IBRAHIM AHMAD BATTI

STATE OF GUJARAT & OTHERS

October 13, 1982

[V.0. TULZAPURKAR AND R.B. MISHRA, JJ.)

Constitution of India, 1950, Article 22(5) and Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1941- Meaning and import of-Failure to supply the translations of the documents etc. relied on, in the language 0 knOwn to the detenu and/or delayed-Supply without communication of ihe reasons recorded for the delay Would b'e a clear violation of the coustitutionai mandate of Article 22(5).

On April 15, 1982, the Customs Officers raided bungalow No. 3, Sweta Park SoCiety, Bhuderpura, Ambawadl, Ahmedabad,' allegedly belonging to the petitioner-detenu, but standing in the name of Rekhaben Champaklal Seth and during the search that followed in the presence of the p'etitioner and one Hasmukh Prabhudas Sharm~ contraband ·Of several items were recovered arid seized under the reasonable 1Jelief that they were smuggled goods liable to be oonsficated under the Customs Act, 1962. This seizure was followed by recording of confessional statements of te petitioner and his co-conspirtors. During the foliow up action certain other premises were searcbCd and further

contrabaitd was seized. By an order dated April 19, 1982, issued by the State of Gujarat under Section 3(1) of COFEPOSA, the petitioner was detaioeQ in Abmedabad Central Prison, with a view to preser.ving him from keeping and transporting smuggled goods.· Grounds of detention dated April 23, 1982 aloogwith copies of statements and documents relied upon by the detaining authority were served on the petitioner. The petitioner's represCntation to the Advisory Board was accepted, since the failure on the part of the detaining authority to supply the translations in Urdu of the grounds and documents relied upon,• amounted to a clear "'.iolation of the constitutional mandate of Article 22(5) vitiating the order of detention. Consequently, the order of detention was revoked by the State under section 8(f) of COFEPOSA and directed his release forthwith, unless he was required to be retained in custody under orders of any competent Court.gr Law.

Hoever, on the same day i.e. on lst of July 1982, the State Government passed another order of detention against the petitioner under section 3(1) of the COFEPOSA and served it on him on 2nd of July 1982 whilst he was in judicial custody under Court's Order in two cases, one under the Arms Act and another under the Foreigrier's Act. This detention order was also passed with a' view to preventing him from smuggling goods and engaging himself in transporting smuggled goods and keeping smuggled goods."

Grunds of detention tunning into 32 typed pages in.nglish together with copies

IBRAHIM V. GUJARAT 541

of all the statements arid documents referred to and relied upon in the grounds, in regional language, were served upon the petitioner on 7th July, 1982. Urdu. translations of only some .of these docuoients were supplied on 15th of July 1982 without furnishing the recorded reasons for the delay in supplying them. The petitioner's representations made tbrollgb his counsel ori '5th August 1982, having been rejected on 13th August, 1982 the petitioner has filed this writ petition under Article 32 of the Constitution, contending that , non-supply of Urdu trRnslations of some of the statements and documents relied upon by the detaining authority.

In spite of the revocation. of an earlier order on this ground, and the non-communication of the reasons for the delayed supply of Urdu translations in respect of the rest of the documents, have resulted in violation of Article 22(5) of the Constitution read with section 3(3) of the

COFEPOSA. '

~ Aliowing ihe Petition, the Court,

HELD : Jn section 3(3) of the COFEPOSA, the concept of "reasonable ' time" 1 or "the shortest possible time" or reasonably requisite time", predicated by the expression "as soon as may be" bas beCn retained bt it is only with a view to.meet the practical exigeticies of administrative affairs that the. detainiDg authority is permitted to communicate the grounds of detention, not latter' thin 5 days ordinarily, and not later than 15 days, if there are exceptional circumtanccs and that too with a safeguard of reasons being recorded in writing.

In other words, section 3(3) provideS 1 for the outer limits and the grounds of detention must, therefore, be furnished to the detenu ortinarily within 5 days from tlle date of detention bui in exceptional Circumstances and for reasons to \. be recorded in writing, the time may stand extended but in any event it cannot

be later than 15 days from the date of detention. Unless the first duty imposed upon the detaining authority under Article 22(5) is discharged within the / E prescribed time, it would Dot be possible for the detenu to exercise his right of 'o; iaking .a representation against bis detention-a corresponding right arising from the second duty cast on the detaining authority. amely, to afford the detenu 1he earliest opportunity of making Such representation against bis detention. (549 D-H, 550 A-Bl

Abdul Jabbar Butt v_.

State of Jammu & Kashmir, (1957] S.C.R. 51; A.K. Ray's case (198Z] I s.c.i:;. Z71, referred to.

2:1 The principle clearly enunciated in Smt lcchu Devi's case[l980] 4 S.C.C., 53 is that copies of all documents, statemants and materials referred t9 or relied upon in the grounds of detention (meaning thereby which has influenced the mind of the detaining authority in arriving at its subjective satisfaction about

the necessity to detain the detenu) must be communicate~ to him within the G time prescribed under section 3(3) of the COFEPOSA and that without this the right to make representation cannot be meaningfully exercised. [552 D-E]

2:2 From the decided cases, it would follow that if the grounds together with copies of all documents, statements and other materials icorrorated in H the gro_unds by reference on which the detaining authority ha's relied are required

542 sUJ>llllMll COlrltT Rlll>OltTS

(1983) 1 S.C.R

to be communicated to the detenu uner Art. 22(5) rc2d ilh tclif'n ~(3) of COFEPOSA within the prescribed time, then, not n:erely Jhe grcunds or detention but also the copies of all incorporated documents, statements and other materials must be supplied to the detenu in a script or language which he understands and failure to do so would amount to a breach of the mandate contained in Article 22(5) read wit~ section 3(3) ofCOFEPOSA. [553 C-D]

La//ubhai Jogibhai Patel's case [1981] 2 S.C.R. 427, Hariklsan's case [1962] Supp. 2 S.C.R. 918, Hadlba•dhu Das's case [1969) 1. S.C.R. 227, Smt. Raz/a Umar Bakshi's case [1980] Supp sec 195; Kamala K••"•lal Klrushala•i's COJe [l98l] lS.C.C. 748 and Sunll Dutt's case A.l.R. 1982 SC l3 .• referred to.

2:3 Not merely the exceptional circumstances must exist justifying the delay in communicating to the detenu all the material'i relied upon, but these should be communicated to the detcnu to enable him io make an effectfve representation. [554 G-HJ

Blshwa Mohan Kumar Sinha v. State of Bihar & Ors I.L.R. (1974) 53 Pat. 884; Blshawanath Prasad .Keshari v. State of Blhar & prs. I.L.R. (1975) 54 Pat. 72; approved.

3:1. Preventive detention is a serious invasion of Personal Hberty and the normal methods open to a person charged with com.mission of any offence to" disprove the Charge or tO prove his innocence at the trial are not available to the person preventively•detairled and, therefore, in preventive, detention juriS. prudence whatever little safeguards the constitu'tion and the enactments authorising. such" de_tention provide assume utmost importance and must be strictly adherCd to and one of such safeguards is that unless exceptional Circum- . /stances really obtain the delay in supply of grourids of d_etention as also thC

documents and statements incorporated therein by reference beyond the normal period of five day~ would be fatal. [556 P.FJ

Jn all the faCts and circumstances no exceptional circtimstances obtained in the case justifying the delay and as such the same constitutes a breach of the constituti9nal as well as legislative mandate. (1) Upon revocation of th~ earlier detention order on 1st of July 1982, there was no urgency to issue the impgn'ed . order on the same day or serve it on the detenu on the following day since he was already in judicial custody in other two cases, one under the Arms Act and the other under the Foreigners Act jand no bail having been granted .to him, there was no fear of his absconding from Ablnedabad, there bCing no urgency the detaining, authority could have kept <1-ll the material ready in Unlu and supplied the same to him immediately after detaining him second time; (2) In tlic absence of information as, to the number of UrOu traiisJators put on the job_ except vaguely stating "handful translators were available" and the reasons for not entrusting to others who do not observe Ramzan. it is difficult to sw:illow

the proposition that the State Government (with all its power and resources could not find req'uisite number of qualified persons to do .that job so as to \ make Urdu translations of.the concerned douments and statements available 'o the detenu within the normal period of five days; and (iii) With the previous

~.·

IBRAHIM ' GUJARAT 543

detention order having bceri vitiated on the very ground, greater vlgil.ance and A expedition was expected from the detaining authority. [556 G-H, 557A-El

1 3:2. It is true that neither Article 22(5) of the Constitution nor dries the COFEPOSA contain any provision which casts , a duty ''upon the detaining. authority to . inform the detenu anything about the exceptionaJ circumstantes due to which delay may occur Or about the fact whether reasons have been recorded in 'writing or not for the delay.

It is also true that the court wUJ,

B - of course, go into and satisfy itself :about these mafters . when any issue in that behalf is raise4 before it. [557 H, 558 A]

3:3. Under the scheme i of COFEPOSA, against his detention the detenu has a right to make a representation to an aU.thority as well as to the Advisory . Board-and such' representation against .bis detention Can be on merits of the

grollnds of detentio_n as alsb for the failure on the part of the detaining~ autborl.ty to observe strictly the . requisite safegua.rds and on satisfying the _superior authority or the Advisory. Board on -either count he. is entitld to have1his 'detention_ revoked or .quashed. - In other words, the detenu iS entitled to satify

either the superior autbOrity oi' the Advisory Board that the delay that has occurred in the supply of requisite materiai" to him was not juStified because exceptional circumstances did not exist or those put forward were unreal or invalid. Obviously, the detenu;:will not "be ina position 1 to do soJf the alleged exceptional circumstances are not communicated .tohim-_ Therefo.re, duty to inform the detenu about the existence of xceptional circumstances and what they were for delay in supplying grounds of detention and/of the documents and statements inCorporated therein arises by neCessafy implication and! flows from the right which is conferred uponthe detenu to make representation against the detention. The impugned failure in this case constitutes anothe_r breach of the safeguard contained •in; Article i2(5)-0f the Constitution read With section .3(3)' of COFEPOSA and vitiates the cOntinued detention of the petitioner.

[558 BG, 559 AB]

(4) ~9nsiJpply of Urd~ translalion Of the documents bas clearly pre judiced th~ petitioner in the exercise of his riij; ht , to make an effective represeDta.

ti on against bis detention and hence the safeguard contained in Article 22(5) is clearlf violated. The petitioner is a Pakistani national alld Urdu seems to be his mother tongue and a .little knowledge of English 1:figiires, ! ability.' t~ read

nglish words written in capitai)letters and a sµiattering knowledge ·:or Hindi or "--' Gujarati would not justify the, denial 1 of tUrdu)ranslation to lhim: of thei material

doCuments and statements referred to as incriminating documents in the grounds . and relied upo.n by the 1 ide_taining authority in arriving at )ts subjective satisfaction. [559 E-G, 560 E-D]

ORJOINAL JURISDICTION: Writ' Petition (CRL) No. 1077 of • 1982. ..._

(Under Article 32 of the Constitution of India)

,., Ram Jethmalanni, P._H. Parekh, _Bhaskarbhai Mehta,· C. A.

Shah.and J.M. Parekhfor,.tho petioner.

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(1983) 1 s.c.a.

D. V. Patel and R. N. Poddar, fot the Respondent . (State of Gujarat).

Ashwani Kumar and Miss A. Subhrishini for the Respondent- Union of India.

The Judgment of the Court was delivered by

TULZAPURKAR, J. By this petition lbabim Ahmad Batti, the detenu herein, is seeking tochallenge the detention order dated !st . July, 1982 issued by the respondent No. 1 (State of Gujarat) under s. 3 '( 1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1947 (for short, 'the COFEPQSA') and praying for a writ of habeas corpus directing bis release after quasliing the same. ·

On 15th.April, 1982, , the Custom Officers raided Bungalow

o; 3, Sweta Park Society, Bhuderpura, Ambawadi, Ahmedabad, allegedly belonging tel the petitioner but standing benami in the name of Rekbaben. Cbampaklal Sheth and during the search that followed in the presence of the petitioner and one Hasmukb Prabbudas Sharma contraband comprising 700 pieces of gold with foreign markings weighing 7000 tolas, radios, camera, Video cassette recorder, colour.T.V, synthetic fabrics, crockery, etc. of considerable value and Indian curreney of Rs. 72,766 were recovered; the said gold and other a1 ticles were seized under the reasonable_ belief that the same were smuggled goods liable to confiscation under the Customs Act, 1962.

This seizure was followed by recording of confessional statements of the petitioner and bis co-conspirators. During the F follow up action certain other premises were searched and further

--~.contraband was seized. .BY an order dated 19th April, 1982 issued by the Respondent No. 1 under s. 3 (I) of the COFEPOSA, the petitioner was detained in Ahmedabad Central Prison with.a view to preventing him from transporting smuggled goods and keeping smuggled goods. Grounds of detention dated 23rd April, 1982 alongwith copies of statements and documents relied upon by the detaining authority were served on the petitioner. The.petitioner made a representation against the said order of detention, which .was considered by the Advisory Board, who opined thus :

H " ... although at the date when the det.ention order was passed there was sufficient cause for reaching the subjective '

IBRAHIM V, GUJARAT, (Tulzapurkar, J.)

satisfaction that it was absolutely necessary to detain the detenu under s. 3 (I) of the Act, the subsequent failure on th.e part of the detaining authority to supply the translations .in Urdu of the ground, and documents relied upon wasa dear

violation of the onstitutional mandate of Art.· 22 (5) so as to vitiate the order of detention and hence, in our view, there exists no sufficent cause for the continued detention of said

dr.tenu."

f•)llowing the above opinion of the Advisory Board, the respondent No. I by its order dated !st of July, 1982 revoked the . detention of the petitioner under s. 8 (f) of the COFEPOSA , and directed him to be released forthwith, unless he was required to be retained in . custody . under the orders of any competent court . of law .. However, on the same day i.e. lst")f July, 1982, the

respondnt No. I issued the impugned order of detention against the petitioner under s. 3 (I) of' the COFEPOSA 'and served, it on him on 2nd July, 1982 whilst be was "in judicial c; ustody under Courts order in . two cases, one under the Arms Act and the other under the Foreigners Act pending against him and after taking'' hiin. in custody again under the impugned order detained him in Ahmedabad Central prison under tbe COFEPOSA.

This detention was effected "with a view .to preventing him from smuggling goods and engaging himself in transporting smuggled

"; E goods and keeping smuggled goods:" Grounds of detention running into 32 typed pages in English as well as translated in Urd.u, toge" tber with copies of all the statements and documents, .referred to and relied upon in the grounds; in regional language were served upon the petitioner on 7th July, 1982. Urdu translations of the bulk of the statements and documents referred to and relied upon in the grounds were supplied to the petitioner on 15th July, 1982, though such supply did not include translations of all the statements and documents relied upon by the detaining .. authority. The petitioner's representation mage through . his. Advocate on 5th of August 1982 having been rejected on 13th of August, 1982, the petitioner has filed this writ petition under Art. 32 of the Constitution challenging

bis etention on several grounds.

Though counsel for tJie petitioner indicated three or four grounds on the basis of which he desired to challenge the impugned 9rder, he. pressed into service only one pertaining to the breach of

546 SUPllEMB COURT RB'PORTS

(1983] ! S.C.R.

I the constitutional safeguards contained in Art. 22 (5), which accor ding to him, was sufficient to quash the impugned order. According to counsel in the matter of supply of Urdu translations of documents and statements referred to and relied upon in the grounds by the detaining authority for the purpose of arriving at the requisite subjective satisfaction, t~ detaining authority . (respondent No. I ha; committed breach of Art. 22 (5) read with section 3 (3) of the COFEPOSA resulting in non-observance of the constitutional safeguards conferred on the detenu and therefore, the impugned order was liable to be set aside. He pointed out that.the grounds together with all the documents and staiements )ncorporated in the grounds by reference are required to be 'communicated' to the detenu; that is to say, are required to be brought home to hiin in the language lie understands, ordinarily .within S days of his detention and only in exceptional circumstances and for reasons fo be recorded in writing within 15 days from the date of his detention under s. 3 (3) of tlie COFEPOSA, in other words, the delay beyond S days is justifiabie only in exceptional circumstances and for reasons to be record.ed in writing, but in the instant case Urdu translations of the bulk of documents and statements i!Jcorporated in the ground and relied upon by the detaining authority in reaching the requisite subjective satisfaction were not supplied to the detenu within the normal period of 5 days but the supply thereof \vas delayed upto 13 days without any exceptional circumstances obtaining in the case and without r_ecording any reasons, as neitlier the existence of exceptional circumstances nor the fact .whether the reasons had been recorded in writing was communicated to the detenu. Counsel urged that the petitioner was deprived of an opportunity to make effective representation to satisfy the Advisory Board that no exceptiOnal circumstances existed or that the delay in supply of Urdu translations that . were given to him was neither reasonable nor justified. Counsel further urged that ihe. explanation trotted out now at the l:iearing, namely, that due to Ramzan. month transltors in Urdu were not available earlier is no justification whatever for the delay has occurred and hence the dnty to communicate the. grounds together with documents and statements in support thereof within prescribed time has been breached. In any case, Urdu translations of all the docu- ments and statements referred to and relied upon in the ground&-' for reaching the. subjective satisfaction have not been supplied to. the petitioner at all and quite a few of such documents and statements,_

Urdu translations whereof. have not been . supplied at all, are ele '

,, ,

JBRAHIM v. GUJARAT (Tu/zapurklJ' J.) 547

vant and material and such as have influenced the mind .of the detaining authority in reaching its conclusion about the necessity to detain the petitioner. In other words, mere service of the gr-0unds in Urdu accompanied by copies of material documen, ts and state ments in English, Hindi or Gujarati on the petitioner on 7th July is no sufficient compliance of the duty to comm.unicate co, ntemplated , b}" Art. 22 (5) according to counsel and he insisted that only on 15th July, 1982 'when Urdu translations of the bulk of documents and statements were served it could be said that the grounds were communicated to the detenu i. e. after 13 days of his detention without there being any exceptional circumstances and even on that date all Urdu translations were not furnished and this has happened notwithstanding the revocation of the earlier order precisely for failure to supply Urdu translations. It is in this manner that the constitutional safeguards conferred on the petitioner under Art. 22 (5) read with s. 3 (3) of the COFEPOSA have been denied to him and, therefore, the continued _detention of the petitioner is illegal.

On the other hand, counsel for the responents have contended that no breach of Art. 22 (5) read with s. 3 (3) of the COFEPOSA has been committed as alleged. Counsel for rhe respondents pointed ·

out that after the earlier detention order was revoked by the detaining autho, rity under , s, 8 (f) of the COFEPOSA, the petitioner was actually detained on 2nd July 1982 under the impugned order dt. 1st July, 1982 and within 5 days of his detention the grounds in English language as well as in Urdu together with copies of all documents and statements referred to in the grounds in their regional language were served on the petltionerand what is more translations of the bulk of the documents and statements so referred in the grounds were supplied to him on 15th July, 1982 i.e. within 13 days ot his detention, and, according to counsel, this delay in supply of the Urdu

translations beyond the normal peribd of 5 days was due to exceptional circumstances and reasons therefor have been recorded in writi11g as stated by Shri P. M. Shah, Deputy Secretary of the respondent No. I in his affidavit filed on 10th of September, 1982. Shri Shah has stated in his affidavit that "time was taken as large number of documents were to be translated", while .an office noting. appro ved and signed by the Home Minister (copy whereof was produced at the time .of hearing) indicates that on account of the month of . Ramza, n handful Urdu trn11slators wr~ l'Vailable to do the \"(Or]>

.. F

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SUPREME COURT REPORTS [1983l l S.C.R.

from 12 noon to 4.00 p. m. and, therefore, as a special case Urdu translations were decided to be furnished to the detenu within 15 days as prescribed by the COFEPOSA and accordingiy Urdu translations of bulk of documents and statements were furnished within 13 days of the detention. Counsel further contended that neither Art. 22 (5) nor s. 3 (3) of the COFBPOSA casts an obliga tion upon the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur or about the fact whether the reasons have been recorded in writing or not and these are matters for the Court's satisfaction when any issue in that behalf is raised before it! As regard the non supply of Urdu

translations of some of the documents and statements referred to in the grounds it was contended that most of these documents compri sed statements of account, which were in English figures and some of them contained. English words in capital letters, and words in Hindi and Gujarati and the material on record clearly shows that the peti tioner knows English figures, understands l;!nglish words in capital letters and can also converse in Hindi and Gujarati and as such no prejudice was caused to him in the matter of making representation against his detention. In these circumstances, counsel for the res pondents contended that the impugned order could not be quashed on the ground suggested by the petitioner. ,

' Since breach of constitutional safeguards contained in Art. 22(5) and s. 3(3) of the COFEPOSA has been the main ground for attacking the continued detention of the detenu as illegal, it will be desirable to consider the true meaning and import of these two provisions. Art. 22(5) of the Constitution runs thus :

"When any person is detained in pursuance of an order made under any law providing for preventive deten lion, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

G Section 3(3) of the COFBPOSA provides as under:

''For the purposes of clause (5) of Art. 22 of the Constitution; the communication to a person detained in pur suance of a detention order of the grounds on which the H order has been made shall be made as soon as may be after tbe detentio11, but ordinarily not later than five days, and in

IBitAHIM v. GUJARAT (Tulzapurkar, J.)

exceptional circumstan_ces and for reasons to be recorded in writing, not later than fifteen ays, from the date of detention."

The real import of cl. (5) of Art. 22 including the true Q\eaning of the expression "as soon as may be" occurring therein was \'xplained by this Court in Abdul Jabar Butt v. State of Jammu & Kashmir(') After noting that s. 8(1) of the Jammu & Kashmir Preventive Detention Act was nothing but a reproduction in substance of the provisions of cl. (5) of Art. 22 of the Constitution, this Court pointed out that the said provision imposes upon the detaining authority two duties, namely, (i) the duty of communicating 'to. the detenu the grounds on which the order bas been made and (ii) the duty of affording him the carllcs.t opportunity of making a representation against the detention order and that the first duty is to be performed "as soon as may be", meaning thereby "within a reasonable time with an understanding to do it within the shortest possible time" the Court, however, pointed out that what could be regarded as 'reasonable time' or the 'shortest possible tim_e' would depend upon the facts and circumstances of the case in which the question arises for decision, but the time predicated by the expression 'as soon as may be, was what was 'reasonably convenient' or 'reasonably requisite'. In s. 3(3) of tlie COFf!POSA the concept of "reasonable time" or the "shortest possible time" or "reasonably requisite, time" predicated by the expression "as soon as may be" has been retained but .as explained in A.K. Roy' s(2) case it is only with a view to meet the practical 'exigencies of administrative affairs that the detaining . . authority is peritted to communicate the grounds of detention not later than 5 days ordinarily and not later than 15 days if there are exceptional circumstance~ and that too with a safeguard of reasons being recorded in writing. In other words s. 3(3) provides for the outer limits and the grounds of detention must, therefore, be furnished to the detenu ordinarily within 5 days from the date of detention but in exceptional circumstances and for reasons to he recorded

in writing the time for furnishing the grounds may stand extended G .but in any event it cannot be later than 15 days from the date of -

detention. It is also clear that uriless the first duty imposed upon the detaining authority under Art. 22(5) is discharged within the

(ll [1957] SCR SI.

(2) [1982] I s.c.c. 271.

. .,

550 .

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(1983) I S.C.R •

A prescribed time it would not be possible for the detenu . to exercise his right of. making a representation against his detention-a corresponding right arising from the second duty cst on the detaining authority, namely, to afford the detenu the earliest opportunity of

making suh representation against his detention. ·

. . In Khudi Ram' s(1) case this Court has explained what is meant by "grounds on which the order is made" in the context of the aforesaid duties - cast upon the detaining authority and the corres- ponding rights accruing to thedetenu under Art. 22(5). The Court has ruled_that in that :context the expression 'grounds' 'does not . merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of s. 3 nor is its connotation restricted to a bare statement of conclusion of fact but "nothing less than at! the basic facts and materials which. influenced the detaining .au tho~ rity in making the order of detention must be communicated to the detenu" and "that is the plain requirement .of the firsfsafeguard in Art. 22(5)". Again, what would be compi:ised in "all the basic facts and materials" has been elaborated by this Cciurt in Smt. Icchu Devi's (2) case where this Court has taketi the view that documents, . statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its • subjective satisfaction get incorporated and become part of the grounds of detention by' reference and the'right of the. detenu to be supplied copies of such documents, statements and. other materials flows directly as a necessary corollary . from the' right conferred on the detenu to be afforded the earliest opportunity of making a'upresentation against the , detention. because unless the former right is available the latter cannot' be meaningfully exercised ·.and in that behalf the court has gone on to observe that "on a proper construction of cl. (5) of Article. 22 read with section 3, sub-section (3) · of the COFEPOSA Act, it is necessary for the valid continuance of detention that; subject to clause (6) of Article 22, copies of the docu- . . . _. ments; statements and other materials relied upon in the grounds of detention should be fur'oished to , Jhe detenu alongwith the grounds of detention or in any event not later than five days and in exceptioal circumstances and for reasons to be-recordCd iri writing. not later than 15 days from the date of detention. If this requirement of clause (5) of Articl.e 22 read with section 3, sub-section (3) is not H


' -

• •

i ..

, IllRAl!ll.! v. GUJARAT {'rulzapurkar, J.) . '

SSI

satisfied the continued detention of detenu would be . illegal and void." It may be stated that in Shalini Soni' s(') case this Court has taken the view that Smt. lchu Devi's case (supra) is a further development and elaboration of what wa! said e.arlier in Khudi Ram's case '(supra) and the Court confirmed the position that the grounds communicated to the detenu must reveal the whole of the factual' material considered by the detaining authority and not merely the - B inferences of !'acts a'rrived at by the detaining authority and that. copies of documents to which . reference . is made in the 'grounds' niust be supplied to the detenu as a part of the 'grounds'.

\ Counsel for the' respondents,· however, referred to three decisions of this Court, nam'ely, Ramchandra Kamat's(')case, Hansmukh's case (3) and Mst. Ummu Saleema's (') case, but in our view, none of these decisions detracts from or affects the validity of. the principle clearly enunciated in Smt. /cchu Devi's case . (supra) and confirmed in Shalini Soni's case (supra).·. In the first case the detaining authority had raised a _ contention that it was not incumbent , upon it to . supply copies of all. the documents relied upon in the grounds of .' detention alongwith the grounds within five days of the deteriiion be-· cause the grounds were sufficiently detailed so as to enable 'the peti~ .·

- tioner to make an effective representation• against the detention and ·

it was in that context that this Court' made observations to the effect . that "it may not be necessary for the detaining authority to stipply,.

'eo'pies of all the documents relied upon in the grounds of detention ·

at the time when the grounds are. furnished to ihe detenu but once , the detenu states that for effectie representation it is necessary that : ·

he should have copies of statements and 'document referred to in the - grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition; the detaining authority cannot decline .to furnish the copies of the documents on the ground that the grounds were suflicintly detailed to enable the petitioner to make an effective representation."-· In fact, the real point decided was that once a demand was made by the detenu for copies of statements and_ doeuments relied. upon inthe grounds of detention for making an effective representation the detaining authority was bound to supply

co [1980J 4 sec S44. c2> [1980J 2 sec 210. 131 [19s112 sec 11s. <4l [1981] 3 sec 317,

. "

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SUPRBMB COURT REPORTS

(1983) 1 S.C.R.

the same with reasonable expedition and could not deny the same on the ground that sufficient details had been furnished in the grounds of detention. The earlier observation cannot be regarded as a ratio of the case. In the second case this Court made a distinction between 'basic facts' and '.subsidiary facts' er 'further particulars of basic facts' and held that a little delay in supplying the• latter category of facts was not fatal to the detention. In the third case all that th.i's Court decided was that failure to supply the documents and materials casually or passingly referred to in the course, of narration of facts in the grounds of detention and which are not relied upon by the detaining authority in making the detention order would not render the detention illegal. Nobody has suggested that docupients and materials to which casual or passing reference is made in the grounds and which have not influenced the mind of the detaining authority in making the order of detention should also be supplied to the detenu. The principle clearly enunciated in Smt. /cchu Devi's case (supra) is that copies of all documents, statements and materials referred to or relied upon in the grounds of detention (meaning thereby which have influenced the mind of the detaining authority in arriving at its subjective satisfaction about the necessity to detain the detenu) must be communicated to the detenu within the time prescribed under s. 3(3) of the COFEPOSA and that without this the right to make representation cannot be meaningfully E exercised.

Apropos the true connotation of the expression 'communicate' the latest decision of this Court in Lallubhai Jogibhai Patel's (')case is significant. Io that case the detenu did not know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining' anthority stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu hut the Court held that that was not a sufficient compliance with the mandate of Art. 22(5), which requires that the grounds of detention must be communicated to the detenu. The Court observed: "Communicate" is a strong word which means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully Iv 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

(I) [1981) 2 sec 427.

lllR.AillM v. GUJARAT (Tuizapurkar, i.)

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 understnds, then that purpose is not served, and the constitutional mandate in Art. 22(5) is infringed." In taking this view the Court relied. upon its three earlier decisions, namely, Harikishan' s °(1) case, Hadibandhu Das's (') case and Smt. Raziya Umar Bakshi's (8) case. In Hadibandhu's case (supra) this Court specifically held that mere oral explanation of the deten- , tion order which ran into 14 typed pages, without supplying the detenu a translation in a script or language which he understood, amounted to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. It would thus follow that .if the grounds together

with copies of all documents,· statements and other materials incorporated in the grounds by reference on which the detaining authority has relied are required to e communicated to the detenu under Art. 22(5) read with s, 3(3) of COFEPOSA within the prescribed time then not merely the grounds of detention but also the copies of all incorporated documents, statements and other materials must be supplied to the detenu in a script or language which he understands and failure to do so' would amount to a beach of the mandate con: tained in Art. 22(5) read with s. 3(3) of the COFEPOSA.

T, wo more decisions of this Court in the context of the obliga- 'tion to supply documents, statements and other materials referred to in the grounds of detention may be noted. In Kam/a Kanya/a/ Khushalani's (')case and Sunil Dutt's(') case this Court has taken the view that all the documents,, statements and other materials referred to or relied upon either in the order of detention or in the grounds of detention mnst be served upon the detenu akingwith the grounds.

The Court has held that where the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex-hypothesiin existence at the time of the issuance of the detention order and framing of th~ grounds, were not supplied to the deteim alongwith the grounds and consequently the detenu was prevented from making effective representation against his detention, the continued detention of the detei:m would

(I) [1962] Suppl. 2 SCR 918 ..

(2) [1969] I SCR 227.

(3) [1980J Suppl. sec 195.

(4) [1981J 1 sec 748.

(5) A.J.R. 1982 S.C. 53.

SUPREME COURT REPORTS '

(1983) l s.c.R..

A be illegal inasmuch as such. non-supply of documeO:ts, statements and materials alongwith the grounds of detention amounted to a violation of the safeguard available to the detenu under Art. 22(5).

tt

' Two propositions having a bearing on the points at issue in the case before us, clearly emrge from the aforesaid resume of decided . . cases : (a) all documents, statements and other materials incorpo- ' rated in the grounds by reference and which have influenced the mind of the detaining "authority in arriving at the requisite subjective satisfaction must lie furnished to the detenu along with the 'grounds or in any event not later than five days ordinarily and in the. excep- \ tional circumstances and for reasons to be recorded in . writing not•. later than 15. days_ from the date of his detention and (b) an such material must be furnished to him In a script or language which he

undestands and failre. to do either of'ihe two things would amount to a breach of the two duties cast. on the detaining authority under Art. 22 (5) of the . Constitution. Relying upon this legal position counsel for the petitioner urged before us that in the Instant case a breach of the mandate contained in Art. 22 (5) read withs. 3 (3) of. the COFEPOSA is clearly involved because of three things that have happened, namely, (i) supply of Urdu translations of the

.bulk of documents and staiements incorporated in the grounds and . relied upon by . the detaining authority . was delayed 'beyond the

normal' period of 5 days without any eceptional circumstances obtaining in the matter, (ii) the alleged exceptional circumstances . purporting to justify the delay_ and the fact that the reasons had been '

recorded in writing were not communicated to the detenu which has prevented him from making 'effective representation against his continued detention and (iii) Urdu _traslations of quite a few documents and statements incorporated in the grounds and relied upon by the detaining authority have not been supplied to him at all. As regards the first two aspects counsel relied upon two decisions of the.

Patna High Court,' namely; Bishwa Mohan Kumar Sinha v. State of Bihar and Ors.(') and Bishwanath Prasad Keshari v. State of Bihar & Ors.(') where the Patpa High Court has ta:ken the view that not mere- . ly should the. exceptional circumstance~ exist justifying the'delayed' supply of the grounds , of detention but these should be communicated to the detenu to enable him to make an effective representation.

Counsel urged that because of the .aforesaid failure the continued

(I) ILR (1974) 53 Pat. 884. '(2) ILR, (1975) 54 Pat. 72.

.....

, >

~··

IllRAllIM v. GUJARAT (Tulzapurkar, J.j

SSS

detention of the petitioner must be held to be illegal. We find considerable force_.in these sumbissions made by the counsel. for the petitioner.

As regards the first aspect pressed into service by counsel for the petitioner the undisputed facts are that the impugned order of detention was.issued on !st of July, 1982, that the same was served on the detenu on 2nd July, 1982; and immediately thereafter he was put under detention in Ahmedabad Central Prion; the grounds of detention drawn up in English and translated in Urdu together with copies of ali documents and statem, ents incorporated in the ' grounds in original language (English and Hindi) were served upori the detenu on Jth July, 1982 i. e. within 5 days of his detention. Obviously, serving"'Copies of all the documents and statements in English and Hindi on him on 7th July, 1982 was of no use and it was only on 15th of July, 1982 that Urdu translations of the bulk of such documents and statements were suppied to him. In other words effectively the grounds of detention together with b'; ilk of documents. and statements incorpotated in the grounds in the script or language understood by him were served or supplied on 15th July, 1982 which was beyond th.e normal period of five days. In any event supply of bulk of documents and statements incorporated in the grounds in the script or language understood by the detenu was delayed beyond the normal period of 5 days. The question is whether such delay was justified by existence of any exceptional circu!"slances as required by s. 3 (3) of the COFEPOSA for in the absence of exceptional circumstances delay beyond normal period of five days would be a breach of the constitutional as well as the legislative mandate.

Counsel for the respondents invited our attention to the affidavit of

I • Shri P .. M. Shah Deputy Secretary (Home Department), Government, of Gujarat filed on 10th September, 1982 and an office noting app; oved and signed .by the Home Minister which have set out the -tiircumstances occasioning the delay. In.his affidavit all ihat Shri

Shah has. stated is "time was taken as a large number of documeuts were to be translated" while in ihe office noting dated 2-7-82 it has been stated :

"It may be mentioned here on account of Holy month of Ramzan, Urdu translators are not available. Handful translators who are available have expressed that they would work from 12 noon to 4 p. m. because of Ramzan fasts

. .

SS6


(1983) 1 s.c.~ ..

 they observe.

Under the circumstances it is proposed as under:

' (I) .. .

' (2) .. .

 (3) The Urdu translations of documents and other materials referred to at (2) above may be 'furnished to the detenu as soon as they are prepared by a batch of Urdu translators engaged for the purpose but not later than 15 days as prescribed in the Act. .. as a special case on account of the utmost difficulties

. pointed out above." ' '.

Below this noting the . Home Minister has made his endorsement approving the proposal under the date 2·7-1982. In other. words, D . according to the respondents there were a large number of documents requiring translation and on account of the Holy month of Ramian Urdu translators were not available and those handful ( translators who were available and were 'put 'on the job were prepared to work only from 12 noon to 4 p. m. because of Ramzan fasts they observed: Preventive detention is a serious invasion of E personal liberty and the normal method~ open to a person charged with commission of any offence to disprove the charge or to prove . his innocence at the trial are not available to the person preventively detained and therefore in preventive detention . jurispruden9e what ever little safeguards the constitution and the enactment authorising such detention provide assume utmost importance and must be .

F strictly adhered to and one of such safeguards is that unless excep tional circumstances really obtain the delay in supply of grounds of ' , detention as also the' documents and statements inq<>rporated . therein

• by reference beyond the normal period of five days would be fatal.

Looked at from this angle the aforesaid explanation given by the . - detaining authority cannot, in our view, be regarded as constituting G exceptional circumstances justifying the delay in the supply of bulk of documents and statements to the 'detenu in the script cir ianguage lie understood. In the first piace, on admitted facts in the case upon revocation of the earlier detention order on !st July, 1982 there. was •. 'no urgency to issue the impugned order of detention on the sa.me day

H . or serve it ori the detenu on the following day, thedetenu was in . judical custody then in. other two cases, one under .the Arms Act and - the other under the Foreigners Act and no.bail having been granted

I <

, ...

, mRAHIM v. GUJARAT (Tulzapurkor, J.) 557

to him there was no fear of his 'absconding from Ahmedabad, there being no urgency the detaining authority could have kept all the material ready in Urdu and supplied the same to him immediately after detaining him second time. Secondly, the office noting does not give particulars of how many Urdu translators were put on the job except vaguely stating 'handful translators' were available.

Thirdly the office noting clearly suggests that the translation job was entrusted to Urdu translators belonging to a particular community who observed Ramzan fast, instead of. restricting the ohoice in this manner additional Urdn translators who had nothing to do with the observance of Ramzan fasts could have been but on the job, but nothing is indicated whether and if so what efforts were made in . that behalf. It is difficult. to swallow the proposition that the State

Government (which is detaining authority here) with all its power and resources could not find requisite number of qualified persons to do that job so as to make Urdu translations ot the concerned documents and statements avail, ble to the, detenu within the normal period of.five days. With the previous detention order having been vitiated on the very ground( greater vigilance and expedition was expected from the detaining authority. In all the facts and circum stances it is impossible to hold that exceptionai circumstances 'obtained in the case justifying the delay and as' such the si.me constitutes a breach of the constitutional as well as the legislative mandate.

On the second aspect the contention of counsel for the peti: tioner has been that the detaining anthority while supplying the Urdu translations of the bulk do.cuments and statements beyond the normal period of 5 days ought to have given indication to the detenu that the delay was caused due to exceptional circumstances and what the exceptional circup:istances were, as also of the fact that reasons for the delay had been recorded in writing but this was not done and this failure prevented tbe detenu from making effective represen-. talion against his detention. Counsel for the respondents, however, contended that neither Art. 22(5) nor s. 3(3) of the COFEPOSA casts any obligation or duty on the detaining authority to inform the detenu anything about the exceptional circumstances due to' which delay might occur nor about the fact whether reasons have been recorded in writing or not and, according to counsel, these are matters for the Court's satisfaction when any issue in that behalf is raised before it. It is true that neither Art. 22(5) nor does the

COFEPOSA contain any provision which casts such a duty upon

SSS SUPREME dli.Jll.T RllPoRtS (19S3) I s.c.R.

the detaining authority in express terms; it is also true that the Court will of course go into and,' satisfy itself about these matters when any issue in that behalf is raised before it. But the question fs whether such a duty is cast.on the detaining authority by necessary implication ? Does it or does it not flow from the right conferred upon the the detenu to make r_epresentation against his detention? Jn this behalf it cannot be disputed that under the scheme of the COFE- POSA against his detention the detenu has a right to make a representation to:.an authority which is superior to the detaining authority (e.g. to the State Government when the detai.ning authority happens to be an officer of that Government or to the Central Government where the detaining authority happens to be the State Government) as well as to the Advisory Board' and such representation against his detention can be on merits of the grounds of detention as also for. failure on the part of the detaining authority to observe strictly the requisite safeguards and on satisfying the superior authority or the \ 1.

Advisory Board on either count he is entitled to have his detention revoked or, quashed .. We have alreadly indicated above that one of such safeguards is that unless exceptional circumstances really obtain

i_n a case the delay in supply of grounds of detention and/or the documents and statements incorporated therein by reference beyond the normal period of live days would be fatal to the continued deten-. tion of the detenu. In other words, the detenu is entitled to satisfy either the-superior authority or the Advisory Board that the delay that has occurred in the. supply of requisite material to him was not jusiified because exceptional circumstances did not exist or those put forward were unreal or invalid.

Obviously, the detenu will not be in a position to do so if the alleged exceptional circumstances are not communicated to him.

In our v'iew, therefore, a duty to inform the detenu about the ex'istence of exceptional circumstances and what

thy were for delay in supplying grounds of detention and/or documents and statements incorporated therein arises by necessary implication and flow from the right which is conferred upon the detenu to make representation against his . d'etention.

In tbe instant case, for instance, if the alleged exceptional Circumstances were communicated. to the detenu at the time of the delayed supply of the concerned documents and statements in Urdu language he could have satisfied the superior authority or the Advisory Board that the exceptional circumstances did not really obtain in the case and the delay had vitiated his detention. In other words, wi\at he has done before the Couit now, he could have done before the superior authorities or the Advisory

IBRAHIM' GUJARAT (Tulzapurkar, J.) 559

Board.

For these reasons we approve of the view nltimately taken by the Patna High Court in the two decisions cited above, particuc . . ' larly the decision in Bishwa Mohan Kumar Sinha's c1,1se (supra) where both the aspects have been dealt with. In our view, therefore, the impngned failure in this case constitutes another breach of the safeguard contained in Art. 22(5) read. with s. 3(3) of the COFEPOSA and vitiates the continued detention _of the petitioner .

Latly, _ Urdu transfations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly not supplied to the detenu at all and the only explanation given by the counel for the respondents at the heating has been that most of these documents (Urdu translations . whereof were not supplied) comprised statements of accounts which had figures in English with some English words written in capital letters and some documents were in Hindi and Gujarati and the record (statements of Rekha, her ' sister Indu and one Jayantilal Soni, all co-conspirators of the detenu, recorded during the investigation) clearly shows that the petitioner knows English figures, underst.ands English words written in capital letters and can also converse or talk in Hindi and Gujarati and as ' such the non-supply of Urdu translations of these_-documents cannot he said to have caused any prejudice to the petitioner in. the matter of making a representation against -his detention. In our view, the explanation is hardly satisfactory and .cannot .condone the non• supply of Urdu translations of these' documents.

Admittedly, . the petitioner is a Pakistani national and Urdu seems to he his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify t_he, denial of Urdu translations , lo him of the material documents and "statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfacit; on. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot he brushed aside as false especially in view .of the fact that the same was accepted on the earlier occasion by the Advisory Board who had actually opined that failu"re to supply: Urdu translations of grounds of detention and documents bad vitiated the earlier order of detention and following this opinion respondent No. I bad

revoked the said order. Moreover, with the assist.ance of counsel H on either side we have ourselves gone through many of these documents an<l statements and it is not possible to say that most-of them

560 . ' SUPRl!ME COURT REPORTS [1983] 1 s.c.a.

ae merely statements of account containing figures in English with English words written in capital letters. These documents recovered from three fiats in three different . societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transac . tions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the rionsupp)y of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Art. 22( 5) is clearly violated.

Having regard to the ab0ve discussion it is clear to us tat the continued detention of the petitioner would be illegal and we accordingly quash the same and direct him to be released forthwith.

S.R.

Petition allowed.