Case: Ganga Ramchand Bharvani Vs. Under Secretary To The Government Of Maharashtra &amp; Ors

In Writ Petition 434 of 1980, the detenu is one Indrus Ramchand Bharvani; while in Writ Petition 435 of 1980, the detenu is Indrus father, Ram Chand Bharvani. The two detenus Indrus and Ram Chand, along with others, are carrying on business in diamonds and precious stones in partnership under the style of "M/s. Gems Impex Corporation". 35, New Marine Lines, Bombay, since 1971On 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. 1 , 40 , 000 in Indian currency and two gold sovereign coins. On the following day, the Customs raided the residential premises of the son, Indrus, and seized two cameras and three wrist watches worth about Rs. 1.50 lakhsThe 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 would attend daily before the Customs Officers and cooperate in the investigation. This condition was later on relatedOn February 16, 1980, an order of detention, dated February 15, 1980, purporting to have been made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (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 corpusOn 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 rejectedThe 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, 1980On 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.

Reasoning:
Similarly, it is clear from the police records that the representation, dated March 24, 1980, of the detenus was considered by the Adviser to t he Governor of Maharashtra, the State then being under Presidents 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), eitherThe 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 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 promptitudeIt is well settled that "the constitutional imperatives enacted in Article 22(5) 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 a ll 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 v. 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 Khudirams case. There is merit in thise 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 t he copies at that stage would be detrimental to the investigation and public interest. This "so-called" reason also was unsustainable 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. 435/80. 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 detentionAs 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 thee 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 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 w ere 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, i.e., 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 ground s 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 material s and documents to the detenus has vitiated the detention.