Case: Lallubhai Jogibhai Patel Vs. Union Of India &amp; Ors

By our order dated October 3, 1980, we had allowed this writ petition for the issue of a writ of Habeas Corpus and directed the release of the detenu. We are now giving the reasons in support of that order2. On January 30, 1980, the petitioner, Lallubhai Jogibhai Patel was served with an order of detention, dated January 30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the Government of Gujarat (Home Department) under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA)3. The grounds of detention were also served on him on the same day. The petitioner challenged the order of his detention by Writ Petition No. 449 of 1980 in this Court. That petition was dismissed by this Court by an order dated May 9, 1980, but the reasons for that order were announced later on August 4, 1980. After the dismissal of his petition, he on July 21, 1980, filed additional grounds. He was on July 30, 1980, informed that he may, if so advised, file a fresh petition on those additional grounds. That is how this subsequent petition came to be filed on additional grounds which were not urged in the previous Writ Petition No. 449 of 1980

Court's reasoning:
16. In the previous petition, though it was alleged that there was delay in supply of copies of the documents relied on by the detaining authority in passing the impugned order of detention, no specific ground was taken that documents covering about 236 pages which were relied upon by the detaining authority in passing the order of detentiton, were suppressed and not supplied to the petitioner. Indeed, this is not denied in the counter-affidavit. The petitioner has affirmed in his affidavit that he came to know about the non-supply of these documents from the judgment of the Gujarat High Court subsequent to the dismissal of his earlier petition. This affirmation remains unchallenged17. A catena of decisions of this Court has firmly established the rule that one of the constitutional imperatives embodied in Article 22(5) of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu, as soon as practicable, to enable him to make an effective representation. Recently, in Smt. Icchu Devi Choraria v. Union of India (AIR 1980 SC 1983  ), this Court reiterated the principle as follows"One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention."The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. There are the two outside time limits provided by Section 3, sub-section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of Clause (5) of Art. 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the grounds of violation of Clause (5) of Art. 22 as also on the ground of breach of requirement of S. 3, sub-section (3) of the COFEPOSA Act. Now it is obvious that when Clause (5) of Art, 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in the entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them. It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act."18. In the instant case, the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention. In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt. Icchu Devis case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu19. The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the grounds to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra, 1962 Supp 2 SCR 918 : (AIR 1962 SC 911  ) and Hadibandhu Das v. District Magistrate (AIR 1969 SC 43  ) (ibid)21. Thus, all the three contentions canvassed by the counsel for the petitioner, on merits were sound. The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal.