{"id":235543,"date":"1980-02-20T00:00:00","date_gmt":"1980-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramchandra-a-kamat-vs-union-of-india-and-ors-on-20-february-1980"},"modified":"2018-05-08T19:07:10","modified_gmt":"2018-05-08T13:37:10","slug":"ramchandra-a-kamat-vs-union-of-india-and-ors-on-20-february-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramchandra-a-kamat-vs-union-of-india-and-ors-on-20-february-1980","title":{"rendered":"Ramchandra A. Kamat vs Union Of India And Ors on 20 February, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramchandra A. Kamat vs Union Of India And Ors on 20 February, 1980<\/div>\n
Equivalent citations: 1980 AIR 765, \t\t 1980 SCR (2)1072<\/div>\n
Author: P Kailasam<\/div>\n
Bench: Kailasam, P.S.<\/div>\n
           PETITIONER:\nRAMCHANDRA A. KAMAT\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT20\/02\/1980\n\nBENCH:\nKAILASAM, P.S.\nBENCH:\nKAILASAM, P.S.\nFAZALALI, SYED MURTAZA\nKOSHAL, A.D.\n\nCITATION:\n 1980 AIR  765\t\t  1980 SCR  (2)1072\n 1980 SCC  (2) 270\n CITATOR INFO :\n R\t    1980 SC 894\t (4)\n RF\t    1980 SC1983\t (8)\n RF\t    1981 SC  28\t (13)\n R\t    1981 SC  92\t (9)\n R\t    1981 SC 510\t (10,11)\n R\t    1981 SC1077\t (1)\n R\t    1981 SC1621\t (12)\n R\t    1981 SC2166\t (15)\n RF\t    1982 SC1500\t (7)\n RF\t    1991 SC2261\t (7)\n\n\nACT:\n     Conservation of  Foreign  Exchange\t and  Prevention  of\nSmuggling Activities  Act 1974, Section 3-Delay by detaining\nauthority in  furnishing copies\t of statements and documents\nreferred to  in the  order  of\tdetention-Detention  whether\nvitiated.\n\n\n\nHEADNOTE:\n     The petitioner  was directed to be detained by an order\ndated August 31, 1979 under section 3(1) of the Conservation\nof Foreign  Exchange and  Prevention of Smuggling Activities\nAct, 1974 and in pursuance thereof was arrested on September\n5, 1979.  He was served with the grounds of detention on the\nsame day.  The petitioner's  advocate wrote  a letter  dated\nSeptember  7,\t1979  to   the\tdetaining   authority-second\nrespondent stating  that it  was not  possible\tto  make  an\neffective representation  without the  copies of  statements\nand documents  referred to in detention order. The detaining\nauthority  did\tnot  take  any\taction\ton  the\t letter\t but\nforwarded it  to the  Deputy Secretary\tto the Government of\nIndia who  by  a  communication\t dated\tSeptember  10,\t1979\nacknowledged its  receipt  and\trequested  the\tadvocate  to\ncontact the  Deputy Director,  Directorate  of\tEnforcement,\nBombay regarding  the supply  of copies\t of  statements\t and\ndocuments. As  no further  communication was  received,\t the\nadvocate addressed  a letter dated September 14, 1979 to the\nDeputy Director\t to supply  him copies of the statements and\ndocuments. The\tDeputy Director\t in his\t communication dated\nSeptember 22,  1979 requested  the advocate  to see  him  on\nSeptember 24,  1979 to\ttake inspection of the documents. On\ninspecting the\tdocuments the advocate was not satisfied and\ninsisted on  supply  of\t copies\t of  documents,\t which\twere\nsupplied on  three days,  September 26,\t 1979, September 28,\n1979  and  September  29,  1979.  On  October  5,  1979\t the\npetitioner made his representation against the detention.\n     In the writ petition, it was contended on behalf of the\npetitioner  that   as  there   was  unreasonable   delay  in\nfurnishing of  the statements  and documents  referred to in\nthe grounds  of detention and the right to make an effective\nrepresentation was  denied, the\t detention could not be said\nto be  according to  the procedure  prescribed\tby  law.  On\nbehalf of  the detaining authority it was contended that the\nconstitutional right  of the petitioner to make an effective\nrepresentation had  not been  infringed and  that it was not\nincumbent upon\tthe detaining  authority to supply copies of\nall documents  relied upon  in the  grounds of detention and\nthat the  grounds of detention were sufficiently detailed so\nas  to\t enable\t the   petitioner  to\tmake  an   effective\nrepresentation against the detention.\n     Allowing the petition,\n^\n     HELD: 1.  The detaining  authority failed\tto act\twith\nreasonable  expedition\tin  furnishing\tthe  statements\t and\ndocuments referred  to in  the\tgrounds\t of  detention.\t The\ndetention is  therefore not in accordance with the procedure\ncontemplated under  law, and  the continued detention is not\nwarranted. [1077G]\n     2. It  is settled law that the appropriate authority is\nbound  to   give  an  opportunity  to  the  detenu  to\tmake\nrepresentation and to consider the representation\n1073\nof the\tdetenu as early as possible. There should not be any\ndelay in the matter of consideration. [1074G]\n     Jayanarayan Sukul v. State of West Bengal,<\/a> [1970] 3 SCR\n225, referred to.\n     3.\t (i)  The  right  to  make  a  representation  is  a\nfundamental right.  The representation\tthus made  should be\nconsidered expeditiously by the Government. In order to make\nan effective  representation,  the  detenu  is\tentitled  to\nobtain information  relating to\t the grounds  of  detention.\nWhen the  grounds of  detention are served on the detenue he\nis  entitled  to  ask  for  copies  of\tthe  statements\t and\ndocuments referred  to in the grounds of detention to enable\nhim to\tmake an\t effective representation.  When the  detenu\nmakes a\t request for such documents, they should be supplied\nto him expeditiously. [1075E]\n     (ii)  When\t the  Act  contemplates\t the  furnishing  of\ngrounds of  detention within  five  days  of  the  order  of\ndetention, the\tintention is  clear that  the statements and\ndocuments which\t are referred to in the grounds of detention\nand which  are required\t by the\t detenu should\tbe furnished\nwith reasonable expedition. [1076B]\n     4. If there is undue delay in furnishing the statements\nand documents  referred to  in the  grounds of detention the\nright to  make an  effective representation is denied. It is\nthe  duty  of  the  detaining  authority  to  satisfactorily\nexplain the  delay, if\tany, in furnishing of the documents.\n[1076A, 1075G]\n     5. It  may not be necessary for the detaining authority\nto supply copies of the documents relied upon in the grounds\nof detention  at the  time when\t the ground are furnished to\nthe detenu  but once  the detenu  states that  for effective\nrepresentation it is necessary that he should have copies of\nthe statements\tand documents  referred to in the grounds of\ndetention it  is the  duty of  the  detaining  authority  to\nfurnish\t them  with  reasonable\t expedition.  The  detaining\nauthority cannot  decline to furnish copies of the documents\non the ground that the grounds were sufficiently detailed to\nenable the  petitioner to  make an effective representation.\n[1077D-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
     (ORIGINAL JURISDICTION:  Writ Petition  (Crl.) No. 1323
\nof 1979.\n<\/p>\n
     (Under Article 32 of the Constitution.)
\n     Ram Jethamalani and Harjinder Singh and M. M. Lodha for
\nthe Petitioner.\n<\/p>\n
     U.R. Lalit,  A. V.\t Rangam and  M. N.  Shroff  for\t the
\nRespondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KAILASAM, J.-The  Petitioner Ramchandra  A.  Kamat\t has
\npreferred this petition under Art. 32 of the Constitution of
\nIndia praying  for  the\t issue\tof  writ  of  Habeas  Corpus
\ndirecting his release by quashing the order of his detention
\ndated 31-8-1979\t passed\t by  second  respondent,  Additional
\nSecretary to the Government of India, Ministry of Finance.\n<\/p>\n
     The petitioner  was directed to be detained by an order
\ndated 31st August, 1979 under S. 3(1) of the Conservation of
\nForeign Exchange and Prevention of Smuggling Activities Act,
\n1974. In pursuance of the order, the petitioner was arrested
\non 5-9-1979.  He was served with the grounds of detention on
\nthe same  day. The  Petitioner through\this  advocate  by  a
\nletter dated 7-9-1979 wrote to the second
\n1074<\/span>
\nrespondent stating  that it  was found\tthat  the  detaining
\nauthority relied  upon a  number of  statements\t of  various
\npersons including  the detenu  as well as documents referred
\nto in the grounds, but the detenu was not furnished with the
\ncopies of  the same. The Advocate stated that detenu desires
\nto make\t a representation against the order of detention but
\nfound that  without the\t copies of  documents referred to in
\nthe grounds of detention order it is not possible to make an
\neffective representation.  A reply to his letter was sent to
\nthe  Advocate  by  Mr.\tThawani,  Deputy  Secretary  to\t the
\nGovernment of  India, wherein he acknowledged the receipt of
\nthe letter  of the  Advocate dated  7-9-1979. By this letter
\nthe Deputy  Secretary requested\t the Advocate to contact the
\nDeputy Director,  Directorate of Enforcement, Bombay, who it
\nwas stated,  had been  suitably advised\t regarding supply of
\ncopies of  statements and  documents,  relied  upon  in\t the
\ndetention order\t dated 31-8-1979.  It may  be noted that the
\ndetaining  authority,\tthe  second   respondent   did\t not
\nacknowledge the\t letter from  the detenu’s  advocate or take
\nany action  by himself\tbut directed the Deputy Secretary to
\naddress the communication dated 10-9-1979 referred to above.
\nThough the  letter states  that the  Deputy Director, Bombay
\nhas been  suitably advised  regarding the request for supply
\nof copies  of statements  and documents\t relied\t on  in\t the
\ndetention order\t nothing further  was  done  by\t the  Deputy
\nDirector of  Enforcement, Bombay.  On  the  14th  September,
\n1979, the  advocate not\t having received  any communication,
\naddressed a  letter to\tthe Deputy Director enclosing a copy
\nof the\tletter which  he received  from the Deputy Secretary
\nand requested the Deputy Director to supply him on behalf of
\nhis client  copies of  the relevant statements and documents
\nreferred to  and relied upon in the order of detention at an
\nearly date.  In reply  to  the\tletter\tof  14-9-79  by\t the
\nAdvocate, the Deputy Director in his communication dated 22-
\n9-1979 requested  the advocate to see the Deputy Director on
\n24-9-1979 at 1430 hours to take inspection of the documents.
\nOn inspecting  the documents  the advocate was not satisfied
\nand insisted on supply of copies of documents and ultimately
\ncopies were  supplied on 3 days, namely, on 26-9-79, 28-9-79
\nand 29-9-79. The representation was made by the detenu on 5-
\n10-79.\n<\/p>\n
     It is  settled law\t that the  appropriate authority  is
\nbound  to   give  an  opportunity  to  the  detenu  to\tmake
\nrepresentation and  to consider\t the representation  of\t the
\ndetenu as  early as  possible. There should not be any delay
\nin the matter of consideration.\n<\/p>\n
     The Constitutional\t Bench of  this Court in Jayanarayan
\nSukul  v.   State  of  West  Bengal<\/a>(1)\thas  held  that\t the
\nfundamental right  of  the  detenu  to\thave  representation
\nconsidered by the appropriate Govern-\n<\/p>\n
1075<\/span><\/p>\n
ment will render meaningless if the Government will not deal
\nwith the matter expeditiously. The Court observed:\n<\/p>\n
\t  “It is  established beyond  any measure  of  doubt
\n     that the appropriate authority is bound to consider the
\n     representation of\tthe detenu as early as possible. The
\n     appropriate Government  itself is bound to consider the
\n     representation as expeditiously as possible. The reason
\n     for immediate  consideration of  the representation  is
\n     too obvious  to be\t stressed. The personal liberty of a
\n     person is\tat stake.  Any delay  would not\t only be  an
\n     irresponsible  act\t on  the  part\tof  the\t appropriate
\n     authority\tbut   also  unconstitutional   because\t the
\n     Constitution  enshrines  the  fundamental\tright  of  a
\n     detenu to\thave his representation considered and it is
\n     imperative that  when the\tliberty of  a person  is  in
\n     peril immediate  action should be taken by the relevant
\n     authorities.<\/p><\/blockquote>\n
     The same  view has\t been expressed\t by this  Court in a
\nnumber of  cases vide Seervai’s Constitutional Law of India,
\nVol. I, page 542, paragraph 12.82.\n<\/p>\n
     The right\tto make\t a representation  is a\t fundamental
\nright. The  representation thus\t made should  be  considered
\nexpeditiously  by  the\tGovernment.  In\t order\tto  make  an
\neffective representation,  the detenu  is entitled to obtain
\ninformation relating  to the  grounds of detention. When the
\ngrounds of  detention  are  served  on\tthe  detenu,  he  is
\nentitled to  ask for  copies of the statements and documents
\nreferred to  in the  grounds of\t detention to  enable him to
\nmake an\t effective representation.  When the  detenu makes a
\nrequest for  such documents,  they should be supplied to him
\nexpeditiously. The  detaining  authority  in  preparing\t the
\ngrounds would  have referred to the statements and documents
\nrelied\ton   in\t the  grounds  of  detention  and  would  be
\nordinarily available  with him-when copies of such documents
\nare asked  for by  the detenu the detaining authority should
\nbe in  a position to supply them with reasonable expedition.
\nWhat is\t reasonable expedition\twill depend  on the facts of
\neach case.\n<\/p>\n
     It is  alleged  by\t the  detenu  that  there  had\tbeen
\nunreasonable delay  in\tfurnishing  of\tthe  statements\t and
\ndocuments referred to in the grounds of detention. It is the
\nduty of\t the detaining\tauthority to  satisfactorily explain
\nthe delay,  if any, in furnishing of these documents. We are
\nin  this   context  not\t referring  to\tthe  statements\t and
\ndocuments not referred to in the grounds of detention for it
\nmay be\tthat they are not in the possession of the detaining
\nauthority and  that reasonable\ttime  may  be  required\t for
\nfurnishing copies  of the  relevant documents, which may not
\nbe in his possession.\n<\/p>\n
1076<\/span><\/p>\n
     If there  is undue\t delay in  furnishing the statements
\nand documents  referred to  in the  grounds of detention the
\nright  to  make\t effective  representation  is\tdenied.\t The
\ndetention cannot  be said  to be  according to the procedure
\nprescribed by  law. When the Act contemplates the furnishing
\nof grounds  of detention  ordinarily within five days of the
\norder  to   detention,\tthe  intention\tis  clear  that\t the
\nstatements and\tdocuments  which  are  referred\t to  in\t the
\ngrounds of  detention and  which are  required by the detenu
\nand are\t expected to  be  in  possession  of  the  detaining
\nauthority should be furnished with reasonable expedition.\n<\/p>\n
     It will  have to be considered on the facts of the case
\nwhether there  was any\tunexplained delay  in furnishing the
\nstatements  and\t documents  relied  on\tin  the\t grounds  of
\ndetention. The\tdetenu was  arrested  on  5-9-1979  and\t his
\nadvocate by a letter dated 7-9-1979 Annexure ‘C’ to the writ
\npetition wrote\tto the\tdetaining authority stating that for
\nmaking an  effective representation,  he must have copies of
\nstatements and documents referred to in the detention order.
\nHe prayed  that the  copies of\tthe statements and documents
\nmay be\tfurnished to  him. This\t letter was  received by the
\ndetaining authority  on the  10th of  September, 1979  and a
\ncommunication was  addressed not  by the detaining authority
\nbut by Mr. Thawani, Deputy Secretary on the same date. It is
\nnot clear  whether the\tdetaining authority applied his mind
\nand realised  the necessity  for furnishing of the documents
\nto the detenu expeditiously. The communication was addressed
\nby the\tDeputy Secretary  to  the  Advocate  of\t the  detenu
\ninforming him  that the\t Deputy Director  of Enforcement  at
\nBombay had  been suitably  advised regarding the request for
\nsupply of  copies of  statements and  documents relied on in
\nthe detention  order.  One  would  have\t expected  that\t the
\ndetaining authority  or the  Deputy Secretary  acting on his
\nbehalf, to have directed the Deputy Director of Enforcement,
\nBombay to  furnish the\tnecessary documents expeditiously to
\nthe Advocate  as requested  or to  the detenu  himself.\t The
\ndirection in the communication from the Deputy Secretary was
\nnot immediately\t complied with.\t The Advocate for the detenu
\nwrote again on the 14th September, 1979 reminding the Deputy
\nDirector of  the communications,  he had  received from\t the
\nDeputy Secretary.  The Advocate requested that the copies of
\nthe relevant statements and documents referred to and relied
\nupon in\t the detention\torder may  be supplied\tto him. This
\nletter was  replied by\tthe  Deputy  Director  on  the\t22nd
\nSeptember, 1979\t in which  the Advocate\t was asked  to\thave
\ninspection of  the documents  in his  premises, between 1430
\nhours  on  24-9-1979.  The  copies  of\tthe  statements\t and
\ndocuments requested  by the  Advocate  for  the\t detenu\t and
\ndirected by  the Deputy\t Secretary to  be furnished  to\t the
\nAdvocate were  not  furnished  to  him\tinstead\t the  Deputy
\nDirector asked the Advocate to
\n1077<\/span>
\nhave inspection\t at  the  Deputy  Director’s  office.  After
\ninspecting the\tdocuments on 22\/24\/25-9-1979, he insisted of
\nhaving copies which were supplied on the 26th, 27th and 28th
\nof September, 1979.\n<\/p>\n
     The  explanation\tgiven  by  the\tdetaining  authority
\nregarding the  delay in\t furnishing copies  as seen  in\t his
\ncounter affidavit  is that  the constitutional\tright of the
\npetitioner to  make effective  representation had  not\tbeen
\ninfringed. According  to the detaining authority “it was not
\nincumbent upon\tthe detaining  authority to supply copies of
\nall the documents relied upon in the grounds of detention to
\nthe petitioner\talongwith  the\tgrounds\t within\t 5  days  of
\ndetention as  petitioner has  contended. In  this context it
\nwould  be   relevant  to   state  that\t the  grounds\twere
\nsufficiently detailed so as to enable the petitioner to make
\nan  effective  representation  against\tthe  detention.”  He
\nfurther stated\tthat all  steps\t were  taken  to  comply  as
\nexpeditiously as  possible. It\tmay not be necessary for the
\ndetaining authority  to supply\tcopies of  all the documents
\nrelied upon in the grounds of detention at the time when the
\ngrounds are  furnished to  the detenu  but once\t the  detenu
\nstates that  for effective  representation it  is  necessary
\nthat he\t should have  copies of the statements and documents
\nreferred to  in the  grounds of detention, it is the duty of
\nthe detaining  authority to  furnish  them  with  reasonable
\nexpedition.  The   detaining  authority\t cannot\t decline  to
\nfurnish copies\tof the\tdocuments on  the  ground  that\t the
\ngrounds were  sufficiently detailed to enable the petitioner
\nto make\t an effective  representation.\tIn  this  case,\t the
\ndetaining authority  should have  taken reasonable  steps to
\nprovide the  detenu or\this advocate with the statements and
\ndocuments as  early as possible. The reply to the detenu was
\nnot sent  by the  detaining authority  and it  is not  clear
\nwhether he  appreciated the  necessity to act expeditiously.
\nAs noted  already, a  communication was\t sent by  the Deputy
\nSecretary to  the Deputy  Director, who\t did not comply with
\nthe direction  and furnish  copies  of\tthe  statements\t and
\ndocuments. After  a lapse  of 12 days i.e. on 22-9-1979, the
\nDeputy Director offered inspection.\n<\/p>\n
     Taking into  account the facts and circumstances of the
\ncase and  explanation furnished\t by the detaining authority,
\nwe are\tof the\tview that  the detaining authority failed to
\nact with  reasonable expedition in furnishing the statements
\nand documents  referred to  in the  grounds of detention. On
\nthe facts  of the case, therefore, we are satisfied that the
\ndetention  is\tnot  in\t  accordance  with   the   procedure
\ncontemplated under  law.  The  continued  detention  is\t not
\nwarranted. The\torder of his release has already been issued
\nby this Court.\n<\/p>\n
N.V.K.\t\t\t\t\t   Petition allowed.\n1078<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramchandra A. Kamat vs Union Of India And Ors on 20 February, 1980 Equivalent citations: 1980 AIR 765, 1980 SCR (2)1072 Author: P Kailasam Bench: Kailasam, P.S. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-235543","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamchandra A. 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