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PETITIONER: ICHHU DEVI CHORARIA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT09/09/1980

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. VENKATARAMIAH, E.S. (J)

CITATION:  1980 AIR 1983            1981 SCR  (1) 640  1980 SCC  (4) 531  CITATOR INFO :  R          1981 SC 362  (2)  E          1981 SC 431  (2,3,8,9,10)  RF         1981 SC 510  (10,12)  RF         1981 SC 728  (17,18)  R          1981 SC 814  (2,3,4)  R          1981 SC 871  (1)  R          1981 SC1077  (1)  D          1981 SC1191  (9)  R          1981 SC1861  (1)  R          1981 SC1909  (1)  R          1981 SC2166  (13)  F          1982 SC 696  (2)  RF         1982 SC1500  (6,7)  D          1984 SC 444  (23)  F          1985 SC1082  (6,15)  D          1986 SC2173  (19)  APL        1989 SC 364  (8,9)  RF         1991 SC2261  (7,8)

ACT:      Constitution of  India 1950, Article 22(5)-Conservation of Foreign  Exchange and  Prevention of Smuggling Activities Act,  1974,   Section  3(3)-Detenu-Detention   ordered   for smuggling and  abetting smuggling of goods-Representation of detenu against  detention-Request of  detenu for  supply  of copies of statements and documents referred to in grounds of detention-Unreasonable    delay    in    consideration    of representation as  well as  request of detenu-No explanation for delay-Continued, detention of detenu whether illegal and void-Detenu whether entitled to be released.

HEADNOTE:      The detenu  was taken under detention on 4th June, 1980 by an  order of detention dated 27th May, 1980. The order of detention recited  that with  a view  to preventing him from smuggling goods  and abetting  the smuggling of goods it was necessary to  detain him. After detention he was also served on the  same day,  the grounds  of detention. The grounds of detention  referred  to  several  documents  and  statements including  two   tape  recorded  conversations.  The  detenu addressed a  letter dated  6th June,  1980  asking  for  all statements, documents  and material to enable him to make an

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effective representation  against his  detention. The detenu also sent  a representation  dated 9th  June,  1980  to  the Deputy  Secretary   once  again  requesting  him  to  supply immediately the documents etc. relied upon in the grounds of detention and  to furnish  the transcripts  of the  tapes as also to  produce the  original tapes, so that he could prove that the voice recorded on the tapes was not his. The detenu addressed another  representation dated  26th June,  1980 to the Chairman  of the  Advisory Board, the Central Government and the Deputy Secretary to the State Government praying for revocation of the order of detention, wherein he pointed out that by  his letters  dated 5th, 9th and 14th June, 1980, he had requested  for the tapes to be supplied to enable him to prove that  the voice  recorded on the tapes was not his and that this  request had  not been  complied with  and in  the circumstances the  hearing of  the case  before the Advisory Board would  be futile.  Meanwhile the Investigating Officer of the  Customs Department was deputed to the Central Prison alongwith the  tapes, and  the  tapes  were  played  in  the presence of  the detenu and the Deputy Superintendent of the Central Prison on 8th July, 1980. The representations of the detenu were  examined by the government, who by their letter dated 15th  July,  1980  rejected  the  representations  and declined to revoke the order of detention.      In  the   writ  petition   under  Article   32  of  the Constitution filed  by the  mother  of  the  detenu  it  was contended: (1) that the detaining authority did not serve on the detenu alongwith the grounds of detention, copies of the statements, documents  and tapes  referred to in the grounds of detention  and it  could not, therefore, be said that the grounds of detention were duly served 641 on the detenu as required by sub-section (3) of section 3 of the COFEPOSA  Act and  clause  (5)  of  Article  22  of  the Constitution, and  (2) that  the detaining authority did not supply copies  of such  statements, documents  and materials until 11th  July, 1980  and on  that  day  also,  what  were supplied were  merely copies of the statements and documents and not copies of the tapes which were supplied only on 20th July, 1980  and that  this delay  was wholly unjustified and the detenu  was thus  denied  the  earliest  opportunity  of making an  effective  representation  and  consequently  the continued detention of the detenu was illegal and void.      Allowing the writ petition. ^      HELD: 1.  There was  unreasonable delay  on the part of the detaining authority in supplying to the detenu copies of all the  relevant documents,  and  therefore  his  continued detention was  illegal and  void. The detenu was entitled to be released forthwith from detention. [654 F]      2. The  power of  Preventive detention can be justified only in the interest, of public security and order and it is tolerated in  a free  society only  as a necessary evil. The power to  detain without  trial is  an  extraordinary  power constituting encroachment  on personal liberty and it is the duty of  the courts  to ensure  that his  power is exercised strictly  in   accordance  with   the  requirements  of  the Constitution and  the law,  the  courts  always  leaning  in favour of upholding personal liberty. [646 F]      3. The  Constitution has  while conceding  the power of preventive detention,  provided procedural safeguards with a view  to   protecting  the  citizen  against  arbitrary  and unjustified invasion of personal liberty and the courts have always  zealously   tried  to   uphold  and   enforce  these safeguards. [646 H]

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    4. If  the detaining  authority wants  to  preventively detain a  smuggler it  can certainly  do  so,  but  only  in accordance with  the provisions  of the Constitution and the law and if there is a breach of any such provision, the rule of law  requires that  the detenu  must be  set at  liberty, howsoever wicked or mischievous he may be. [647 B]      5. Whenever  a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling  upon the  detaining authority  to justify  the detention and  when a rule is issued, it is incumbent on the detaining authority  to satisfy the court that the detention of the  petitioner is  legal  and  in  conformity  with  the mandatory provisions  of the law authorising such detention. [647 G]      Naranjan Singh  v. State  of Madhya Pradesh AIR 1971 SC 2215, Sheikh Hanif Gudma Majhi & Kamal Saha v. State of West Bengal  [1974]   2  SCR  258,  Dulal  Roy  v.  The  District Magistrate, Burdwan  & Ors.  [1975] 3 SCR 186, Nazamuddin v. The State  of West  Bengal [1975]  2 SCR  593, Mohd. Alam v. State of West Bengal [1974] 3 SCR 379, Khudiram Das v. State of West Bengal & Ors. [1975] 2 SCR 832, referred to.      6. On a proper construction of clause (5) of Article 22 read with section 3, sub-section (3) of the COFEPOSA Act, it is necessary  for the  valid continuance  of detention  that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should  be furnished  to the  detenu alongwith the grounds of  detention or  in any  event 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. If  this requirement  of clause  (5)  of Article 22 read with section 3, sub-section (3) 642 is not  satisfied, the  continued detention  of  the  detenu would be illegal and void. [650 H-651B]      7. The  right to  be supplied  copies of the documents, statements and other materials relied upon in the grounds of detention without  any  undue  delay  flows  directly  as  a necessary corollary  from the  right conferred on the detenu to  be   afforded  the  earliest  opportunity  of  making  a representation against  the detention,  because  unless  the former right is available, the latter cannot be meaningfully exercised.  This   would  seem   to  be   clear  on  a  fair interpretation of clause (5) of Article 22. [652 E-F]      Ramachandra A. Kamat v. Union of India [1980] 2 SCC 270 referred to.      In the  instant case the detenu asked for copies of the documents, statements and other materials relied upon in the grounds of detention by his letters dated 6th June, 1980 and 9th June,  1980 and  he also  complained about non-supply of such copies  in his representation dated 26th June, 1980 but it was  only on  11th  July,  1980  that  such  copies  were supplied to  him and  even then the copies of the tapes were not furnished  until 20th July, 1980. There was thus a delay of more  than one  month in  supply of these copies, and the burden of  satisfactorily explaining  this delay and showing that there  was sufficient cause for it was on the detaining authority. The  delay of  12 days  i.e. from 12th June, 1980 until 24th  June, 1980 has not been satisfactorily explained either in the affidavit of the Deputy Secretary to the State Government or  in  any  affidavit  filed  by  the  Assistant Collector of  Customs. There was, therefore, an unreasonable delay on the part of the detaining authority in supplying to the detenu  copies of  the documents, statements etc. relied upon in the grounds of detention. The continued detention of

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the detenu  was accordingly  illegal and  void  and  he  was entitled to  be released  forthwith from  detention. [652 H- 653B, G; 654 F]      8. The  representation of  the detenu  dated 9th  June, 1980 was received by the Deputy Secretary on 14th June, 1980 while the  representation dated 26th June, 1980 was received on 30th  June, 1980  and no  decision  was  taken  on  these representations of  the detenu  until 14th July, 1980. There is no  explanation at  all for  this delay  in  any  of  the affidavits filed  on behalf of the detaining authority. This is sufficient  to invalidate  the continued detention of the detenu. [654 -655 C, G]      9. The  Customs Department has not filed a charge sheet against the  detenu for  prosecuting him  in respect  of the incidents referred  to in  the  grounds  of  detention  even though more  than six months have passed. There should be no unreasonable delay on the part of the Customs authorities in completing the investigation of the cases against the detenu and prosecuting  him in  the criminal courts if the evidence gathered  by   them  in  the  course  of  the  investigation justifies such a course. [656 B-C]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 2030 of 1980.      Under Article 32 of the Constitution.      Ramjethmalani, M.  M. Lodha and Harjinder Singh for the Petitioner.      V. S.  Desai, Mrs.  Shobha Dixit, R. N. Poddar and Miss A. Subhashini for the Respondent.      The Judgment of the Court was delivered by 643      BHAGWATI, J.-This  petition for a writ of habeas corpus challenges the  continued detention  of one Mahendra Chordia under sub-section  (1) of  section 3  of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act).      On 4th  June, 1980 an order of detention dated 27th May 1980 was served on Mahendra Chordia (hereinafter referred to as the  detenu) and  he was taken under detention. The order of detention  recited that  the Governor  of Maharashtra was satisfied with  respect to  the detenu  that, with a view to preventing  him   from  smuggling  goods  and  abetting  the smuggling of  goods, it  was  necessary  to  make  an  order directing him  to be detained and by the order of detention, the Governor  of  Maharashtra  in  exercise  of  the  powers conferred under sub-section (1) of section 3 of the COFEPOSA Act read  with the  Order of  the President  of India in the notification of  the Government  of India dated 17 February, 1980 directed  that the  detenu be  detained under that Act. Simultaneously with  the order  of detention,  another order dated  27th   May  was   also  issued  by  the  Governor  of Maharashtra directing  that the  detenu be  detained in  the Nasik Road  Central Prison. When the petitioner was arrested and taken  under  detention,  he  was  also  served  with  a document  dated  27  May  1980  containing  the  grounds  of detention as required by sub-section (3) of the COFEPOSA Act read with  clause (5) of Article 22 of the Constitution. The grounds of  detention  referred  to  several  documents  and statements including  two tape  recorded conversations,  one between the  detenu and  one Ahluwalia and the other between the detenu,  Ahluwalia and  an advocate by the name of Kumar Mehta. The  detenu therefore  addressed a  letter dated  6th June, 1980  to the  Deputy Secretary  to the  Government  of

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Maharashtra requesting  him at  his earliest  to  send  "all statements documents  and material" to enable him to make an effective representation  against his  detention. The detenu also sent  a representation  dated 9th  June,  1980  to  the Deputy  Secretary   once  again  requesting  him  to  supply immediately the  documents, statements  and materials relied upon in  the grounds  of detention  so that the detenu could make  an  effective  representation  and  also  specifically calling upon the Deputy Secretary to furnish the transcripts of the  tapes as  also to produce the original tapes for his inspection so that he could prove that the voice recorded on the tapes  was not  his. This  representation was admittedly received by  the Deputy  Secretary on  14th June  1980.  The detenu thereafter  addressed another  communication  to  the Deputy Secretary  requesting him to supply one accurate copy of the  tapes, so that he could have the tapes played in the presence of those 644 who would  recognise  his  voice,  to  enable  him  to  lead evidence through  them that  the voice recorded on the tapes was not  his  as  also  to  let  him  know  on  whose  final satisfaction the  order of  detention was  made. This letter though originally  dated 14th  June, 1980 was not despatched to the  Deputy Secretary until 1st July, 1980 because in the meanwhile the  detenu had  been taken  to Bombay  and it was only after  his return to Nasik Road Central Prison that the letter could  be despatched through the jailor and hence the date was  altered to  1st July,  1980. It  appears that this letter was  received by  the Deputy  Secretary on  8th July, 1980. But,  prior to  his forwarding  the letter  dated  1st July, 1980  to the  Deputy Secretary,  the detenu  addressed another representation dated 26th June, 1980 to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary to  the Government  of Maharashtra praying for re- vocation of  the order  of detention. The detenu pointed out in this  representation that,  by his letters dated 5th, 6th and 14th  June, 1980,  he had  requested for the tapes to be supplied to  him to  enable him  to  prove  that  the  voice recorded on  the tapes was not his and that this request had not been  complied  with  and,  in  the  circumstances,  the hearing of  the case  before the  Advisory  Board  would  be futile. The  detenu also  complained in  the  representation that though  he had  asked for  copies of  the documents and statements relied upon in the grounds of detention, they had not been supplied to him. This representation containing the prayer for revocation of the order of detention was received by the  Deputy Secretary  on 30th June, 1980. Now it appears that copies  of the  statements and documents relied upon in the grounds  of  detention  were  forwarded  by  the  Deputy Secretary to the Superintendent of Nasik Road Central Prison by registered  letter dated  3rd July  1980 and these copies were handed  over to  the detenu  on 11th  July  1980.  Mean while, one  Vikraman Investigating  officer of  the  Customs Department was  deputed to  the Nasik  Road  Central  Prison alongwith the  tapes  and  the  tapes  were  played  in  the presence of  the detenu  and the  Deputy  Superintendent  of Nasik  Road   Central  Prison   on  8th   July   1980.   The representations of  the detenu dated 9th June, 1980 and 26th June, 1980  were then  considered by  the Under Secretary on 11th July,  1980 and since in the mean time the letter dated 1st July  1980 requesting for supply of one accurate copy of the  tapes   was  received  by  the  Government,  the  Under Secretary suggested,  with reference  to this  request  that "since the tapes were given to the detenu for inspection and played before  him, the  request for supply of copies of the

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tapes may  have to be rejected" and he also recommended that the request  of the  detenu for  revocation of  the order of detention may be rejected. The Deputy Secretary approved the noting  of   the  Under   Secretary  that  the  request  for revocation of the detention order may 645 be rejected  and the  file was immediately put up before the Secretary on  the same  day and  the secretary also approved the proposal for rejecting the request for revocation of the order  of   detention  but   recommended  that  the  Customs Department must  give to  the detenu  the transcripts of the tapes, as  otherwise he would take a stand in the Court that his defence  was  prejudiced.  It  appears  that  the  Chief Minister endorsed  the noting  of the Secretary on 14th July 1980. Pursuant  to this decision of the Government, a letter dated 15th  July 1980  was addressed to the detenu rejecting his representations  and declining  to revoke  the order  of detention. It  is difficult to appreciate what purpose could possibly be  intended to  be served  by giving copies of the tapes to the detenu after rejecting his representations, but all the  same, copies  of the  tapes were handed over to the detenu on  20th July,  1980. The detenu’s mother in the mean while preferred  the present  petition in  this Court and on 10th July, 1980 rule nisi was issued on the petition by this Court.      There were  several grounds  on which  the detention of the detenu  was challenged  in the  petition. But  it is not necessary to  refer to  all the  grounds since  there is one ground which  is, in  our opinion,  fatal to  the  continued detention of  the detenu  and it  will be  sufficient if  we confine our  attention to that ground. The contention of the petitioner  under   the  ground   was  that  though  several statements and  documents were relied upon in the grounds of detention and  considerable reliance  was also placed on two tape recorded conversations in the grounds of detention, the detaining authority  did not  serve on the detenu along with the  grounds  of  detention,  copies  of  those  statements, documents and  tapes and it could not therefore be said that the grounds  of detention  were duly served on the detenu as required by sub-section (3) of section 3 of the COFEPOSA Act and clause  (5) of  Article  22  of  the  Constitution.  The petitioner urged  that sub-section  (3) of  section 3 of the COFEPOSA  Act   and  clause   (5)  of   Article  22  of  the Constitution required that the detaining authority should as soon as  may be,  communicate to  the detenu  the grounds on which the  order of detention has been made and such grounds would comprise  not merely  a bare recital of the grounds of detention but  also all statements and documents relied upon in the grounds of detention, because these latter would also form part  of such  grounds. It  was also  contended by  the petitioner in  the  alternative  that,  in  any  event,  the detaining  authority   was  bound  to  give  copies  of  the statements, documents  and tapes  relied upon in the grounds of detention  to the  detenu without  any avoidable delay in order that  the detenu  should have the earliest opportunity of making  an effective  representation against the order of detention. The argument of the petitioner was 646 that, in  the present  case, though the detenu asked for the copies of  statements, documents and material relied upon in the grounds  of detention  as early  as 6th  June, 1980, the detaining  authority   did  not   supply  copies   of   such statements, documents  and materials  until 11th  July, 1980 and on  that day also, what were supplied were merely copies of the  statements and  documents and  not the copies of the

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tapes which were supplied only on 20th July 1980. This delay in supplying  copies of  the statements, documents and tapes was, in  the submission of the petitioner wholly unjustified and the  detenu was  thus denied the earliest opportunity of making an  effective representation  and this  infected  the continued  detention   of  the   detenu  with  the  vice  of illegality. This  ground of challenge urged on behalf of the petitioner appeared  to us  to be  well founded  and that is why, by  an order  dated 8th August 1980 made immediately on the conclusion of the arguments, we allowed the petition and directed that  the detenue  be set  at liberty forthwith. We now proceed  to give  our reasons  for making that Order. We may point  out straightway  that we  are not at all happy at the thought that our order may have resulted in setting free a possible  smuggler. We  are not unmindful of the fact that the COFEPOSA  Act  has  been  enacted  for  the  purpose  of eradicating the  evil of  smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability  of the country and when an order is made by the  Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose  on   the  society,   a  smuggler  who  might  in  all probability,  resume   his  nefarious   activities   causing incalculable mischief and harm to the economy of the nation. But at  the same  time we  cannot forget  that the  power of preventive detention  is a draconian power justified only in the  interest  of  public  security  and  order  and  it  is tolerated in  a free  society only  as a necessary evil. The power to  detain without  trial is  an  extraordinary  power constituting encroachment  on personal liberty and it is the solemn duty  of the  Courts to  ensure that  this  power  is exercised strictly  in accordance  with the  requirements of the Constitution  and the law. The courts should always lean in favour  of upholding  personal liberty,  for it is one of the most  cherished values of mankind. Without it life would not be  worth living.  It is  one of  the  pillars  of  free democratic society.  Men have  rightly laid down their lives at its  altar in order to secure it, protect it and preserve it. The  Constitution has  therefore,  while  conceding  the power   of   preventive   detention,   provided   procedural safeguards with  a view  to protecting  the citizen  against arbitrary and  unjustified invasion  of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards.  This Court  has also through its judicial pronouncements   created    various   legal   bulwarks   and breakwaters into the vast powers conferred on the. 647 executive by  the laws  of preventive detention prevalent at different points  of time.  It is true that sometimes even a smuggler may be able to secure his release from detention if one of  the safeguards  or requirements  laid  down  by  the Constitution or  the  law  has  not  been  observed  by  the detaining authority  but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and  the   law.  If   the  detaining   authority  wants   to preventively detain  a smuggler, it can certainly do so, but only in  accordance with  the provisions of the Constitution and the  law and if there is a breach of any such provision, the rule  of law  requires that  the detenu  must be  set at liberty, however  wicked or  mischievous he  may be. The law cannot be  subverted, particularly  in the  area of personal liberty, in  order to  prevent a  smuggler from securing his release from  detention, because  whatever is  the law  laid down by  the courts  in the  case of  a  smuggler  would  be equally applicable in the case of preventive detention under

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any other  law. This  Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret  the provisions of the Constitution and the law  in regard  to preventive detention without being in any manner tramelled by the fact that this is a case where a possible smuggler is seeking his release from detention.      It is  also necessary  to point  out that in case of an application for  a  writ  of  habeas  corpus,  the  practice evolved by  this Court  is not  to follow  strict  rules  of pleading nor  place undue  emphasis on the question as to on whom the  burden of proof lies. Even a postcard written by a detenu from  jail has been sufficient to activise this Court into examining  the legality  of detention.  This Court  has consistently shown  great anxiety  for personal  liberty and refused to throw out a petition merely on the ground that it does not  disclose a prima facie case invalidating the order of detention.  Whenever a  petition for  a  writ  of  habeas corpus  has  come  up  before  this  Court,  it  has  almost invariably  issued   a  rule   calling  upon  the  detaining authority to  justify the  detention. This Court has on many occasions pointed  out that  when a  rule is  issued, it  is incumbent on  the detaining  authority to  satisfy the court that the  detention  of  the  petitioner  is  legal  and  in conformity  with   the  mandatory   provisions  of  the  law authorising such  detention: Vide Naranjan Singh v. State of Madhya Pradesh;  Sheikh Hanif,  Gudma Majhi  & Kamal Saha v. State  of  West  Bengal,  and  Dulal  Roy  v.  The  District Magistrate, Burdwan & Ors. It has also 648 been insisted  by this  Court that,  in answer to this rule, the detaining  authority must  place all  the relevant facts before the  court which  would show that the detention is in accordance with  the provisions  of the  Act. It would be no argument on  the part of the detaining authority to say that a particular  ground is  not taken  in  the  petition.  Vide Nazamuddin v.  The State  of West  Bengal. Once  the rule is issued it is the bounden duty of the Court to satisfy itself that all  the safeguards  provided  by  the  law  have  been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Vide Mohd. Alam v. State of West Bengal and Khudiram Das v. State of West Bengal & Ors.      This practice  marks a departure from that obtaining in England where  observance of the strict rules of pleading is insisted upon  even in  case of an application for a writ of habeas corpus, but it has been adopted by this Court in view of the  peculiar socio-economic conditions prevailing in the country. Where  large masses  of people are poor, illiterate and ignorant and access to the courts is not easy on account of  lack   of  financial   resources,  it   would  be   most unreasonable to  insist that  the petitioner  should set out clearly and  specifically the grounds on which he challenges the order  of detention  and make  out a prima facie case in support of  those grounds before a rule is issued or to hold that the  detaining authority  should not  be liable  to  do anything  more  than  just  meet  the  specific  grounds  of challenge put forward by the petitioner in the petition. The burden of  showing that  the detention is in accordance with the procedure  established by  law has always been placed by this Court  on the detaining authority because Article 21 of the Constitution  provides in  clear and explicit terms that no one  shall be  deprived of  his life  or personal liberty except in accordance with procedure established by law. This constitutional right  of life and personal liberty is placed on such  a high  pedestal by  this Court  that it has always

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insisted that  whenever there  is any deprivation of life or personal  liberty,   the  authority   responsible  for  such deprivation must  satisfy the  court that  it has  acted  in accordance with the law. This is an area where the court has been most  strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law  is breached in the slightest measure, the court has not hesitated  to strike  down the  order of detention or to direct the  release of the detenue even though the detention may have  been valid till the breach occurred. The court has always  regarded  personal  liberty  as  the  most  precious possession 649 of  mankind  and  refused  to  tolerate  illegal  detention, regardless of  the social  cost involved in the release of a possible renegade.      We must  therefore now proceed to examine whether there was any  breach of the requirements of Article 22 clause (5) of the  Constitution and  Section 3,  sub-section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as  invalidating the  continued detention  of the detenue. Clause  (5) of Article 22 of the Constitution reads as follows:           "Art.  22(5):  When  any  person  is  detained  in      pursuance of  an order made under any law providing for      preventive detention,  the authority  making the  order      shall, as  soon as  may be,  communicate to such person      the grounds  on which the order has been made and shall      afford  him   the  earliest  opportunity  of  making  a      representation against the order." Section 3,  sub-section of  the  COFEPOSA  Act  provides  as under:           "For the  purposes of  clause (5) of Article 22 of      the  Constitution,   the  communication   to  a  person      detained in  pursuance of  a detention  order,  of  the      grounds on which the order has been made shall be made,      as soon  as may be, after the detention, but 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 true  meaning and  import of clause (5) of Article 22 of the Constitution was explained by this Court in Khudiram Das v. State of West Bengal (supra):           "The constitutional  imperatives enacted  in  this      article are two-fold: (1) the detaining authority must,      as soon  as may  be, that  is, as  soon as  practicable      after the  detention, communicate  to the  detenue  the      grounds on  which the order of detention has been made,      and (2) the detaining authority must afford the detenue      the earliest  opportunity of  making  a  representation      against the  order of  detention. These  are the barest      minimum safeguards  which must  be observed  before  an      executive authority  can be  permitted to  preventively      detain a person and thereby drown his right of personal      liberty  in   the  name   of  public  good  and  social      security." It will be seen that 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  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" 650 have been translated to mean "ordinarily not later than five

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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 representation 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 without  them. It would not therefore be sufficient to communicate  to the  detenu a bare recital of the grounds of detention,  but copies  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 to constitute compliance  with clause  (5) of  Article  22  and section 3,  sub-section (3)  of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the  detenu  is  to  enable  the  detenu,  at  the  earliest opportunity, to  make a representation against his detention and it  is difficult to see how the detenu can possibly make an effective  representation unless  he  is  also  furnished copies of  the documents,  statements  and  other  materials relied upon in the grounds of detention. There can therefore be no  doubt that  on a proper construction of clause (5) of Article 22  read with  section 3,  sub-section  (3)  of  the COFEPOSA Act,  it is  necessary for the valid continuance of detention that subject to clause (6) of 651 Article 22  copies of  the documents,  statements and  other materials relied  upon in the grounds of detention should be furnished to  the detenu alongwith  the grounds of detention or in  any event 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. If this requirement of clause (5) of Article 22 read with section 3, sub-section (3) is not satisfied the continued  detention of the detenu would be illegal and void.      Now, in the present case, the grounds of detention were detention were  served upon  the detenu on 4th June, 1980 at the time  when he   was  taken under  detention,  but  these grounds which  were served  upon the  detenu did not include

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the documents, statements and other materials relied upon in the grounds  and forming part of them. The detenu, therefore by his  letter dated  6th June,  1980, requested  the Deputy Secretary  to   send  at   his  earliest   "all  statements, documents,  materials"   relied  upon   in  the  grounds  of detention in  order to  enable  him  to  make  an  effective representation against  his detention.  But copies  of these documents, statements  and other materials were not supplied to the  detenu until 11th July, 1980 and so far as the tapes were concerned,  their copies  were furnished  to the detenu even later  on  20th  July,  1980.  It  is  clear  from  the discussion in  the preceding paragraph that under clause (5) of Article  22 read  with section  3, sub-section (3) of the COFEPOSA Act,  the detaining  authority was  bound to supply copies of  the documents,  statements  and  other  materials relied upon in the grounds of detention to the detenu within five days  from the date of detention, that is, on or before 9th June,  1980 and  in any  event, even  if we  assume that there were  exceptional circumstances  and reasons  for  not supplying such  copies within  five days  were  recorded  in writing, such copies should have been supplied to the detenu not later than fifteen days from the date of detention, that is, on or before 19th June, 1980. It was, of course, not the case of  the detaining  authority before us that reasons for not supplying  copies of the documents, statements and other materials to  the detenu  within five  days were recorded in writing nor  were any  such reasons  produced before us, but even if  there were  any such  reasons recorded  in writing, coupled with the existence of exceptional circumstances, the detaining authority, could not delay the supply of copies of the documents,  statements and other materials to the detenu beyond 19th June, 1980. Even if there were any circumstances justifying the  delay in  supply  of  copies  of  documents, statements and  other materials  beyond 19th  June, 1980  it would afford  no defence  to the  detaining  authority,  for clause (5)  of Article  22 read  with section 3, sub-section (3) of  the COFEPOSA Act lays down an inexorable rule of law that the  grounds of  detention shall be communicated to the detenu not later than fifteen days from the 652 date of detention. There are no exceptions or qualifications provided to  this rule  which operates in all its rigour and strictness and  if there is any breach of this rule, it must have the  effect of  invalidating the continued detention of the detenu.  There can  therefore be  no doubt  that, in the present case, the continuance of the detention of the detenu after 19th  June, 1980  was unconstitutional  and it was not open to  the detaining  authority to  seek  to  justify  the continued  detention   on  the   ground  that   there   were sufficiently compelling  reasons  which  prevented  it  from supplying copies  of the  documents,  statements  and  other materials to  the detenu until 11th July, 1980 and copies of the tapes until 20th  July, 1980.      It may  be pointed  out that even if our interpretation of the  words "the grounds on which the order has been made" in clause (5) of Article 22 and section 3 sub-section (3) of the COFEPOSA Act be wrong and these words do not include the documents, statements and other materials relied upon in the grounds of  detention, it  is unquestionable  that copies of such documents,  statements  and  other  materials  must  be supplied to  the  detenu  without  any  unreasonable  delay, because otherwise  the detenu  would not  be able to make an effective representation and the fundamental right conferred on him  to be  afforded the earliest opportunity of making a representation against his detention would be denied to him.

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The right to be supplied copies of the documents, statements and other  materials relied upon in the grounds of detention without any  undue  delay  flows  directly  as  a  necessary corollary from  the right  conferred on  the  detenu  to  be afforded the earliest opportunity of making a representation against the  detention, because  unless the  former right is available, the later cannot be meaning fully exercised. This would seem  to be  clear on  a fair interpretation of clause (5) of  Article 22  but apart  from this  view which  we are inclined to take on principle as a matter of interpretation, the law is now well settled as a result of several decisions of this  court commencing from Ramachandra A. Kamat v. Union of INDIA   (1)  that: "When  the grounds  of detention   are served on  the detenu,  he is  entitled to ask for copies of 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. 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."      The facts  as we  find them  here are  that the  detenu asked for  copies of  the documents,  statements  and  other materials relied upon 653 in the  grounds of  detention by his letters dated 6th June, 1980 and  9th   June, 1980 and he also complained about non- supply of such copies in his representation dated 26th June, 1980 but  it was  only on  11th July,  1980 that such copies were supplied  to him  and even then the copies of the tapes were not  furnished until  20th July, 1980. There was thus a delay of  more than  one month  in supply  of copies  of the documents, statements and other materials to the detenu. The burden of  satisfactorily explaining  this delay and showing that there  was sufficient cause for it was on the detaining authority and an attempt was made by the detaining authority to discharge this burden by filing an affidavit made by C.R. Mulherkar,   Deputy   Secretary   to   the   Government   of Maharashtra. It was stated in this affidavit that the letter of the  detenu dated 6th June, 1980 requesting for copies of the documents, statements and other materials relied upon in the grounds of detention was received in the Home Department on 10th June, 1980 and on receipt, this letter was forwarded to the  Asstt. Collector  of Customs for his remarks on 12th June, 1980. The Assistant Collector of Customs forwarded his remarks to the Deputy Secretary on 24th June, 1980 alongwith one set of copies of documents and statements relied upon in the grounds  of detention  and these  were received  by  the Deputy Secretary  in the  Home Department on 27th June 1980. The next  two days,  namely 28th  and 29th  June, 1980  were holidays and  on 2nd  July 1980  the State Government took a decision to  supply these copies to the detenu and they were forwarded to  the detenu through the Superintendent of Nasik Road Central  Prison alongwith a registered letter dated 3rd July 1980  which,  for  some  inexplicable  reason  was  not received by  the Superintendent  until 10th  July 1980,  and hence it was said these copies could not be delivered to the detenu until  11th  July  1980.  This  was  the  explanation offered  by   the  detaining  authority  for  the  delay  in supplying copies  of the  documents,  statements  and  other materials to the detenu but we do not think this explanation can be  accepted by us as satisfactory. It is clear from the facts narrated  above that though the Assistant Collector of Customs received  the letter  of the detenu forwarded by the

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Deputy Secretary on 12th June 1980, he did not respond to it until 24th  June 1980 and this delay of 12 days has not been satisfactorily explained  either in  the affidavit  of  C.R. Mulherkar  or  in  any  affidavit  filed  by  the  Assistant Collector of  Customs. It  was  urged  before  us  that  the documents and  statements of  which copies were requested by the detenu ran into 89 pages and it was therefore reasonable to assume  that a  few days  must have  been  taken  in  the Customs Department  to make  copies of  these documents  and statements and  hence the  time of  12 days  taken up by the Assistant Collector  of Customs  in sending  copies  of  the documents and statements to the 654 Deputy Secretary  could not be said to be unreasonable. This argument  is   patently  unsound,   because  the   Assistant Collector of  Customs ought  to have  kept  ready  with  him copies of  the documents,  statements  and  other  materials relied upon in the grounds of detention since it should have been anticipated that these copies would have to be supplied to the  detenu in  order to  enable him to make an effective representation against  his detention and it does not lie in the mouth  of the Assistant Collector of Customs to say that his department started making copies for the first time when a request for copies was made by the detenu. In fact, copies of the documents. statements and other materials relied upon in the  grounds of detention should have been available with the  detaining  authority  itself  so  that  they  could  be supplied to  the detenu immediately as soon as a request was made in that behalf. Of course, our view is and that is what we have  said in  the earlier  part of  the  judgment,  that copies of  the documents,  statements  and  other  materials relied upon  in the  grounds of  detention from part of such grounds and  they have  to be  supplied to the detenu within the time  limited under clause (5) of Article 22 and section 3 sub-section  (3) of  COFEPOSA Act, but even if that be not the correct view, there is little doubt that copies of these documents.  statements   and  other   materials  should   be available with  the detaining  authority and  they should be supplied without  unreasonable delay  as soon  as the detenu makes a  request for  the same. The time of 12 days taken up by  the   Assistant  Collector   of  Customs  was  therefore unreasonably long  for  which  no  explanation  at  all  was forthcoming from  the detaining  authority. We  must in  the circumstances hold  that there was unreasonable delay on the part of  the detaining  authority in supplying to the detenu copies of  the documents,  statements  and  other  materials relied upon  in the  grounds of  detention and the continued detention of the detenu was accordingly illegal and void and the detenu  was  entitled  to  be  released  forthwith  from detention.      It is  also necessary  to  point  out  that  there  was unreasonable delay in considering the representations of the detenu dated  9th June  1980 and  26th June  1980. It is now settled law that on a proper interpretation of clause (5) of Article   22,   the   detaining   authority   is   under   a constitutional obligation  to consider the representation of the  detenu   as  early   as  possible,   and  if  there  is unreasonable delay  in considering  such representation,  it would have  the effect  of invalidating the detention of the detenu. Vide;  V. J. Jain v. Pradhan (1) here in the present case the  representation of  the detenu  dated 9th June 1980 was received by the Deputy Secretary on 14th June 1980 while the representation dated 26th June 1980 was received on 30th June  1980   and  yet   no  decision   was  taken  on  these representation of the detenu until 14th

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655 July 1980.  The question is whether this delay could be said to  have   been  reasonably   explained  by   the  detaining authority. The  representation of  the detenu dated 9th June 1980 was  received in  the Mantralaya  on 14th June 1980 but that day  and the  next day  being holidays,  it came to the hands of the concerned officer only on 16th June 1980, and a copy of  it was  forwarded to  the  Assistant  Collector  of Customs for  his remarks  on 23rd June 1980. It is difficult to see  to see  why the  concerned officer in the Mantralaya should have  taken seven  days for just forwarding a copy of the representation  of the detenu to the Assistant Collector of Customs. There is no explanation at all for this delay in any of  the affidavits  filed on  behalf  of  the  detaining authority. The Collector of Customs thereafter forwarded his remarks on  30th June  1980 and here again there was a delay of seven  days for  which no explanation is forthcoming. The remarks of  the Assistant Collector of Customs were received by the  concerned officer  on 2nd  July 1980 and there after the representation  started on  its upward  journey from the Undersecretary to  the Chief  Minister. It  appears that  by this time the second representation of the detenu dated 26th June 1980  was also  received by  the State  Government  and hence this  representation was  also subjected  to the  same process as  the representation  dated 9th June, 1980. It was only on  11th July 1980 that these two representations dated 9th June  1980 and  26th June  1980 came to be considered by the Under  Secretary and  he  made  a  noting  on  the  file recommending that  the request  of the detenu for revocation of the  order of  detention may be rejected, and this noting was  approved  by  the  Deputy  Secretary  as  well  as  the Secretary on the same day and the Chief Minister endorsed it on 14th  July 1980.  It is indeed difficult to see how these two representations  of the  detenu could be rejected by the detaining authority  when the  request  of  the  detenu  for copies of  the tapes  was pending  and the  Secretary to the State Government  in fact  made a  noting on  11th July 1980 that the  copies of the tapes must be given to the detenu by the Customs Department. But even if we take the view that it was not  necessary for the detaining authority to wait until after the  copies of  the tapes were supplied to the detenu, it is  difficult to resist the conclusion that the detaining authority was  guilty of  unreasonable delay  in considering the two  representations of the detenu, and particularly the representation dated  9th June  1980. This ground is also in our opinion sufficient to invalidate the continued detention of the detenu.      These were  the reasons  for which  we allowed the writ petition and  directed immediate  release of the detenu from detention. We may point out that we have not pronounced upon the validity  of the  order of detention but merely held the continued detention of the detenu 656 to be  illegal on  the ground  of  non-compliance  with  the requirements of clause (5) of Article 22 and sub-section (3) of section 3 of the COFEPOSA Act, and therefore nothing that is said  by us  in this  judgment should be considered as an expression of  opinion on the validity or correctness of the order of  detention as  made. We are unable to appreciate as to why  the Customs  Department has  not yet  filed a charge sheet against  the detenu  for prosecuting him in respect of the incidents  referred to  in the grounds of detention even though more  than six  months have passed since then. If the investigation reveals  that the  detenu was  responsible for smuggling  or   abetting   the   smuggling   of   goods   in

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contravention of  law, the  Customs  officers  should  adopt criminal  proceedings  against  the  detenu  as  quickly  as possible and  try to  bring him  to  book  in  the  criminal courts. We hope and trust that there will be no unreasonable delay on  the part of the Customs officers in completing the investigation  of   the  cases   against  the   detenu   and prosecuting him  in the  criminal  courts  if  the  evidence gathered  by   them  in  the  course  of  the  investigation justifies such a course. N.V.K.                                     Petition allowed. 657