Case ID: 4256

Judgment:
tition Nos. 434 435 of 1980. (Under Article 32 of the Constitution) Ramjethmalani	 H. Jagtiani	 S.K. Dhingra and L.P. Daulat for the Petitioner. M.N. Phadke and M.N. Shroff for the Respondent (State). Abdul Kedar and Miss A. Subhashini for the Respondent (Union of India). The Judgment of the Court was delivered by: SARKARIA	 J. This judgment deals with two writ petitions for the issue of a writ of habeas corpus	 which were allowed by us by a short Order	 dated April 23	 1980. In Writ Petition 434 of 1980	 the detenu is one Indru 's Ramchand Bharvani; while in Writ Petition 435 of 1980	 the detenu is Indru 's father	 Ram Chand Bharvani. The two detenus Indru 's 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 1971. On 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	 Indru 's	 and seized two cameras and three wrist watches worth about Rs. 1.50 lakhs. The 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 346 would attend daily before the Customs Officers and cooperate in the investigation. This condition was later on related. On February 16	 1980	 an order of detention	 dated February 15	 1980	 purporting to have been made under Section 3(1) of the (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 corpus. On 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 rejected. The 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	 1980. On 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. Shri Ram Jethmalani	 appearing for the detenus	 challenges the detention mainly on these grounds: (1) The order of detention	 purporting to have been signed by Shri Salvi	 Secretary in the Home Department	 to the Government of Maharashtra	 is void because the concerned Minister of the State Government never	 in fact	 passed any such order and under the rules of business framed by the Governor under Article 166 of the 347 Constitution	 Shri Salvi had no authority to pass the order of detention. (2) The detaining authority never applied its mind to the earlier statements of four persons from whom the detenus claimed to have acquired the gems in question	 and in which they had on the basis of documentary evidence supported the contention of the detenus. Further	 there was no evidence of smuggling in this case at all and the detaining authority committed illegality inasmuch as it relied on presumption under Section 123 of the Customs Act. The use of this presumption was not available to the detaining authority in the exercise of its jurisdiction under COFEPOSA. This shows that there was total non application of mind on the part of the detaining authority. (3) The detenus made a written request to the detaining authority on February 18	 1980 for supply of the copies of the statements and documents relied upon in the grounds of detention	 to enable them to make an effective representation. The detaining authority	 however	 callously and deliberately refused to supply the copies and conveyed rejection of this request by a letter	 dated February 14	 1980	 which	 in fact	 was received by the detenus on March 25	 1980. It was on the direction of the Central Government that the State Government supplied the copies of some of the statements to the detenus on April 3	 1980. The detenu had a constitutional right to be afforded a fair and full opportunity of making an effective representation against his detention. The refusal and the belated supply of these copies had violated that right of the detenu. Even how	 copies of the earliest statements of the four persons	 as is apparent from their statements	 have not been supplied to the detenus. On account of this delay	 the detention is vitiated. (4) The detenu 's representation	 dated March 11	 1980	 made to the Central Government for revocation of the detention under Section 11 of the COFEPOSA has been wrongly rejected by an unauthorised person. Under the Rules of Business	 only the Revenue Minister of the Union Government was authorised to deal with and reject that representation. But it seems that the representation was never put up before the Minister. (5) The representation	 dated March 24	 1980	 made by the detenus to the detaining authority is now reported to have been rejected on April 8	 1980. But the question still remains as to who passed the order of rejection. If this representation was rejected by a person other than the Minister who alone was competent to do so	 under the Maharashtra Rules of Business framed under Article 166 of the Constitution	 then such rejection would be illegal. 348 As regards (1)	 Shri Phadke	 appearing for the respondent State	 has submitted for the perusal of the Court the original record from which it is apparent that the matter was put up by the Secretary. Shri P.G. Salvi to the Minister concerned and the order of detention was in fact	 passed by the Minister. The first contention is therefore	 devoid of merit. Similarly	 it is clear from the police records that the representation	 dated March 24	 1980	 of the detenus was considered by the Adviser to the Governor of Maharashtra	 the State then being under President 's 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)	 either. Indeed	 Shri Jethmalani has concentrated mainly on Contention (3). In reply to this contention	 Shri Phadke submits that the grounds of detention were as elaborate as possible	 that the substance of the statements	 of which copies were asked for by the detenus	 had been incorporated in those 'grounds ' which were served on the detenus	 that in such a situation	 the 'grounds ' served on the detenu	 were more than sufficient to enable him to make an effective representation. It is contended that under the Constitution	 the detenu has got a right to be furnished only with the grounds of detention	 that is	 conclusions drawn from facts and not matters of detail or any other matter which is not referred to or relied upon in the grounds of detention. This	 according to Shri Phadke	 was one of the reasons that impelled the State Government to refuse the supply of the copies to the detenu. The second reason	 according to the counsel was that the supply of the further information would have exposed the informants to bodily harm at the hands of the agents of the detenus	 that the matter being still under investigation	 the disclosure at that stage of the information would have adversely affected the investigation and harmed public interest. Let us at the outset be very clear about the precise factual position. The 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 349 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 promptitude. To justify the refusal to supply the copies the stand taken by the State Government in the affidavit filed on their behalf by Shri P.G. Salvi	 Secretary to the Government	 Home Department	 is as follows: "(a) Looking at the exhaustive grounds furnished to the detenu and also the fact that the four persons named therein had denied before the Customs Officers that they sold the diamonds in question or gave them on 'jhangad ' basis was communicated to the detenu it was not necessary to furnish any copies of statements and documents to the detenu to enable him to make an effective representation against his detention. (b) After the application on behalf of the detenu dated 18th February 1980 was received	 a communication dated 27th February 1980 was received from the Collector of Customs (Preventive)	 Bombay. This letter clearly suggested that copies should not be given Annexure "A". " Annexure "A" to the affidavit is a letter	 dated February 27	 1980	 from the Collector of Customs	 Bombay	 addressed to the Secretary to the Government of Maharashtra	 Home Department	 in reply to the latter 's letter	 dated February 19. In para 2 of this letter	 the Collector has stated: "In the case in which the captioned detenus are involved	 investigation to unearth the conspiracy and find out the other persons involved in it	 are in progress. It appears from the material under seizure that the case has wide ramifications	 which need to be investigated from various angles. Hence	 furnishing copies of the statements and documents at this stage would be detrimental to the investigation in progress from prosecution point of view and might even endanger the life of such of those witnesses who have either deposed against the detenus or provided clues. Under these circumstances	 furnishing of copies of statements and documents relied upon in the grounds for detaining the aforesaid accused at this stage	 would not be in public interest. However	 we have no objection for furnishing copies of the panchanamas. " 350 In this affidavit	 Shri Salvi has not stated that he had personally applied his mind to what the Collector had said in his letter	 dated February 27	 1980	 nor has he affirmed that he had intimated to the detenu that the copies had been refused in exercise of the discretion under Article 22(6) of the Constitution	 on the ground that the disclosure of that information was	 in the opinion	 of the Government	 not in the public interest. It 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 all 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 vs 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 Khudiram 's case. There is merit in this submission. The 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 the copies at that stage would be detrimental to the investigation and public interest. This "so called" reason also was unsustainable 351 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 detention. As 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 the detenus. Be 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 352 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 were 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 grounds 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 materials and documents to the detenus has vitiated the detention. It was on this short ground	 we	 by our order	 dated April 23. had allowed the writ petitions and directed the release of the detention. N.K.A. Petition allowed.

Summary:
The two detenus were carrying Dn business in diamonds and precious stones. The Customs Officer at Bombay raided their premises and seized a huge quantity of valuables. During interrogation they claimed that some of the articles seized were not smuggled goods but were locally acquired and gave names of four persons from whom they were acquired. The detenus were released on bail by the Magistrate on certain conditions. An order of detention under section 3(i) of the COFEPOSA	 1974 alongwith the grounds of detention was served on the detenus on Feb. 16	 1980. The wife of the detenu addressed a letter on Feb. 18	 1980 to the first respondent requesting him to furnish the detenus with the materials relied upon by the detaining authority in the grounds of detention. The detenu received a letter dated March 14	 1980 from the State Government on March 25	 1980 declining the request for supply of copies. The detenu had also sent a petition through the Central Government on March 11	 1980 complaining the non supply of copies of the necessary documents and also prayed for the revocation of the order of detention. On April 3	 1980 the Central Government wrote to the detenu that his request for revocation had been rejected	 The Central Government	 however	 advised the State Government to furnish the detenu with the copies of the required documents. As a result	 the copies were received by the detenu on April 3	 1980. The detenu had also made a representation to the State Government on March 24	 1980 which	 according to the information by the counsel of Respondent No. 1	 was declined. The counsel for the detenus challenged the detention order on the grounds; (i) that the detaining authority callously and deliberately refused to supply the copies of the statements and documents relied upon in the grounds of detention	 (ii) the detenu had a constitutional right to be afforded a fair and full opportunity to make an effective representation against their detention and his representation dated March 11	 1980	 was wrongly rejected by an unauthorised person. The respondent argued that (i) the substance of the information required had been incorporated in the grounds of detention ! which were served on the detenus	 (ii) the supply of further information would have exposed the informants to bodily harm and the information would have adversely affected the investigation and harmed public interest. 344 Accepting the petition ^ HELD: 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 promptitude. [349A B] It 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) tho 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 all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue. [350B D] 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 ground to the detenu. In the instant case	 the grounds contain only tho substance of the statements	 while the detenu had asked for copies of tho full text of those statements. [350E F] Khudiram Das vs The State of West Bengal & Ors. ; referred to. 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 withheld	 could not	 by any reckoning	 expose those persons to any harm or danger at tho hands of the agents or partisans of the detenus. 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 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. [351 F G] 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. It was on receiving a direction from the Central Government that the copies were supplied. On account of this chill indifference and arbitrary refusal	 the detenu	 who had applied for copies on Feb. 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 grounds of detention	 all the basic material relied upon or referred to in those 'grounds ' must be supplied to the detenu with reasonable expedition 345 to enable him to make a full and effective representation at the earliest. What is 'reasonable ' expedition is a question of fact depending upon the circumstances of the particular case. [351 H	 352 A C] In the peculiar facts of the instant case	 the delay of more than a month	 in supplying the copies of the basic materials and documents to the detenus has vitiated the detention. [352 C D]