Kamla Kanahiyalal Khushalani Vs. State
of Mahararashtra & ANR [1981] INSC 1 (6 January 1981)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION: 1981 AIR 814 1981 SCR (2) 459 1981
SCC (1) 748 1981 SCALE (1)253
CITATOR INFO :
RF 1982 SC1315 (29) R 1982 SC1500 (9) R 1985
SC 53 (5) F 1985 SC 696 (2) RF 1990 SC 231 (17) R 1990 SC 605 (15)
ACT:
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974-Section 3(3)-Failure to simply
documents and materials to the detenu-Effect of- "effective
representation"-Meaning of.
HEADNOTE:
In a petition under Art. 32 of the
Constitution the petitioner detenu complained that though the grounds of
detention were served on the detenu on the date of arrest (October 20, 1980)
the materials and documents on which the order of detention was based were not
supplied to him till November 5, 1980 and that his representation dated
November 18, 1980 was disposed of nearly a month later (December 15, 1980) and
that the failure on the part of the detaining authority to supply the requisite
documents and materials and the unexplained delay in the disposal of the
representation constituted violation of the safeguards contained in Art, 22(5)
of the Constitution which vitiated the order of detention.
Allowing the petition,
HELD: It is well settled that the law of
preventive detention has to satisfy a two-fold test: (1) that the protection
and the guarantee afforded under Art. 22(5) of the Constitution are complied
with, and (2) that the procedure is just and reasonable. [463G] Before an
"effective representation" could be made by the detenu he must be
supplied with the documents and materials which form the basis of the grounds
of detention and unless this is done there could be no question of making any
representation, much less an "effective representation" against the
order of detention. The documents and materials relied upon in the order of
detention form an integral part of the grounds and must be supplied to the
detenu pari passu the grounds of detention. [461B] Smt. Icchu Devi Choraria v.
Union of India & Ors.
[1980] 4 SCC 531 and Smt. Shalini Soni &
Ors. v. Union of India & Ors. [1980] 4 SCC 544 referred to.
If procedure under Art. 21 has to be
reasonable, fair and just, then the words 'effective representation' appearing
in Art. 22(5) must be construed so as to provide a real and meaningful
opportunity to the detenu to explain his case to the detaining authority in his
representation. If the words 'effective representation' are interpreted in an
artificial or fanciful manner, then it would defeat the very object not only of
Art. 22(5) but also of Art. 21 of the Constitution. It is settled law that it
is of the utmost importance that all the necessary safeguards laid down by the
Constitution under Art. 21 or Art. 22(5) should be complied with fully and
strictly and any departure from any of the safeguards would vitiate the order
of detention.
[463E-F] Maneka Gandhi v. Union of India
[1978] 2 SCR 621 referred to.
460 In the instant case not only were the
documents and materials not supplied to the detenu alongwith the order of
detention but there had been an unexplained delay of about 25 days in disposing
of the representation of the detenu.
[465B] [Despite repeated warnings by this
Court the detaining authorities do not care to comply with the spirit and tenor
of the safeguards contained in Art. 22(5) of the Constitution. There should be
no difficulty in keeping copies of the documents and materials referred to in
the order of detention and supplying them to the detenu along with the order of
detention. This dereliction on the part of the detaining authorities results in
the release of persons indulging in such anti-national activities as smuggling
though on merits the detentions in suitable cases may be justified.]
ORIGINAL JURISDICTION: Writ Petition No. 5873
of 1980.
(Under Article 32 of the Constitution.) Ram
Jethmalani and Miss Rani Jethmalani for the Petitioner.
O. P. Rana and M. N. Shroff for the
Respondents.
The Judgment of the Court was delivered by
FAZAL ALI, J.- This petition has been filed by the sister of the detenu praying
that the detenu be released because the safeguards provided by the constitution
have not been complied with. The detenu was arrested on 20-10-1980 when only
the grounds of detention were served on him. On 5- 11-1980 the documents and
materials on the basis of which the order of detention was passed were supplied
to the detenu. On the 18th November 1980, the detenu made a representation to
the Government which was disposed of as late as the 15th December 1980. In
support of the petition, Mr. Jethmalani has submitted two points on which
alone, in our opinion, the petition must succeed.
In the first place, it was pointed out that,
as already held by this Court the grounds served on the petitioner were not
accompanied by the documents and materials which formed the basis of the order
of detention, hence the safeguards contained in Art. 22(5) of the Constitution
not having been complied with, the continued detention of the detenu became
void. Secondly, it was argued that even though the detenu had made a
representation on 18- 11-1980, the same was disposed of a month thereafter and
no explanation for this delay has been furnished by the respondents. This Court
has held in numerous cases that the representations of the detenu should be
disposed of as soon as possible and even an unexplained delay of 12 to 14 days
has been held to be fatal to the order of detention.
Reliance has been placed 461 by Mr. Jethmalani
on two decisions of this Court in Smt. Icchu Devi Choraria v. Union of India
& Ors. which was later followed in Smt. Shalini Soni Ors. v. Union of India
& Ors.
As regards the first case, which is a
decision of two Judges of this Court, it has clearly held that before an
effective representation can be made by the detenu he must be supplied with the
documents and materials which formed the basis of the grounds of detention.
Unless this is done, there could be no question of making any representation, much
less an effective representation, against the order of detention. In this
connection, Bhagwati J., speaking for the Court observed as follows:- "Now
it is obvious that when clause (5) of Article 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 their 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 without them. It would not therefore be
sufficient to communicate to the detenu a bear recital of the grounds of
detention, but copies 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. One of the primary objects of communicating the grounds
of detention to the detenu is to enable the detenu, at the earliest
opportunity, to make a representation against his detention and it is difficult
to see how the detenu can possibly make an effective representation unless he
is also furnished copies of the documents, statements and other materials
relied upon in the grounds of detention. There can therefore be no doubt that
on a proper construction of clause (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 462 documents,
statements and other materials relied upon in the grounds of detention should
be furnished to the detenu along with the grounds of detention or in any event
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. If
this requirement of clause (5) of Article 22 read with Section 3, sub-section
(3) is not satisfied, the continued detention of the detenu would be illegal
and void." Mr. Rana for the State has submitted that the observations
extracted above do not form the ratio of the decision because in a subsequent
para of the decision, Bhagwati, J. had observed that at the most grounds could
be given within a period of five to fifteen days of the order of detention.
These observations, no doubt, are contained in paragraphs 7 and 8 of the
judgment but they do not, in our opinion, form the ratio decidendi of this case
but were made merely to rebut the extreme arguments that could be put forward.
This Court made it very clear that even apart from the interpretation placed by
the Court on Art. 22(5) of the Constitution, the conclusion is inescapable that
the documents and statements which formed the basis of the grounds of detention
must be supplied to the detenu without least possible delay. It is in this
context that these observations were made in paragraphs 7 and 8 Moreover, this
position has been made absolutely clear by a later decision of this Court in
Smt. Shalini Soni's case (supra) where a Division Bench of this Court while
endorsing Smt. Icchu Devi's case observed as follows:- "The matter may
also be looked at from the point of view of the second facet of Article 22(5).
An opportunity to make a representation against the order of detention
necessarily implies that the detenu is informed of all that has been taken into
account against him in arriving at the decision to detain him.
It means that the detenu is to be informed
not merely, as we said, of the inferences of fact but of all the factual
material which have led to the inferences of fact. If the detenu is not to be
so informed the opportunity so solemnly guaranteed by the Constitution becomes
reduced to an exercise in futility. Whatever angle from which the question is
looked at, it is clear that 'grounds' in Article 22(5) do not mean mere factual
inferences but mean factual inferences plus factual material which led to such
factual inferences.
The grounds must be self-sufficient and self
explanatory. In our view copies of documents to which 463 reference is made in
the 'grounds' must be supplied to the detenu as part of the 'grounds'."
The Court, therefore, clearly held that the documents and materials relied upon
in the order of detention formed an integral part of the grounds and must be
supplied to the detenu pari passu the grounds of detention. If the documents
and materials are supplied later, then the detenu is deprived of an opportunity
of making an effective representation against the order of detention. In this
case, the court relied upon the ratio in Icchu Devi Choraria's case (supra)
extracted above. We find ourselves in complete agreement with the view
expressed by the two decisions of this Court and we are unable to accede to the
prayer of Mr. Rana for sending the case for reconsideration to a larger Bench.
This Court has invariably laid down that before an order of detention can be
supported, the constitutional safeguards must be strictly observed.
This Court in Maneka Gandhi v. Union of India
has widened the horizon of Art. 21 and added new dimensions to various features
of and concept of liberty enshrined in Art. 21. In view of the decision in the
aforesaid case, Art. 22(5) of the Constitution assumes a new complexion and has
to be construed liberally and meaningfully so as to permit the legislature to
impose the minimum possible curbs on the precious rights of a citizen, by
virtue of preventive detention. If a procedure under Art. 21 has to be
reasonable, fair and just, then the words 'effective representation' appearing
in Art. 22(5) must be construed so as to provide a real and meaningful
opportunity to detenu to explain his case to the detaining authority in his
representation. If the words 'effective representation' are interpreted in an
artificial or fanciful manner, then it would defeat the very object not only of
Art. 22(5) but also of Art. 21 of the Constitution.
Thus, we are of the opinion that in view of
what has been laid down in Mankea Gandhi's case (supra) and in a number of
other cases following the aforesaid decision, the law of preventive detention
has now to satisfy a twofold test : (1) that the protection and the guarantee
afforded under Art. 22(5) is complied with, and (2) that the procedure is just
and reasonable. In this view of the matter unless the materials and documents
relied on in the order of detention are supplied to the detenu alongwith the
grounds, the supply of grounds simpliciter would give him not a real but merely
an illusory opportunity to make a representation to the detaining authority.
464 It is well settled that the Court frowns
on preventive detention without trial because the detenu is deprived of the
right of proving his innocence in a trial by a court of law. It is, therefore,
of the utmost importance that all the necessary safeguards laid down by the
Constitution under Art. 21 or Art. 22(5) should be complied with fully and
strictly and any departure from any of the safeguards would void the order of
detention. This is so because in a civilised society, like ours, liberty of a
citizen is a highly precious right and a prized possession and has to be
protected unless it becomes absolutely essential to detain a person in order to
prevent him from indulging in anti- national activities like smuggling, etc. We
are fortified in our view by a decision of this Court in Sampat Prakash v. State
of Jammu & Kashmir where the following observations were made:
"that the restrictions placed on a
person preventively detained must, consistently with the effectiveness of
detention, be minimal." It is a matter of great concern and deep dismay
that despite repeated warnings by this Court, the detaining authorities do not
care to comply with the spirit and tenor of the constitutional safeguards
contained in Art. 22(5) of the Constitution. It is manifest that when the
detaining authority applies its mind to the documents and materials which form
the basis of the detention, the same are indeed placed before it and there
could be no difficulty in getting photo stat copies of the documents and
materials, referred to in the order of detention, prepared and attaching the
same along with the grounds of detention, if the detaining authority is really
serious in passing a valid order of detention. Unfortunately, the
constitutional safeguards are not complied with, resulting in the orders of
detention being set aside by the Court, even though on merits they might have
been justified in suitable cases. We feel that it is high time that the
Government should impress on the detaining authority the desirability of
complying with the constitutional safeguards as adumbrated by the principles
laid down in this regard. We would like to suggest that whenever a detention is
struck down by the High Court or the Supreme Court, the detaining authority or
the officers concerned who are associated with the preparation of the grounds
of detention, must be held personally responsible and action should be taken
against them for not complying with the constitutional requirements and
safeguards (viz.
delay in disposing of the representation, not
supplying the documents and materials relied upon in the order of detention
pari passu the order of detention, etc. etc.) or, at any rate, an explanation
from the authorities concerned must be called for by the Central Government so
that in future persons against whom serious acts of smuggling are alleged, do
not go scot free. In the instant case, not only were the documents and
materials not supplied along with the order of detention, but there has been a
delay of about 25 days in disposing of the representation of the detenu and no
explanation for the same has been given. These are matters which must be
closely examined by the Government.
For the reasons given above, we hold that the
continued detention of the detenu is void. We allow the petition and direct the
detenu to be released forthwith. A copy of this judgment be sent to the Home
Ministers of all the State Governments, Hon'ble the Home Minister of the
Government of India and also the Hon'ble Finance Minister, Government of India
for necessary action.
P.B.R. Petition allowed.
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