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

2. On January 31, 1980, an order of detention dated January 30, 1980, under Section 3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1971 (for Short, called the COFEPOSA) issued by the second respondent Shri P. M. 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 detenu3. 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 detenu4. The detenus 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 359(1) 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, detected5. On November 21, 1979, the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist-watches and sliver 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 on Deman6. On November 30, 1979, 23 slabs of silver weighing, in aggregate, 692-527 kgs. valued a Rs. 15, 65, 111/-, 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 identified as (1) Kailashchandra Shantilal Jain, (2) Mohmed Hussain Hanif Mohmed Pathan, the drive, and (3) Bahukhan 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 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"7. On February 15, 1980, the detenu sent a letter, through the Superintendent of Jail, requesting for the supply of copies of statements and documents relief upon the grounds of detention8. 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 interest9. On February 25, 1980, the Collector wrote back to the State Government that it was to necessary to supply the copies of the statement and documents asked for by the detenu, "as the grounds of detention severed on him were quite elaborate to enable the detenu to make effective representation". The Collector sent copies of the required statement to the State Government and the latter received the same on February 29, 198010. 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 documents11. 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 acknowledgment 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 detenu12. Earlier, on February 1, 1980 Shri P. K. 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 in the Home Department. This letter of the advocate, according to the counter-affidavit filed by Shri Shah, was received by him on February 30 (sic), 1980 through the Chief Ministers Secretariat. On February 20, 1980, the State government informed the advocate that his request for interview with the detenu had been granted.

Reasoning: 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.