Case: Hasmukh S/O Bhagwanji M. Patel Vs. The State Of Gujarat &amp; Ors

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 facts 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 Khudiram case (supra). 19. 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 there in. 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 communications 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 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 supervision 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 so not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu of 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 so 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 XEROX machine were not available to prepare the copies by mechanical process. 20. The third reason for delay-which is in the nature of an 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 alternative 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. 21. In view of the law enunciated in Khudiram case, ibid, (AIR 1975 SC 550 ), this stand taken by the respondent is utterly unsustainable. 22. 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 detenus 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 communicate to the detenu were very elaborate and full, is not altogether irrelevant. The copies were dispatched 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 lawyers request to interview the detenu, the fact remains that this permission was granted only two days after the dispatch of the detenus application for obtaining copies of the additional documents or materials. In spite of the grant of the detenus request for interview with his lawyer and the supply of the copies, the detenu did not make any representation to the detaining authority or 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 detenus right to make a speedy and effective representation. 23. 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 15/18, 1980, when it was put in a course of communication to the government, while permission for interview with the lawyer was granted on 20 th February. 24. In short, on a consideration of all the circumstances of this particular 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. Contentions 3 and 4 canvassed by Shri Sorabjee need not detain usShri 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 P. M. 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, overruled16. 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, also17. Indeed, the main arguments of the learned counsel are Nos. (1) and (2), that there has been unreasonable delay in supplying the copies of the material documents and statements relied upon or referred to in the grounds of detentionFrom these decisions it is clear that while the expression "grounds" in Article 22(5), and for the matter, in Section 3(3) 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 so further particulars of these basic facts19. 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 there in. There was thus no breach of the first constitutional imperative embodied in Article 22(5)In the instant case, several causes contributed to this "delay". Firstly, this 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 supervision 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 so not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu of 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 so 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 XEROX machine were not available to prepare the copies by mechanical process20. The third reason for delay-which is in the nature of an 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 alternative 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 reasoning21. In view of the law enunciated in Khudiram case, ibid, (AIR 1975 SC 550  ), this stand taken by the respondent is utterly unsustainable22. 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 detenus 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 communicate to the detenu were very elaborate and full, is not altogether irrelevant. The copies were dispatched 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 lawyers request to interview the detenu, the fact remains that this permission was granted only two days after the dispatch of the detenus application for obtaining copies of the additional documents or materials. In spite of the grant of the detenus request for interview with his lawyer and the supply of the copies, the detenu did not make any representation to the detaining authority or 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 detenus right to make a speedy and effective representation24. In short, on a consideration of all the circumstances of this particular 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.