PETITIONER:
RAMCHANDRA A. KAMAT
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT20/02/1980
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
FAZALALI, SYED MURTAZA
KOSHAL, A.D.
CITATION:
1980 AIR 765 1980 SCR (2)1072
1980 SCC (2) 270
CITATOR INFO :
R 1980 SC 894 (4)
RF 1980 SC1983 (8)
RF 1981 SC 28 (13)
R 1981 SC 92 (9)
R 1981 SC 510 (10,11)
R 1981 SC1077 (1)
R 1981 SC1621 (12)
R 1981 SC2166 (15)
RF 1982 SC1500 (7)
RF 1991 SC2261 (7)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act 1974, Section 3-Delay by detaining
authority in furnishing copies of statements and documents
referred to in the order of detention-Detention whether
vitiated.
HEADNOTE:
The petitioner was directed to be detained by an order
dated August 31, 1979 under section 3(1) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 and in pursuance thereof was arrested on September
5, 1979. He was served with the grounds of detention on the
same day. The petitioner's advocate wrote a letter dated
September 7, 1979 to the detaining authority-second
respondent stating that it was not possible to make an
effective representation without the copies of statements
and documents referred to in detention order. The detaining
authority did not take any action on the letter but
forwarded it to the Deputy Secretary to the Government of
India who by a communication dated September 10, 1979
acknowledged its receipt and requested the advocate to
contact the Deputy Director, Directorate of Enforcement,
Bombay regarding the supply of copies of statements and
documents. As no further communication was received, the
advocate addressed a letter dated September 14, 1979 to the
Deputy Director to supply him copies of the statements and
documents. The Deputy Director in his communication dated
September 22, 1979 requested the advocate to see him on
September 24, 1979 to take inspection of the documents. On
inspecting the documents the advocate was not satisfied and
insisted on supply of copies of documents, which were
supplied on three days, September 26, 1979, September 28,
1979 and September 29, 1979. On October 5, 1979 the
petitioner made his representation against the detention.
In the writ petition, it was contended on behalf of the
petitioner that as there was unreasonable delay in
furnishing of the statements and documents referred to in
the grounds of detention and the right to make an effective
representation was denied, the detention could not be said
to be according to the procedure prescribed by law. On
behalf of the detaining authority it was contended that the
constitutional right of the petitioner to make an effective
representation had not been infringed and that it was not
incumbent upon the detaining authority to supply copies of
all documents relied upon in the grounds of detention and
that the grounds of detention were sufficiently detailed so
as to enable the petitioner to make an effective
representation against the detention.
Allowing the petition,
^
HELD: 1. The detaining authority failed to act with
reasonable expedition in furnishing the statements and
documents referred to in the grounds of detention. The
detention is therefore not in accordance with the procedure
contemplated under law, and the continued detention is not
warranted. [1077G]
2. It is settled law that the appropriate authority is
bound to give an opportunity to the detenu to make
representation and to consider the representation
1073
of the detenu as early as possible. There should not be any
delay in the matter of consideration. [1074G]
Jayanarayan Sukul v. State of West Bengal, [1970] 3 SCR
225, referred to.
3. (i) The right to make a representation is a
fundamental right. The representation thus made should be
considered expeditiously by the Government. In order to make
an effective representation, the detenu is entitled to
obtain information relating to the grounds of detention.
When the grounds of detention are served on the detenue he
is entitled to ask for copies of the statements and
documents referred to in the grounds of detention to enable
him to make an effective representation. When the detenu
makes a request for such documents, they should be supplied
to him expeditiously. [1075E]
(ii) When the Act contemplates the furnishing of
grounds of detention within five days of the order of
detention, the intention is clear that the statements and
documents which are referred to in the grounds of detention
and which are required by the detenu should be furnished
with reasonable expedition. [1076B]
4. If there is undue delay in furnishing the statements
and documents referred to in the grounds of detention the
right to make an effective representation is denied. It is
the duty of the detaining authority to satisfactorily
explain the delay, if any, in furnishing of the documents.
[1076A, 1075G]
5. It may not be necessary for the detaining authority
to supply copies of the documents relied upon in the grounds
of detention at the time when the ground are furnished to
the detenu but once the detenu states that for effective
representation it is necessary that he should have copies of
the statements and documents 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 copies of the documents
on the ground that the grounds were sufficiently detailed to
enable the petitioner to make an effective representation.
[1077D-E]
JUDGMENT:
(ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 1323
of 1979.
(Under Article 32 of the Constitution.)
Ram Jethamalani and Harjinder Singh and M. M. Lodha for
the Petitioner.
U.R. Lalit, A. V. Rangam and M. N. Shroff for the
Respondent.
The Judgment of the Court was delivered by
KAILASAM, J.-The Petitioner Ramchandra A. Kamat has
preferred this petition under Art. 32 of the Constitution of
India praying for the issue of writ of Habeas Corpus
directing his release by quashing the order of his detention
dated 31-8-1979 passed by second respondent, Additional
Secretary to the Government of India, Ministry of Finance.
The petitioner was directed to be detained by an order
dated 31st August, 1979 under S. 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974. In pursuance of the order, the petitioner was arrested
on 5-9-1979. He was served with the grounds of detention on
the same day. The Petitioner through his advocate by a
letter dated 7-9-1979 wrote to the second
1074
respondent stating that it was found that the detaining
authority relied upon a number of statements of various
persons including the detenu as well as documents referred
to in the grounds, but the detenu was not furnished with the
copies of the same. The Advocate stated that detenu desires
to make a representation against the order of detention but
found that without the copies of documents referred to in
the grounds of detention order it is not possible to make an
effective representation. A reply to his letter was sent to
the Advocate by Mr. Thawani, Deputy Secretary to the
Government of India, wherein he acknowledged the receipt of
the letter of the Advocate dated 7-9-1979. By this letter
the Deputy Secretary requested the Advocate to contact the
Deputy Director, Directorate of Enforcement, Bombay, who it
was stated, had been suitably advised regarding supply of
copies of statements and documents, relied upon in the
detention order dated 31-8-1979. It may be noted that the
detaining authority, the second respondent did not
acknowledge the letter from the detenu’s advocate or take
any action by himself but directed the Deputy Secretary to
address the communication dated 10-9-1979 referred to above.
Though the letter states that the Deputy Director, Bombay
has been suitably advised regarding the request for supply
of copies of statements and documents relied on in the
detention order nothing further was done by the Deputy
Director of Enforcement, Bombay. On the 14th September,
1979, the advocate not having received any communication,
addressed a letter to the Deputy Director enclosing a copy
of the letter which he received from the Deputy Secretary
and requested the Deputy Director to supply him on behalf of
his client copies of the relevant statements and documents
referred to and relied upon in the order of detention at an
early date. In reply to the letter of 14-9-79 by the
Advocate, the Deputy Director in his communication dated 22-
9-1979 requested the advocate to see the Deputy Director on
24-9-1979 at 1430 hours to take inspection of the documents.
On inspecting the documents the advocate was not satisfied
and insisted on supply of copies of documents and ultimately
copies were supplied on 3 days, namely, on 26-9-79, 28-9-79
and 29-9-79. The representation was made by the detenu on 5-
10-79.
It is settled law that the appropriate authority is
bound to give an opportunity to the detenu to make
representation and to consider the representation of the
detenu as early as possible. There should not be any delay
in the matter of consideration.
The Constitutional Bench of this Court in Jayanarayan
Sukul v. State of West Bengal(1) has held that the
fundamental right of the detenu to have representation
considered by the appropriate Govern-
1075
ment will render meaningless if the Government will not deal
with the matter expeditiously. The Court observed:
“It is established beyond any measure of doubt
that the appropriate authority is bound to consider the
representation of the detenu as early as possible. The
appropriate Government itself is bound to consider the
representation as expeditiously as possible. The reason
for immediate consideration of the representation is
too obvious to be stressed. The personal liberty of a
person is at stake. Any delay would not only be an
irresponsible act on the part of the appropriate
authority but also unconstitutional because the
Constitution enshrines the fundamental right of a
detenu to have his representation considered and it is
imperative that when the liberty of a person is in
peril immediate action should be taken by the relevant
authorities.
The same view has been expressed by this Court in a
number of cases vide Seervai’s Constitutional Law of India,
Vol. I, page 542, paragraph 12.82.
The right to make a representation is a fundamental
right. The representation thus made should be considered
expeditiously by the Government. In order to make an
effective representation, the detenu is entitled to obtain
information relating to the grounds of detention. When the
grounds of detention are served on the detenu, he is
entitled to ask for copies of the statements and documents
referred to in the grounds of detention to enable him to
make an effective representation. When the detenu makes a
request for such documents, they should be supplied to him
expeditiously. The detaining authority in preparing the
grounds would have referred to the statements and documents
relied on in the grounds of detention and would be
ordinarily available with him-when copies of such documents
are asked for by the detenu the detaining authority should
be in a position to supply them with reasonable expedition.
What is reasonable expedition will depend on the facts of
each case.
It is alleged by the detenu that there had been
unreasonable delay in furnishing of the statements and
documents referred to in the grounds of detention. It is the
duty of the detaining authority to satisfactorily explain
the delay, if any, in furnishing of these documents. We are
in this context not referring to the statements and
documents not referred to in the grounds of detention for it
may be that they are not in the possession of the detaining
authority and that reasonable time may be required for
furnishing copies of the relevant documents, which may not
be in his possession.
1076
If there is undue delay in furnishing the statements
and documents referred to in the grounds of detention the
right to make effective representation is denied. The
detention cannot be said to be according to the procedure
prescribed by law. When the Act contemplates the furnishing
of grounds of detention ordinarily within five days of the
order to detention, the intention is clear that the
statements and documents which are referred to in the
grounds of detention and which are required by the detenu
and are expected to be in possession of the detaining
authority should be furnished with reasonable expedition.
It will have to be considered on the facts of the case
whether there was any unexplained delay in furnishing the
statements and documents relied on in the grounds of
detention. The detenu was arrested on 5-9-1979 and his
advocate by a letter dated 7-9-1979 Annexure ‘C’ to the writ
petition wrote to the detaining authority stating that for
making an effective representation, he must have copies of
statements and documents referred to in the detention order.
He prayed that the copies of the statements and documents
may be furnished to him. This letter was received by the
detaining authority on the 10th of September, 1979 and a
communication was addressed not by the detaining authority
but by Mr. Thawani, Deputy Secretary on the same date. It is
not clear whether the detaining authority applied his mind
and realised the necessity for furnishing of the documents
to the detenu expeditiously. The communication was addressed
by the Deputy Secretary to the Advocate of the detenu
informing him that the Deputy Director of Enforcement at
Bombay had been suitably advised regarding the request for
supply of copies of statements and documents relied on in
the detention order. One would have expected that the
detaining authority or the Deputy Secretary acting on his
behalf, to have directed the Deputy Director of Enforcement,
Bombay to furnish the necessary documents expeditiously to
the Advocate as requested or to the detenu himself. The
direction in the communication from the Deputy Secretary was
not immediately complied with. The Advocate for the detenu
wrote again on the 14th September, 1979 reminding the Deputy
Director of the communications, he had received from the
Deputy Secretary. The Advocate requested that the copies of
the relevant statements and documents referred to and relied
upon in the detention order may be supplied to him. This
letter was replied by the Deputy Director on the 22nd
September, 1979 in which the Advocate was asked to have
inspection of the documents in his premises, between 1430
hours on 24-9-1979. The copies of the statements and
documents requested by the Advocate for the detenu and
directed by the Deputy Secretary to be furnished to the
Advocate were not furnished to him instead the Deputy
Director asked the Advocate to
1077
have inspection at the Deputy Director’s office. After
inspecting the documents on 22/24/25-9-1979, he insisted of
having copies which were supplied on the 26th, 27th and 28th
of September, 1979.
The explanation given by the detaining authority
regarding the delay in furnishing copies as seen in his
counter affidavit is that the constitutional right of the
petitioner to make effective representation had not been
infringed. According to the detaining authority “it was not
incumbent upon the detaining authority to supply copies of
all the documents relied upon in the grounds of detention to
the petitioner alongwith the grounds within 5 days of
detention as petitioner has contended. In this context it
would be relevant to state that the grounds were
sufficiently detailed so as to enable the petitioner to make
an effective representation against the detention.” He
further stated that all steps were taken to comply as
expeditiously as possible. It may not be necessary for the
detaining authority to supply copies of all the documents
relied upon in the grounds of detention at the time when the
grounds are furnished to the detenu but once the detenu
states that for effective representation it is necessary
that he should have copies of the statements and documents
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 copies of the documents on the ground that the
grounds were sufficiently detailed to enable the petitioner
to make an effective representation. In this case, the
detaining authority should have taken reasonable steps to
provide the detenu or his advocate with the statements and
documents as early as possible. The reply to the detenu was
not sent by the detaining authority and it is not clear
whether he appreciated the necessity to act expeditiously.
As noted already, a communication was sent by the Deputy
Secretary to the Deputy Director, who did not comply with
the direction and furnish copies of the statements and
documents. After a lapse of 12 days i.e. on 22-9-1979, the
Deputy Director offered inspection.
Taking into account the facts and circumstances of the
case and explanation furnished by the detaining authority,
we are of the view that the detaining authority failed to
act with reasonable expedition in furnishing the statements
and documents referred to in the grounds of detention. On
the facts of the case, therefore, we are satisfied that the
detention is not in accordance with the procedure
contemplated under law. The continued detention is not
warranted. The order of his release has already been issued
by this Court.
N.V.K. Petition allowed.
1078