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PETITIONER: GANGA RAMCHAND BHARVANI

       Vs.

RESPONDENT: UNDER SECRETARY TO THE GOVERNMENT OF MAHARASHTRA & ORS.

DATE OF JUDGMENT01/08/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH PATHAK, R.S.

CITATION:  1980 AIR 1744            1981 SCR  (1) 343  1980 SCC  (4) 624  CITATOR INFO :  RF         1981 SC 431  (9)

ACT:      Foreign Exchange  Prevention  of  Smuggling  Activities Act, 1974-Section 3(i)-Scope of.      Delay in  supplying grounds of detention-If invalidates detention.

HEADNOTE:      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

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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  v. The State of West Bengal & Ors. [1975] 2 S.C.R. 832. 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,

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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]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  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  Conservation of  Foreign Exchange  and Prevention of  Smuggling Activities  Act,  1974  (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

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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

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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

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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. 1980.  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

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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 v. 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

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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.  1980. had allowed the writ petitions and directed the release of the detention. N.K.A.    Petition allowed. 353