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PETITIONER: LALLUBHAI JOGIBHAI PATEL

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT15/12/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR  728            1981 SCR  (2) 352  1981 SCC  (2) 427  CITATOR INFO :  R          1981 SC1621  (8)  RF         1981 SC2084  (1)  R          1982 SC1500  (8)  RF         1990 SC 605  (6)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act 1974-Section  3-Scope of-Detenu if could file a second petition for writ of habeas corpus after dismissal of  the first petition-First petition, if operates as  constructive   res  judicata-Constitutional  imperatives under Art 22(5)- What are.      Constructive res  judicata-Grounds not taken in earlier petition for writ of habeas corpus-Second petition if barred by  constructive   res  judicata-If  applicable  in  illegal detentions.      Words  and  phrases-Commnunicate-Meaning  of-Explaining the grounds  of detention  without giving them to the detenu in writing-If amounts to communication.

HEADNOTE:      After dismissal by this Court of the petition impugning the  order   of  his   detention  under  section  3  of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act,  1974  the  petitioner  filed  the  present petition urging  additional grounds  which were not urged in the previous  petition. He  alleged  that  (i)  despite  his request for  the supply  of all the documents relied upon by the detaining authority while passing the order of detention the respondent  failed to  do so;  (ii)  that  many  of  the documents were either incomplete or had been wholly withheld and  in  particular  236  documents  out  of  460  documents purported to  have been  supplied to  him were not supplied; (iii) that though his representation dated July 17, 1980 for revocation of  the detention  order  was  forwarded  by  the jailer to the Central Government it had not been disposed of and (iv)  that lastly  serving the  grounds of  detention in English which  is a  language  not  known  to  him,  without supplying a  translation in  his mother tongue, was a breach of the  constitutional imperative embodied in Art. 22(5) and that for these reasons the order of detention should be held void.

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    A preliminary  objection was  raised on  behalf of  the respondent State  that the  present petition  was barred  as constructive res judicata.      Overruling the preliminary objection, ^      HELD: In  the present petition fresh additional grounds had been  taken by  the detenu  to challenge the legality of his  continued  detention.  Therefore  the  subsequent  writ petition is not barred as res judicata. [359 B-C]      1. By a long line of decisions this Court has held that the application of the doctrine of constructive res judicata is confined  to civil  actions and  civil proceedings.  This principle of  public policy  is  entirely  in-applicable  to illegal detentions  and does  not bar  a subsequent petition for the writ of habeas corpus 353 under Art.  32 of  the Constitution  on fresh  grounds which were not  taken in the earlier petition for the same relief. [359 A-B]      Ghulam Sarwar  v. Union of India & Ors. [1967] 2 S.C.R. 271, Daryao  v. State  of  Uttar  Pradesh  A.I.R.  1961  SC. 1457=[1962] 1  S.C.R. 574, Niranjan Singh v. State of Madhya Pradesh  [1973]   1  S.C.R.   691  and   Calcutta  Gas   Co. (Proprietary) Ltd. v. State of West Bengal, A.I.R. 1965 S.C. 596 referred to.      2(a). One of the constitutional imperatives embodied in Art 22(5)  of the Constitution is that all the documents and materials relied  upon by the detaining authority in passing the order  of detention  must be  supplied to  the detenu as soon as  practicable to  enable him  to  make  an  effective representation. [360 G]      In the  instant case  the materials and documents which were not  supplied to  the detenu  were a  part of the basic facts and  materials which should have been supplied to him, ordinarily within  5 days  of the order of detention and for exceptional reasons  to be  recorded, within  15 days of the commencement of  the detention. The respondent did not state that the documents which were not supplied were not relevant to the case of detenu. [362 C]      Smt. Icchu  Devi Choraria  v. Union  of  India  &  Ors. [1981] 1 SCR 640 applied.      (b) In  the first petition no specific ground was taken by the  detenu that documents covering 236 pages relied upon by the  detaining authority were suppressed and not supplied to him. He had now stated that he had come to know about the non-supply of  these documents  from  the  judgment  of  the Gujarat High  Court which was subsequent to the dismissal of his  earlier   petition.   This   assertion   has   remained unchallenged. [360 E-F]      (c) In  matters touching  the  personal  liberty  of  a person preventively  detained, the constitutional imperative in Art.  22(5) is that any representation made by the detenu should be  dealt with the utmost expedition which in this is has been honoured in breach. [362 E]      (d) Merely  explaining the  grounds of detention in the mother  tongue   of  the  detenu  would  not  be  sufficient compliance with  the mandate  of Art.  22(5) which  requires that the  grounds of  detention must  be communicated to the detenu. "Communicate"  is  a  strong  word.  It  means  that sufficient knowledge  of the  basic facts  constituting  the grounds should  be imparted  effectively and  fully  to  the detenu in writing in a language understood by him. Its whole purpose is  to enable him to make a purposeful and effective representation. If  the grounds  are only verbally explained without giving  them to him in writing in a language that he

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understands,   its   purpose   is   not   served   and   the constitutional mandate is infringed. [362G-H]      Haribandhu Das  v. District  Magistrate Cuttack  & Anr. [1969] 1 S.C.R. 227. Smt Razia Umar Bakshi v. Union of India [1980] 3  S.C.R. 1398  and Harikisan v. State of Maharashtra [1962] Supp. 2 S.C.R. 918 followed.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 4349 of 1980.      (Under Article 32 of the Constitution.) 354      M/s. Ram Jethmalani, Anil Dewan, Harjinder Singh and S. H. Sajanwala, for the Petitioner.      J. L.  Nain, Sushil  Kumar and  M. N.  Shroff  for  the Respondents.      The Judgment of the Court was delivered by      SARKARIA, J.-  By our  order dated  October 3, 1980, we had allowed  this writ  petition for  the issue of a writ of Habeas Corpus and directed the release of the detenu. We are now giving the reasons in support of that order.      On January 30, 1980, the petitioner, Lallubhai Jogibhai Patel was  served with  an order of detention, dated January 30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the Government of  Gujarat (Home  Department) under Section 3 of the Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act, 1974 (for short, the COFEPOSA).      The grounds of detention were also served on him on the same  day.  The  petitioner  challenged  the  order  of  his detention by  Writ Petition  No. 449  of 1980 in this Court. That petition  was dismissed by this Court by an order dated May 9,  1980, but  the reasons for that order were announced later  on  August  4,  1980.  After  the  dismissal  of  his petition, he  on July 21, 1980, filed additional grounds. He was on  July 30,  1980, informed that he may, if so advised, file a  fresh petition  on those additional grounds. That is how this  subsequent petition came to be filed on additional grounds which  were not  urged in the previous Writ Petition 449 of 1980.      A preliminary  objection was  raised on  behalf of  the respondent State  that this subsequent petition is barred as constructive res judicata. In this connection, reference has been made  to the decision of this Court in Ghulam Sarwar v. Union of India & Ors. and Seervai’s Constitutional Law.      In  reply,   Shri  Ram   Jethmalani,  counsel  for  the petitioner, contended  that  this  Court  cannot  refuse  to entertain a  second petition  for habeas  corpus on  a fresh ground which  could not,  for good  reasons, be taken in the earlier writ  petition, on  the ground  that it is barred by any doctrine of estoppel or constructive res judicata. It is stressed that  a preventive detention illegally continued is a continuous  wrong and  furnishes  a  continuous  cause  of action to the detenu to challenge the same on fresh grounds. In this connection, reference has been 355 made to  a Full  Bench decision  of the Punjab High Court in Ram Kumar  Pearay Lal  v.  District  Magistrate,  Delhi.  On facts, counsel  has tried  to distinguish  the decisions  of this Court  in Daryao v. State of Uttar Pradesh and Niranjan Singh v. State of Madhya Pradesh.      The preliminary  question, therefore,  to be considered is,  whether  the  doctrine  of  constructive  res  judicata applies to a subsequent petition for a writ of habeas corpus on a  ground which he "might and ought" to have taken in his

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earlier petition for the same relief. In England, before the Judicature Act,  1873, an  applicant for habeas corpus had a right to go from court to court, but not from one Bench of a court  to  another  Bench  of  the  same  Court.  After  the Judicature Act,  1873, this  right was  lost, and  no second application for  habeas corpus  can be  brought in  the same court, except on fresh evidence. In re Hastings (No. 3) Lord Parker, C.J.,  after surveying  the history  of the right of habeas corpus,  arrived at  the conclusion that it was never the law that in term time, successive writs of habeas corpus lay from  Judge to Judge. In re Hostings (No. 4). Harman, J. pointed out  that since the Judicature Act had abolished the three independent  courts, namely,  the Court  of Exchequer, the King’s  Bench Division,  and the  Common Pleas,  and had constituted one  High Court, when an application for writ of habeas corpus  has been disposed of by one Divisional Court, no second  application on  the same  ground lies  to another Divisional Court  of the High Court. This position was given statutory recognition  in the Administration of Justice Act, 1960.      In a  Full Bench  decision of  the Punjab  High  Court, which purports  to follow  these English  decisions and  two decisions of  this Court  in Daryao  v. State of U.P. (ibid) and Calcutta  Gas Co.  (Proprietary) Ltd.  v. State  of West Bengal, it was held as follows:           "No second petition for writ of habeas corpus lies      to the  High Court  on a  ground  on  which  a  similar      petition had  already  been  dismissed  by  the  Court.      However, a  second such  petition will lie when a fresh      and a  new ground  of attack  against the  legality  of      detention or  custody has  arisen after the decision on      the first petition, and also where for some exceptional      reason a ground has been omitted in an earlier 356      petition, in  appropriate circumstances, the High Court      will hear the second petition on such a ground for ends      of justice. In the last case, it is only a ground which      existed at  the time  of the  earlier petition, and was      omitted  from  it,  that  will  be  considered.  Second      petition will  not be  competent  on  the  same  ground      merely because  an additional  argument is available to      urge with regard to the same."      In Daryao’s case (ibid), Gajendragadkar, J. (as he then was), speaking  for the  Constitution Bench, held that where the High  Court dismisses  a writ petition under Article 226 of the  Constitution after  hearing the matter on the merits on the  ground that  no  fundamental  right  was  proved  or contravened or  that its  contravention was constitutionally justified, a  subsequent petition to the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs  filed by the same party would be barred by the general principle  of res judicata. It was further clarified that the rule of res judicata, as indicated in Section 11 of the Code  of Civil  Procedure, has  no doubt  some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in  the interest  of the  public at large that a finality should attach  to the binding decisions pronounced by Courts of competent  jurisdiction, and  it is  also in  the  public interest that  individuals should  not be  vexed twice  over with the  same kind  of litigation.  If these two principles form the  foundation of  the general  rule of  res judicata, they cannot be treated as irrelevant or inadmissible even in dealing with  fundamental rights  in petitions  filed  under

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Article 32.  It was  also noted  that  the  liberty  of  the individual and  the protection of his fundamental rights are the very  essence of  the democratic  way of life adopted by the Constitution,  and it  is the  privilege and the duty of this Court  to uphold  those rights. Though a right is given to the  citizen to  move this  Court  by  a  petition  under Article 32  and to  claim an  appropriate writ  against  the unconstitutional infringement  of  his  fundamental  rights, yet, in  dealing with an objection based on the principle of res judicata  may even  apply to  a successive petition. The Court was  careful enough  to add: "We propose to express no opinion on  the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is  a matter  with which  we are  not concerned  in the present proceedings".      It may  be noted  that the  petitions which were before the Court  in Daryao’s  case  were  civil  matters  and  not petitions for  issue of a writ of habeas corpus. Even so, it was clarified in that case that the 357 principle of  constructive  res  judicata,  as  embodied  in Section 11  of  the  Code  of  Civil  Procedure,  was  of  a technical character  and  this  principle  was  not  one  of universal application.      In Ghulam  Sarwar’s case (ibid), the Constitution Bench of this  Court was  dealing with a petition under Article 32 of the  Constitution which  had raised  the question  of the validity of  the detention of the petitioner under Section 3 of the  Foreigners Act, 1946. The petitioner was a Pakistani national, who entered India without any travel documents. On May 8,  1964, he  was arrested  in New  Delhi by the Customs Authorities under Section 135 of the Customs Act, 1962. When he was  about to  be enlarged on bail, he was detained by an order under  Section 3(2)(g)  of the  Foreigners Act. It was said that he had to be detained, as police investigation was in progress  in respect  of a  case of conspiracy to smuggle gold, of  which he  was a  member. On  May 29,  1965, he was convicted by the Magistrate, of an offence under the Customs Act and  sentenced to imprisonment. His appeal was dismissed by the  Sessions Judge.  Before  his  term  of  imprisonment expired, the petitioner filed a writ of habeas corpus in the Circuit Bench  of the  Punjab High  Court,  challenging  his detention. The  petition was  dismissed by  Khanna,  J.,  on merits.  Before   the  learned   Judge,  the  constitutional validity of  Section 3(2)  (g) of the Act was not canvassed. The learned  Judge held  that  the  section  authorised  the Government to  make the  said  order  of  detention  on  its subjective  satisfaction   and  that  the  Court  could  not question its  validity in  the absence of any mala fides. In short, he  dismissed the  petition  on  merits.  Thereafter, Ghulam Sarwar  filed a  petition under  Article  32  of  the Constitution for  issue of  a writ  of habeas corpus against the respondent  on the ground that the provisions of the Act were invalid.  On behalf  of the  respondents, a preliminary objection was  raised that the decision of Khanna, J. of the Punjab High  Court operated  as res  judicata and barred the maintainability of the subsequent petition under Article 32. Reliance was  placed  on  the  decision  of  this  Court  in Daryao’s case.  After observing  that Daryao’s  case was  no authority in  regard to the repeated applications for habeas corpus, and  examining English  and American  decisions, the learned Chief  Justice (Mr. Justice Subba Rao) summed up the position, thus:           "But  unlike  in  England,  in  India  the  person      detained can  file original petition for enforcement of

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    his fundamental  right to  liberty before a court other      than the  High Court,  namely, this Court. The order of      the High  Court in the said writ is not res judicata as      held by the English and the 358      American Courts  either because it is not a judgment or      because the principle of res judicata is not applicable      to a  fundamentally lawless  order. If  the doctrine of      res judicata  is attracted to an application for a writ      of habeas  corpus, there is no reason why the principle      of constructive  res judicata  cannot also  govern  the      said application,  for the  rule  of  constructive  res      judicata is only a part of the general principle of the      law of  res judicata, and if that be applied, the scope      of the  liberty of  an individual  will be considerably      narrowed. The  present case  illustrates the  position.      Before the  High Court, the petitioner did not question      the constitutional  validity of  the President’s  order      made under  Article 359  of the  Constitution.  If  the      doctrine of  constructive res judicata be applied, this      Court, though  it is  enjoined by  the Constitution  to      protect the right of a person illegality detained, will      become powerless to do so. That would be whittling down      the wide sweep of the constitutional protection, On these  premises, it  was held  "that the order of Khanna, J., made  in the  petition for  habeas corpus  filed by  the petitioner does  not operate  as res judicata and this Court will have to decide the petition on merits".      In his concurring judgment, Bachawat, J., while holding that the  order of  dismissal by  the High  Court  does  not operate as  res judicata and does not bar the petition under Article 32  of this Court, asking for the issue of a writ of habeas  corpus   on  the  same  facts,  clarified  that  the petitioner would not have the right to move this Court under Article 32 more than once on the same facts.      In  Niranjan   Singh’s  case   (supra),  the   District Magistrate of  Gwalior by  his order  dated  May  26,  1971, passed  under  Section  2A  of  the  Madhya  Pradesh  Public Security (Amendment  Act) of  1970, detained the petitioner. The petitioner  filed a  writ petition  under Article 226 of the Constitution,  challenging his detention and praying for a writ  of habeas  corpus. The  petition was rejected by the High Court.  Thereupon, the  detenu moved  this Court  by  a petition under  Article 32 of the Constitution, for the same relief. A  preliminary objection  was taken on behalf of the respondent that  the petition  was barred  by res  judicata. Following the  earlier decision  of  this  Court  in  Ghulam Sarwar’s case  (ibid). Jaganmohan  Reddy, J., speaking for a Bench of two learned Judges, over-ruled this objection. 359      The position  that emerges  from a  survey of the above decisions  is  that  the  application  of  the  doctrine  of constructive res  judicata is  confined to civil actions and civil  proceedings.  This  principle  of  public  policy  is entirely inapplicable  to illegal detention and does not bar a subsequent  petition for  a writ  of habeas  corpus  under Article 32  of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief.      In the  present petition  fresh additional grounds have been taken,  to challenge  the  legality  of  the  continued detention of  the detenu.  We would  therefore hold that the subsequent writ  petition is  not barred as res judicata and over-rule  the   preliminary   objection   raised   by   the respondents.      The additional  grounds which  have been  pressed  into

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arguments by Shri Ram Jethmalani, are:      (1)  The  respondents  failed  to  supply  despite  the request of  the detenu,  all the documents which were relied upon by  the detaining  authority while passing the order of his detention,  that the  detaining authority  purported  to give him  460 documents, but later on, the detenu discovered that their  number was  less and  many of  them were  either incomplete or  had been  wholly withheld; that in particular 236 documents covering 236 pages were not supplied.      This is  alleged  in  ground  No.  13  of  the  present petition. In  reply to  this, in  para 17  of  the  counter- affidavit filed on behalf of the respondents, it is admitted that all the documents had not been given to the detenu, and he had  been supplied enough documents which were thought to be  sufficient   to  enable   him  to   make  an   effective representation.      The petitioner  came to  know about  the non-supply  of these documents from the copy of the judgment, dated May 13, 1980, of  the Gujarat  High Court  passed in the allied writ petitions filed  on behalf of other detenus who were alleged to be the associates of the present petitioner.      (2) On  July 17,  1980, a  representation was  made  on behalf of  the detenu  with  a  request  that  the  same  be forwarded to  the Central  Government for  exercise  of  its power of revocation of the detention under Section 11 of the Act. The Jailor forwarded that representation to the Central Government on  July 18,  1980, but the same has not yet been disposed of.  This plea is the subject of grounds 16, 17 and 26 of the Writ Petition. 360      A  reply  to  these  allegations  is  to  be  found  in paragraphs 20  and 21  of the counter filed on behalf of the respondents, wherein it is admitted that the jailor has sent the representation  at the  detenu’s request  to the Central Govt.      (3) The  grounds served  on the detenu were in English. The detenu  does not  know English.  It  is  stated  in  the affidavit of  the person  who served the ’grounds’ that they were explained  to the  detenu  in  Gujarati  which  is  the mother-tongue of the detenu. Admittedly, no translation into Gujarati of the grounds of detention was given to the detenu on March 11, 1980. This being the case there was a breach of the  constitutional   imperative  which  requires  that  the grounds should  be communicated  to the  detenu. It  can  be spelled out  therefrom that the grounds must be communicated in a  language which  the detenu  understands. In support of this contention,  reference has  been made to Haribandhu Das v. District  Magistrate, Cuttack  & Anr.  and  the  judgment dated June 23, 1980 in Bakshi’s case. Contention No. (1):      In the  previous petition,  though it  was alleged that there was  delay in supply of copies of the documents relied on by  the detaining authority in passing the impugned order of detention,  no specific  ground was  taken that documents covering about  236 pages  which were  relied  upon  by  the detaining authority  in passing the order of detention, were suppressed and  not supplied  to the petitioner. Indeed this is not  denied in  the counter-affidavit. The petitioner has affirmed in  his affidavit  that he  came to  know about the non-supply of  these documents  from  the  judgment  of  the Gujarat High  Court subsequently  to the  dismissal  of  his earlier petition. This affirmation remains unchallenged.      A  catena   of  decisions  of  this  Court  has  firmly established  the   rule  that   one  of  the  constitutional imperatives embodied in Article 22(5) of the Constitution is that all  the documents  and materials  relied upon  by  the

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detaining authority  in passing  the order of detention must be supplied to the detenu, as soon as practicable, to enable him to  make an  effective representation. Recently, in Smt. Icchu Devi  Choraria v.  Union of  India &  Ors., this Court reiterated the principle as follows:           "One of  the basic  requirements of  clause (5) of      Article 22  is that  the authority  making the order of      detention must,  as soon  as may be, communicate to the      detenu the grounds 361      on which the order of detention has been made and under      sub-section (3)  of Section  3 of the COFEPOSA Act, the      words "as  soon as may be" have been translated to mean      "ordinarily 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." The  grounds of detention must therefore be      furnished to  the detenu  ordinarily within  five  days      from  the   date  of   detention,  but  in  exceptional      circumstances  and   for  reasons  to  be  recorded  in      writing,  the   time  for  furnishing  the  grounds  of      detention may stand extended but in any event it cannot      be later  than fifteen days from the date of detention.      These are  the two  outside  time  limits  provided  by      Section 3,  sub-section (3) of the COFEPOSA Act because      unless the  grounds of  detention are  furnished to the      detenu, it  would not  be possible  for him  to make  a      requirement against  the order of detention and it is a      basic requirement of clause, (5) of Article 22 that the      detenu must  be afforded  the earliest  opportunity  of      making a  representation against  his detention. If the      grounds of  detention are  not furnished  to the detenu      within five  or fifteen  days, as  the case may be, the      continued detention  of the  detenu would  be  rendered      illegal both  on the  ground of violation of clause (5)      of Article  22 as  also on  the  ground  of  breach  of      requirement  of   Section  3  sub-section  (3)  of  the      COFEPOSA Act. 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  with   them.  It   would  not   therefore  be      sufficient to  communicate the detenu a bare recital of      the  grounds   of  detention,  but  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 362      to constitute  compliance with clause (5) of Article 22      and Section 3, sub-section (3) of the COFEPOSA Act."      In the  instant case, the materials and documents which were not  supplied to  the detenu  were evidently  a part of those  materials  which  had  influenced  the  mind  of  the detaining authority  in passing  the order  of detention. In other words,  they were  a  part  of  the  basic  facts  and materials, and  therefore, according  to the  ratio of  Smt.

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Icchu Devi’s  case (ibid),  should have been supplied to the detenu  ordinarily   within  five   days  of  the  order  of detention, and,  for exceptional  reasons  to  be  recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it  has  not  been  asserted  that  these documents, which were not supplied, were not relevant to the case of the detenu. Contention (2) :      The  respondents   have,  in  their  counter-affidavit, stated that  this representation  was not  addressed to  the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government  on July  18, 1980.  No counter-affidavit has been  filed on behalf of the Central Government, showing that this  representation was  considered and disposed of by it. In  matters touching  the personal  liberty of  a person preventively   detained,   the   constitutional   imperative embodied in Article 22(5) is that any representation made by him  should   be  dealt   with   utmost   expedition.   This constitutional mandate has been honoured in breach regarding the  representation  sent  by  the  detenu  to  the  Central Government. Contention (3) :      It is  an admitted  position that  the detenu  does not know English. The grounds of detention, which were served on the detenu,  have been  drawn up in English. It is true that Shri C.  L. Antali, Police Inspector, who served the grounds of detention  on the  detenu, has filed an affidavit stating that he  had fully  explained the  grounds of  detention  in Gujarati to  the detenu.  But,  that  is  not  a  sufficient compliance  with   the  mandate  of  Article  22(5)  of  the Constitution, which  requires that  the grounds of detention must be  "communicated" to  the detenu.  "Communicate" is  a strong word. It means that sufficient knowledge of the basic facts  constituting   the  ’grounds’   should  be   imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ’ground’ to the detenu is to enable him to make a purposeful and effective  representation. If  the  ’grounds’  are  only verbally 363 explained to  the detenu and nothing in writing is left with him, in  a language  which he understands, then that purpose is not  served, and  the constitutional  mandate in  Article 22(5) is  infringed. If  any authority  is  needed  on  this point, which is so obvious from Article 22(5), reference may be made  to the  decisions of  this Court  in Harikishan  v. State of  Maharashtra:  and  Haribandhu  Dass.  v.  District Magistrate (ibid).      Thus all the three contentions canvassed by the counsel for the petitioner, on merits were sound. The conclusion was therefore,   inescapable   that   due   to   the   aforesaid contraventions of  constitutional imperatives, the continued detention of the detenu was illegal.      It was  for these  reasons that  we  had  allowed  Writ Petition (Crl.)  No. 4349 of 1980 by our order dated October 3, 1980, and directed the release of the detenu. P.B.R.                                     Petition allowed. 364