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PETITIONER: PRITAM NATH HOON

       Vs.

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT11/09/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. KOSHAL, A.D.

CITATION:  1981 AIR   92            1981 SCR  (1) 682  1980 SCC  (4) 525  CITATOR INFO :  RF         1981 SC 510  (10,12)  RF         1981 SC1191  (7)  R          1981 SC2166  (15)  RF         1991 SC2261  (7)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act, 1974-Non-supply  and also belated supply of  documents vitiate  the preventive  detention  and entitled the  release of  the detenu-Panchnamas  do not give the detenu  full notice  of the  case against him or furnish all the materials which he needs to make his representation- Guideline  to   detaining  authority   regarding  supply  of documents.

HEADNOTE:      Allowing the  petition and  ordering the release of the detenu forthwith, the Court ^      HELD :  (Per Koshal, J.) (1) It is now settled law that the detaining  authority is  bound to give an opportunity to the detenu  to make  a representation  against his detention and also  to consider the same as early as possible and that any unreasonable delay in furnishing to the detenu copies of the documents  which  form  the  basis  of  the  grounds  of detention amounts  to denial  to him  of  such  opportunity. [687-G.].      In the  instant case  there was  a gap of 32 days (10th June to 11th July, 1980) which could very well have been cut short considerably  if the  authorities concerned  had acted with promptitude.  Not even  an attempt  has  been  made  to explain why  no attention  was paid  to the  demand for  the supply of the copies on the 10th, 11th, 12th, 26th, 27th and 30th June and the first of July, 1980. Further the procedure adopted by  the Home  Department  in  asking  the  Assistant Collector of  Customs to  send his  "necessary  remarks"  is unwarranted. For  one thing  all the  documents should  have been available  with a  detaining  authority  and  if  their originals had  been taken away by the Assistant Collector of Customs, their  copies should have been retained in the Home Department for  being furnished  to the  detenue on  demand. Secondly, there  was no  impediment in  the way  of the Home

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Department requiring,  through its  letter dated  12th  June 1980, the  Assistant Collector  of Customs  to  furnish  the copies direct  to the  detenu at  the Nasik  Central Prison, Nasik. Thirdly,  the reason for the delay of 4 days from the 7th July  to the  11th July  1980 cannot  be accepted at its face value.  The petitioner  was in  custody  at  the  Nasik Prison and there was no question of his being "in a hurry to go to Bombay" and the document appears to have been withheld from the  petitioner right up to the 11th July, 1980. [686G- 687C.].      (2) Copies  of the  panchnama prepared  at the  time of recovery of  silver bags  and supplied  to the detenu in the instant case, cannot amount to giving him full notice of the case or  furnishing of all materials which he needed to make his  representation.  It  was  incumbent  on  the  detaining authority to supply 683 copies of  those statements  to the petitioner to enable him to make  an effective  representation and  that is  what was actually done  on the  11th July,  1980 although  it was too late then  to be  of any  real use to the petitioner who had already submitted  his representation at the instance of the Advisory Board. [687D-F].      (3)  It  is  absolutely  necessary  for  the  detaining authority to  chalk out  for themselves  a  procedure  which ensures  speedy   and  effective  disposal  of  demands  for documents forming  the basis  of the  grounds  of  detention orders passed  by them  in future.  The best course would be for the  detaining authorities  to retain copies of all such documents while  passing the  order of  detention itself  to make them available to the detenu as soon as demand therefor is made  and without  addressing others  on the subject. The next best  thing would  be for  the detaining  authority  to forward the  requisition for  copies  of  documents  to  the officer having  their custody  with  a  direction  that  the latter shall  with all  convenient speed despatch the copies direct to  the detenu  at the place of his detention. It may further be  desirable for  directions to  be issued  to  all authorities to  whom the custody of the detenus is entrusted that they  shall make  available to the detenu concerned all the documents  received in  that  behalf  as  soon  as  such documents reach those authorities. [688B-D].      Per Iyer, J. (concurring observations) : (1) The law of liberty is  often the  battle for  principles of  procedural protection; but  ’great  principles  seldom  escape  working injustice in  particular things’.  And when  an  anti-social element  gets  away  with  it,  society  is  the  victim  of injustice. [688F].      (2)  The   judicial  process  is  itself  no  model  of perfection  in   promptitude  of   disposal  and   may  well sympathise with  laggards elsewhere.  But personal  liberty, constitutionally sanctified, is too dear a value to admit of relaxation. And preventive detention being no substitute for prosecution, the criminal law stands stultified by the State itself if  a charge  is not  laid before  court with  utmost speed and the crime is not punished with deserving severity. The rule  of law has many unsuspected enemies, and remember, limping  legal  process  as  well  as  slumbering  executive echelons are contributories to social injustice. [689F-G].      (3) It is an imperative of social justice through State action that  white collar robbers, dubiously respectable and professionally ingenious,  reap the  wages  of  their  sins, namely, preventive  detention and  prompt prosecution,  both according to  law. Here, by not supplying promptly copies of the incriminating  materials by  an indifferent  authority a

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detention is being judicially demolished. [689D].

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 2193 of 1980.            (Under Article 32 of the Constitution)      A. K. Sen and Harjinder Singh for the Petitioner.      Sushil Kumar  and Miss A. Subhashini for Respondent No. 1 O. P. Rana and M. N. Shroff for Respondent No. 2.      The following Judgments were delivered:      KOSHAL, J.-The  prayer  made  in  this  petition  under article  32  of  the  Constitution  of  India  is  that  the petitioner who has been 684 detained in  pursuance of  an order  dated the 29th May 1980 issued by  the Government  of Maharashtra in exercise of the powers conferred  on it  by clause  (a) of  section 5 of the Conversion of  Foreign Exchange  and Prevention of Smuggling Activities Act,  1974 (hereinafter  referred to  as the Act) shall be  immediately released from custody which, according to him, is illegal.      2. The  arrest of  the petitioner  in pursuance  of the order above  mentioned was  effected on  the 4th  June 1980, when a  communication addressed  to him  and signed  by  the Under Secretary  to  the  Government  of  Maharashtra,  Home Department,  was   delivered  to   him.  That  communication contained the grounds on the basis of which the petitioner’s detention had  been  ordered.  A  resume  of  those  grounds appears below:      (a)   On the  3rd February  1980 the petitioner went to           the Airport  at Bombay  and tried  to have  a  bag           cleared at  the Customs counter with the object of           smuggling 19  silver bars having a total weight of           17.5 kgs  out of  the country  through one  U.  C.           Sajindran. The attempt was foiled by reason of the           vigilance of the Customs Officer concerned.      (b)   On the 4th February 1980, 92 silver bars weighing           83 kgs  in all  and valued at Rs. 2,65,600.00 were           recovered from  the residence  of  the  petitioner           being flat  No. 9,  Nawroji Mansion, 31, Woodhouse           Road, Colaba,  Bombay by  the Customs authorities.           These bars  were also meant for being smuggled out           of the country.      On the  6th June 1980 the petitioner, while in custody, demanded from the Under Secretary above mentioned, through a letter      of       that      date,       all      relevant "material/statements/documents" to  enable him  to  make  an effective representation  against his  detention. The letter evoked no  response till the 3rd of July 1980 before when he received a  communication dated  20th  June  1980  from  the Secretary to  the Advisory  Board constituted  under the Act informing him  that if  he wanted  to make  a representation against his  detention he  must  do  so  "immediately".  The petitioner waited  for the  documents he  had asked  for and ultimately  on   the  3rd   of  July   1980  he   sent   his representation to  the Secretary  of the  Advisory Board and simultaneously  repeated  his  request  for  the  supply  of documents, etc.  to the  Under Secretary above mentioned. It was on  the 11th  of July  1980 that copies of the documents forming the  evidence in support of the grounds of detention were furnished to the petitioner.      3. The sole contention urged in support of the petition is  that   the  petitioner   was  not  given  any  effective opportunity to make a.

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685 representation  against   his  detention   inasmuch  as  the documents above  mentioned were not supplied to him in time. The contention  is sought  to be countered by an explanation for the  delay by reason of which the documents could not be supplied to him till the 11th of July 1980. That explanation is  contained   in  two  affidavits,  one  sworn  by  C.  R. Mulherkar,   Deputy   Secretary   to   the   Government   of Maharashtra, Home  Department, and  the other  by Shri S. G. Rege,  Assistant   Collector  of   Customs,  Rummaging   and Intelligence and  COFEPOSA Cell,  Bombay. According  to Shri Mulherkar, the explanation for the delay is as follows:           "I say  that the  letter, dated  6-6-80 asking for      the copies  of the statement and documents was received      in the  Home Department  on 10-6-80.  As  the  original      statements and documents, after they were considered by      Smt. Malati  Tambay-Vaidya,  were  taken  back  by  the      Customs Authority for further investigation, by letter,      dated 12-6-80, the letter dated 6-6-80 was forwarded to      the  Assistant   Collector  of  Customs  for  necessary      remarks. By  letter dated  24-6-80, Assistant Collector      of Customs  forwarded  the  copies  of  statements  and      documents running into 31 pages. On 24th June, and 25th      June, 1980,  the Mantralaya  was closed  due to the sad      demise of  Shri Sanjay  Gandhi  and  Shri  V.  V.  Giri      respectively. The said copies were, therefore, received      in the  Home Department  on 26-6-80. I say the 28th and      29th June  1980 were  holidays being  4th Saturday  and      Sunday respectively.  The papers were forwarded to Smt.      Malati Tambay-Vaidya through proper channel on 2nd July      1980 and  she passed  the order  on 3rd  July 1980. The      copies of  statements and  documents were  forwarded to      the detenu on 4th July 1980, which were received in the      Nasik Central  Prison, Nasik, on 7th July 1980, and the      same were  handed over  to the detenu on 7th July 1980,      at the  time of  his transfer  to  the  Bombay  Central      Prison for  court production purpose which was fixed on      the 9-7-1980.  But the  petitioner did  not accept  the      same since  he was  in hurry  to go to Bombay. However,      the  aforesaid   documents  were   delivered   to   the      petitioner on  11th July  1980 through  Bombay  Central      Prison, Bombay.  A copy  of the report, dated 23rd July      1980, received  from  the  Superintendent,  Nasik  Road      Central  Prison,   Nasik  is   annexed  herewith.   The      reminder, dated  3-7-1980, sent  by the  petitioner was      received in  the Home  Department on  9-7-1980. As  the      copies were  already forwarded on 4-7-80, no action was      taken on  the said  reminder. I  say that the copies of      statements and  documents were  supplied to  the detenu      with reasonable expedition." 686      The relevant  portion of Shri Rege’s affidavit may also be extracted:           "I say  the representation,  dated 6th  June 1980,      which was forwarded by the Home Department on 12th June      was received  in my  Department on 13th June, 1980. The      14th June,  15th June  and 22nd June 1980 were holidays      being second  Saturday, Sunday and Sunday respectively.      I say the statements and documents were running into 31      pages.  I   further  say  during  the  same  period  my      Department was  busy in preparing remarks in respect of      five other  representations received  from the COFEPOSA      detenus:-                "(1) Shri Mahendra Choraria                 (2) Shri Pravin Kapur

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               (3) Shri Bekal Molddeen                 (4) Shri Giridharlal Soni                 (5) Shri A. S. Rana.           "I say  in respect  of the  representation of  Mr.      Choraria my  Department was  required to prepare copies      of the  statements and documents running into 89 pages.      In view  of this  heavy pressure of work, my Department      sent the  copies of  statements and  documents on  24th      June 1980.  As the  Mantralaya was  closed on 24th June      and 25th  June due  to the  sad demise  of Shri  Sanjay      Gandhi and  Shri V. V. Giri respectively, the same were      forwarded to the Home Department on 26th June 1980."      The two affidavits, taken together show that in between the receipt  by the  Home Department of the letter dated 6th June 1980  containing a  demand by  the petitioner  for  the supply of  copies of documents, and such supply, there was a gap of  32 days  (10th June  to 11th  July 1980). And it was during  this   gap  that   the  petitioner   submitted   his representation unaided  by those  documents, which he did on the 3rd  July 1980,  in response to the letter issued to him by the  Secretary of the Advisory Board and requiring him to submit his  representation "immediately".  The period  of 32 days could very well have been cut short considerably if the authorities concerned  had acted  with promptitude. It would be seen that not even an attempt has been made to explain as to why no attention was paid to the demand for the supply of the copies on the 10th, 11th, 12th, 26th, 27th and 30th June and the  1st July,  1980. On  all these  dates the  file was lying unattended  in the  Home Department.  We  also  cannot appreciate the  procedure adopted  by the Home Department in asking the Assistant Collector of Customs to send his 687      "necessary remarks".  For one  thing, all the documents should have  been available with the detaining authority and if their  originals had  been taken  away by  the  Assistant Collector of Customs, their copies should have been retained in the  Home Department for being furnished to the detenu on demand. Secondly,  there was no impediment in the way of the Home Department  requiring, through  its letter  dated  12th June 1980, the Assistant Collector of Customs to furnish the copies direct  to the  detenu at  the Nasik  Central Prison, Nasik. Thirdly,  the reason for the delay of 4 days from the 7th July  to the  11th July  1980 cannot  be accepted at its face value.  The petitioner  was in  custody  at  the  Nasik Prison and there was no question of his being "in a hurry to go to  Bombay" and it appears that the documents were really withheld from  the petitioner right up to the 11th July 1980 for reasons  best known  to the  authorities. As  it is, the manner in  which the demand for the copies was shuttled from officer to  officer and a period of no less than 13 days was taken by  the Assistant  Collector of Customs to prepare and despatch the  copies renders  the explanation  anything  but satisfactory.      4. In  the situation above detailed learned counsel for the respondents  contended  that  the  petitioner  had  been supplied with  copies of the panchnamas prepared at the time of the  seizure of  the bag  on the 3rd February 1980 and of the recovery  of silver  from his  house on the next day and that the  two panchnamas  gave the petitioner full notice of the case against him and furnished all the material which he needed to  make his representation. The contention is wholly without force  inasmuch as  numerous statements  which  were recorded on  the two  occasions when  the goods were seized, including those  of U.C.  Sajindran, the  Customs Officer at the  Airport   counter  and  the  petitioner  himself,  were

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admittedly recorded  by the concerned authorities and formed an important  part of  the material  on which the grounds of detention were  based. It  was, therefore,  incumbent on the detaining authority  to supply copies of those statements to the  petitioner   to  enable   him  to   make  an  effective representation and  that is  what was  actually done  on the 11th July  1980 although  it was  too late then to be of any real use  to the  petitioner who  had already  submitted his representation.      5. It  is now  settled law that the detaining authority is bound  to give  opportunity  to  the  detenu  to  make  a representation against  his detention  and also  to consider the same  as early  as possible  and that  any  unreasonable delay in  furnishing to the detenu copies of documents which form the basis of the grounds of detention amounts to denial to him  of such  opportunity (vide  Ramchandra A.  Kamat  v. Union of  India and  Others, [1980]  2 Supreme  Court  Cases 270). 688 And it  goes without  saying that such denial of opportunity makes the  detention itself  illegal. That  precisely is the situation  which   obtains  in  the  present  case  and  the petitioner is, therefore, entitled to be released forthwith.      6. Before  parting with  this judgment we might impress upon the  respondents the  necessity  of  chalking  out  for themselves a  procedure which  ensures speedy  and effective disposal of  demands for  documents forming the basis of the grounds of  detention orders  passed  in  future.  The  best course would be for the detaining authority to retain copies of all  such documents  while passing the order of detention itself and to make them available to the detenu as soon as a demand therefor is made and without addressing others on the subject. If  the adoption  of such  a course be not feasible the next  best thing would be for the detaining authority to forward the  requisition for  copies  of  documents  to  the officer having  their custody  with  a  direction  that  the latter shall  with all  convenient speed despatch the copies direct to  the detenu  at the place of his detention. It may further be  desirable for  directions to  be issued  to  all authorities to  whom the custody of the detenus is entrusted that they  shall make  available to the detenu concerned all the documents  received in  that  behalf  as  soon  as  such documents reach those authorities.      7. For  the reasons  stated  we  accept  the  petition, declare the  detention of  the petitioner  to be illegal and direct his immediate release from custody.      KRISHNA IYER, J.-I agree with the reasons, observations and holding  of my learned brother in his judgment on behalf of both  of us.  A brief  supplement of  my own, for reasons which will  be apparent,  may not  be out  of place and so I append my separate, concurring opinion.      The law  of liberty  is often the battle for principles of  procedural  protection;  but  ’great  principles  seldom escape working  injustice in particular things’. And when an anti-social element gets away with it, society is the victim of injustice.  This grim  comment is  inevitable in the case before us  where the  petitioner has  been detained  without trial and  seeks to  free himself  on the score of breach of basic requirements. My learned brother has explained how the violation, on  the strength  of the  rulings of  this court, vitiates the  detention. Under  our legal system, precedents bind and  so, here  we obey  them and  direct release of the detenu. Even so, the facts of the case strongly savour of an economic offender  intercepted in  his  subterranean  silver operations and  betrayed by  his collaborator. Nevertheless,

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the law is equal and hard cases cannot make bad law. That 689 is why the petitioner must succeed. And, may be, he has some convincing  case   if  given  an  effective  opportunity  to explain. Who knows ?      What surprises  me, however, is the Executive’s strange indifference to  compliance with  law’s requirements despite this  court’s  pronouncements.  This  has  resulted  in  the release  of   one  who,  the  State  alleges,  is  a  master strategist of  smuggling exploits  at  the  expense  of  the national economy.  If there  be truth in that imputation,-it is not  for me  to express  any  view,  especially  since  a prosecution  may   be   launched-who   but   the   concerned authorities are  to blame?  Had the  functionaries entrusted with the  drastic detention  power been  careful  enough  to update  their   procedures  in   keeping  with   the  strict directives laid  down by this court the prospect of criminal adventurists continuing  their precious  metal traffic could have  been   pre-empted   constitutionally   by   successful preventive detention.  Had the  rulings of  this court, from time to  time, in  the precious  area  of  personal  liberty versus preventive  detention, been  converted into pragmatic ’instructions’  by   a  special  cell  the  law  would  have fulfilled itself  and served the nation with social justice. It is  an imperative  of social justice through State action that  white   collar  robbers,   dubiously  respectable  and professionally ingenious,  reap the  wages  of  their  sins, viz., preventive  detention  and  prompt  prosecution,  both according to  law. Here, by not supplying promptly copies of the incriminating  materials by  an indifferent  authority a detention is  being judicially  demolished. And  prosecution for a  serious  offence  is  enjoying  an  occult  spell  of gestation because  of official  slow  motion.  Whether  this court’s insistence on the need to explain every day of delay in serving  copies of  every document  on the detenu, is too tall an  order in  an atmosphere  of habitual  institutional paper-logging and  hibernating  is  too  late  to  ask.  The judicial process-if one may self-critically lament-is itself no model  of perfection  in promptitude  of disposal and may well  sympathise   with  laggards  elsewhere.  But  personal liberty, constitutionally sanctified, is too dear a value to admit of  relaxation.  And  preventive  detention  being  no substitute  for   prosecution,  the   criminal  law   stands stultified by  the State  itself if  a charge  is  not  laid before court with utmost speed and the crime is not punished with  deserving   severity.  The   rule  of   law  has  many unsuspected enemies,  and remember, limping legal process as well as  slumbering executive echelons are contributories to social injustice.      I make  these separate  observations in  the fond  hope that  an   effective  courier  between  the  court  and  the Administration will  function so  that every  ruling of  the higher  courts   is   promptly   reflected   in   imperative instructions to concerned officers so that obviable errors 690 do not fatally flaw otherwise justifiable executive actions. What impels  me to  write this  brief note  is the  restless thought that  law is  no glittering abstraction in the books but  translation  of  legislation  into  corrective  action. Surely, judged  by actualities,  judicial and administrative justicing, have many ’promises to keep’. S. R.                                      Petition allowed. 691

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