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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

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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

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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-

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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

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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

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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