance of the statements of which copies were asked for by the detenus had been incorporated in those grounds  which were served on the detenus that in such a situation the grounds  served on the detenu were more than sufficient to enable him to make an effective representation
It is contended that under the Constitution the detenu has got a right to be furnished only with the grounds of detention that is conclusions drawn from facts and not matters of detail or any other matter which is not referred to or relied upon in the grounds of detention
This according to Shri Phadke was one of the reasons that impelled the State Government to refuse the supply of the copies to the detenu
The second reason according to the counsel was that the supply of the further information would have exposed the informants to bodily harm at the hands of the agents of the detenus that the matter being still under investigation the disclosure at that stage of the information would have adversely affected the investigation and harmed public interest
Let us at the outset be very clear about the precise factual position
The request for copies was made by the detenus on February 18 1980
After a delay of more than three weeks this request was rejected by the State Government and that rejection was communicated to the detenu by letter dated March 14 1980
This letter was received by the detenu only on March 25 1980
This delay in transit also was unusual and inordinate
On March 27 1980 the Central Government advised the State Government to supply the copies
Thereupon it seems that within three days the copies 349 were put in a course of communication to the detenus by the State Government under their covering letter dated March 31 1980 and were actually received by the detenus on April 3 1980
The very fact that soon after the directions of the Central Government copies were ready and despatched to the detenus within three days thereof shows that there was no physical difficulty in preparing and supplying the copies to the detenus with due promptitude
To justify the refusal to supply the copies the stand taken by the State Government in the affidavit filed on their behalf by Shri PG Salvi Secretary to the Government Home Department is as follows a Looking at the exhaustive grounds furnished to the detenu and also the fact that the four persons named therein had denied before the Customs Officers that they sold the diamonds in question or gave them on jhangad  basis was communicated to the detenu it was not necessary to furnish any copies of statements and documents to the detenu to enable him to make an effective representation against his detention
b After the application on behalf of the detenu dated 18th February 1980 was received a communication dated 27th February 1980 was received from the Collector of Customs Preventive Bombay
This letter clearly suggested that copies should not be given Annexure A
 Annexure A to the affidavit is a letter dated February 27 1980 from the Collector of Customs Bombay addressed to the Secretary to the Government of Maharashtra Home Department in reply to the latter s letter dated February 19
In para 2 of this letter the Collector has stated In the case in which the captioned detenus are involved investigation to unearth the conspiracy and find out the other persons involved in it are in progress
It appears from the material under seizure that the case has wide ramifications which need to be investigated from various angles
Hence furnishing copies of the statements and documents at this stage would be detrimental to the investigation in progress from prosecution point of view and might even endanger the life of such of those witnesses who have either deposed against the detenus or provided clues
Under these circumstances furnishing of copies of statements and documents relied upon in the grounds for detaining the aforesaid accused at this stage would not be in public interest
However we have no objection for furnishing copies of the panchanamas
 350 In this affidavit Shri Salvi has not stated that he had personally applied his mind to what the Collector had said in his letter dated February 27 1980 nor has he affirmed that he had intimated to the detenu that the copies had been refused in exercise of the discretion under Article 226 of the Constitution on the ground that the disclosure of that information was in the opinion of the Government not in the public interest
It is well settled that the constitutional imperatives enacted in Article 225 of the Constitution 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
In the context grounds  does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 nor is its connotation restricted to a bare statement of conclusion of fact
Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu
This is the ratio of the decision in Khudiram Das vs The State of West Bengal  Ors to which one of us Sarkaria J was a party
This principle was enunciated after an exhaustive survey of the authorities by Bhagwati J who delivered the opinion of the Court
It is therefore not necessary to burden this judgment by noticing all the other decisions which were examined in that case
The mere fact that the grounds of detention served on the detenu are elaborate does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu
In the instant case the grounds contain only the substance of the statements while the detenu had asked for copies of the full text of those statements
It is submitted by the learned counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds  of detention the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudiram s case
There is merit in this submission
The second reason for non supply of the copies given by Shri Salvi it may be recalled is that the Collector had said that the supply of the copies at that stage would be detrimental to the investigation and public interest
This so called reason also was unsustainable 351 in law
Shri Salvi does not appear to have applied his mind to the question whether or not the supply of these copies would be injurious to public interest
He appears to have mechanically endorsed what had been written to him by the Collector in his letter dated February 27 1980
The detenu had asked for copies of three kinds of documents a His own statements which according to the grounds of detention were in consistent and contradictory to each other b Copies of the statements of his father who is the detenu in Writ Petition No 43580
These statements
also according to the grounds of detention were mutually inconsistent
c The full texts of the statements made by the four persons whose names particulars and substance of their statements were mentioned in the grounds of detention
As regards the first two categories of statements the substance of which was already in the knowledge of the deponents no question of their disclosure being harmful to the public interest could arise
Nor could the supply of the full text of those statements by any stretch of imagination be said to be such that it might endanger the lives of the deponents
Regarding category c the substance of the statements of the four persons mentioned in the grounds of detention had already been disclosed to the detenus
It was therefore not reasonably possible to say that the disclosure of the full texts of their statements would endanger their safety or harm public interest
In the copies of the statements of those persons which was ultimately supplied to the detenus after undue delay on the direction of the Central Government there is a reference to the earlier statements of these four persons in which they had on the basis of some account books and documents supported the contention of the detenus that the latter had acquired the gems in question from those persons
The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements
It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been with held could not by any reckoning expose those persons to any alarm or danger at the hands of the agents or partisans of the detenus
Be that as it may if any part of the statements of those witnesses had to be withheld in public interest the appropriate authority could after due application of its own mind make an order under clause 6 of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest
In the instant case the detaining authority without applying its mind to the nature of the documents the copies of which were asked for by the detenus mechanically 352 refused as desired by the Collector to supply the copies of all the documents
Indeed it was on receiving a direction from the Central Government that the copies were supplied
On account of this chill indifference and arbitrary refusal the detenu who had applied for copies on February 18 1980 could get the same only on March 27 1980 ie after more than one month
Thus there was unreasonable delay of more than a month in supplying the copies to the detenus of the material that had been relied upon or referred to in the grounds of detention
There was thus an infraction of the constitutional imperative that in addition to the supply of the grounds of detention all the basic material relied upon or referred to in those grounds must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest
Of course what is reasonable expedition is a question of fact depending upon the circumstances of the particular case
In the peculiar facts of the instant case we are of opinion that the delay of more than a month in supplying the copies of the basic materials and documents to the detenus has vitiated the detention
It was on this short ground we by our order dated April 23
had allowed the writ petitions and directed the release of the detention
NKA Petition allowed


Summary:
The two detenus were carrying Dn business in diamonds and precious stones
The Customs Officer at Bombay raided their premises and seized a huge quantity of valuables
During interrogation they claimed that some of the articles seized were not smuggled goods but were locally acquired and gave names of four persons from whom they were acquired
The detenus were released on bail by the Magistrate on certain conditions
An order of detention under section 3i of the COFEPOSA 1974 alongwith the grounds of detention was served on the detenus on Feb 16 1980
The wife of the detenu addressed a letter on Feb 18 1980 to the first respondent requesting him to furnish the detenus with the materials relied upon by the detaining authority in the grounds of detention
The detenu received a letter dated March 14 1980 from the State Government on March 25 1980 declining the request for supply of copies
The detenu had also sent a petition through the Central Government on March 11 1980 complaining the non supply of copies of the necessary documents and also prayed for the revocation of the order of detention
On April 3 1980 the Central Government wrote to the detenu that his request for revocation had been rejected The Central Government however advised the State Government to furnish the detenu with the copies of the required documents
As a result the copies were received by the detenu on April 3 1980
The detenu had also made a representation to the State Government on March 24 1980 which according to the information by the counsel of Respondent No 1 was declined
The counsel for the detenus challenged the detention order on the grounds i that the detaining authority callously and deliberately refused to supply the copies of the statements and documents relied upon in the grounds of detention ii the detenu had a constitutional right to be afforded a fair and full opportunity to make an effective representation against their detention and his representation dated March 11 1980 was wrongly rejected by an unauthorised person
The respondent argued that i the substance of the information required had been incorporated in the grounds of detention  which were served on the detenus ii the supply of further information would have exposed the informants to bodily harm and the information would have adversely affected the investigation and harmed public interest
344 Accepting the petition  HELD The very fact that soon after the directions of the Central Government copies were ready and despatched to the detenus within three days thereof shows that there was no physical difficulty in preparing and supplying the copies to the detenus with due promptitude
349A B It is well settled that the constitutional imperatives enacted in Article 225 of the Constitution 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 tho detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order
In the context grounds  does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of section 3 nor is its connotation restricted to a bare statement of conclusion of fact
Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue
350B D The mere fact that the grounds of detention served on the detenu are elaborate does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the ground to the detenu
In the instant case the grounds contain only tho substance of the statements while the detenu had asked for copies of tho full text of those statements
350E F Khudiram Das vs The State of West Bengal  Ors  referred to
The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements
It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been withheld could not by any reckoning expose those persons to any harm or danger at tho hands of the agents or partisans of the detenus
If any part of the statements of those witnesses had to be withheld in public interest the appropriate authority could after due application of its mind make an order under clause 6 of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest
351 F G The detaining authority without applying its mind to the nature of the documents the copies of which were asked for by the detenus mechanically refused as desired by the Collector to supply the copies of all the documents
It was on receiving a direction from the Central Government that the copies were supplied
On account of this chill indifference and arbitrary refusal the detenu who had applied for copies on Feb 18 1980 could get the same only on March 27 1980 ie after more than one month
Thus there was unreasonable delay of more than a month in supplying the copies to the detenus of the material that had been relied upon or referred to in the grounds  of detention
There was thus an infraction of the constitutional imperative that in addition to the supply of the grounds of detention all the basic material relied upon or referred to in those grounds  must be supplied to the detenu with reasonable expedition 345 to enable him to make a full and effective representation at the earliest
What is reasonable  expedition is a question of fact depending upon the circumstances of the particular case
351 H 352 A C In the peculiar facts of the instant case the delay of more than a month in supplying the copies of the basic materials and documents to the detenus has vitiated the detention
352 C D