JUDGMENT
S.P. Bharucha, J.
1. This is a habeas corpus petition in respect of one Raghunath Sakharam Pawar. He is the brother of the petitioner. On 17th October, 1980 he was detained. He was served with an order of detention dated 30th September, 1980 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (now referred to as “COFEPOSA”) he was also served with the grounds of detention dated 30th September, 1980.
2. On 10th November, 1980 the detenu made a representation to the Under-Secretary to the Government of Maharashtra, Home Department (Special) against the said detention. On 28th November, 1980 the representation was rejected.
3. On 28th November, 1980 the detenu was brought to the Arthur Road jail from the Nasik Road Central Prison. He was to appear before the Advisory Board under COFEPOSA on 30th November, 1980. On 28th November in the Arthur Road jail he was served with a communication dated 27th October, 1980. That communication makes reference to the grounds of detention dated 30th September, 1980; therewith copies of 4 documents relied upon in the grounds of detention are enclosed.
4. Delay in furnishing to the detenu copies of documents relied upon in the grounds of detention has been made the principal basis for challenging the order of detention. Mr. Mehta, appearing on behalf of the petitioner, has drawn our attention to a series of rulings of the Supreme Court in recent months dealing with the point.
5. In Smt. Icchu Devi v. Union of India, , the Supreme Court said that on a proper construction of Article 22, Clause (5) read with section 3(3) of COFEPOSA it was necessary, for the valid continuance of the detention, that, subject to Article 22, Clause (6), copies of documents, statements and other material 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 5 days and, in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention.
6. In Mangalbhai Motiram Patel v. State of Maharashtra, , three learned Judges of the Supreme Court recorded the Court’s repeated requirement that the detenu should be furnished as soon as practicable after the detention with the grounds on which the order of detention had been made and that, as he had the right to make a representation against the order of detention at the earliest opportunity, he should be furnished with the grounds of detention along with the documents therein relied upon. This, substantially, has also been said in Shalini Soni v. Union of India, .
7. In the instant case, the grounds of detention are dated 30th September, 1980. They were served on the detenu on 17th October, 1980. The detenu was then entitled to have copies of documents upon which the grounds of detention were based. These were not given. In fact, copies of these documents were not forwarded to the detenu until 27th October, 1980. They were then sent with a communication which bore the date 27th October, 1980. It is incredible that the communication which bore the date 27th October, 1980, along with the copies, should not have been served on the detenu, who was in jail and thus in the custody of the respondents for the period of one month. They were served on him two days before he was to appear before the Advisory Board. There is, in the circumstances, not a shadow of doubt that the continued detention of the detenu is illegal and that he is entitled to be released.
8. This is a matter in which the following observations of the Supreme Court, in original Jurisdiction Writ Petition No. 5873 of 1980 Kamla Kanyalal Khushlani v. State of Maharashtra, made on 6th January, 1981, apply and deserve to be reproduced :
“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 Article 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 photostat 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 case. 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.”
We respectfully agree, we do believe that time and again detentions which might well be in the public interest are being rendered nugatory by the failure of the authorities to accord the constitutional requirements the most elementary degree of diligence.
9. We are informed that the detenu in the instant case is an under-trial prisoner in a criminal proceeding and that the next date of the hearing therein is 27th instant. We direct that the detenu should be released if he obtains bail in those proceedings either on the 27th instant or earlier. Till he is released on bail the detenu shall be held at the Arthur Road prison. Rule absolute. Order to be communicated to the Arthur Road prison.