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Mohd. HussaIn Vs. Secretary, Govt. of Maharashtra, Home Department, Mantralaya, Bombay and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 2038 of 1981
Judge
Reported in(1982)84BOMLR379; 1982CriLJ1848
ActsConstitution Of India - Article 22; Cofeposa - Sections 3 and 3(3)
AppellantMohd. Hussain
RespondentSecretary, Govt. of Maharashtra, Home Department, Mantralaya, Bombay and Others
Excerpt:
constitution of india article 22(4) and (5) - conservation of foreign exchange and prevention of smuggling activities act (lii of 1974), sections 3(1), 3(2), 11 -- documents not relied upon in grounds of detention but merely referred to incidentally or casually whether and taken required to be supplied to detenu -- implications of clauses (4) and (5) of article 22 of constitution -- whether detenu has to be informed of his right to make representation to advisory board while serving grounds of detention -- order of detention whether to be considered made only when communicated.;the copies of all the documents which are relied upon in or which form the basis of the grounds of detention must be supplied to the detenu along with grounds of detention. ;the documents which are not relied upon.....sawant, j.1. by this habeas corpus petition filed under art. 226 of the constitution, the petitioner has challenged his detention under order dated 5-10-1981 issued by the state government in exercise of the powers under sub-section (1) of s. 3 of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter referred to as the 'act').2. shri merchant, the learned counsel for the petitioner has raised the following four contentions in support of the said challenge viz. (1) that the detaining authority has taken into consideration extraneous and irrelevant material for coming to the conclusion that the petitioner had indulged, and was indulging, in smuggling of goods as stated in the grounds supporting the detention; (2) that the petitioner was not.....
Judgment:

Sawant, J.

1. By this habeas corpus petition filed under Art. 226 of the Constitution, the petitioner has challenged his detention under order dated 5-10-1981 issued by the State Government in exercise of the powers under sub-section (1) of S. 3 of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act').

2. Shri Merchant, the learned counsel for the petitioner has raised the following four contentions in support of the said challenge viz. (1) that the detaining authority has taken into consideration extraneous and irrelevant material for coming to the conclusion that the petitioner had indulged, and was indulging, in smuggling of goods as stated in the grounds supporting the detention; (2) that the petitioner was not supplied with the relevant documents to enable him to make an effective representation against the detention order and thus was deprived of an opportunity to make such representation; (3) that the detaining authority had not communicated to the petitioner at the time of service of the detention order upon him, of his right to make a representation as well as of the right to be heard before the Advisory Board and (4) the State Government had not forwarded to the Central Government its report in respect of the detention order within 10 days and had thus committed a breach of the mandatory provisions of Sub-section (2) of S. 3 of the Act.

3. In support of the first contention viz., that the detaining authority had taken into consideration extraneous and irrelevant material before coming to its conclusion that the petitioner had smuggled gold and was indulging in smuggling gold and it was necessary to prevent him from indulging in such activities in future, Shri Merchant relied upon the fact that in para 1 of the grounds of detention supplied along with the detention order, the detaining authority has mentioned four facts as detailed in sub-paras (a) to (d). While he did not quarrel with the contents of sub-para (a), according to him, the contents of sub-paras (b), (c) and (d) had no relevance to the conclusion that the petitioner had intentionally smuggled gold into India. In sub-para (b) it is stated that foreign currency viz. US $ 780 and UAE Dirhams 145 in addition to dutiable goods valued at Rs. 6546 were recovered by the Customs Officers when the petitioner was searched. In sub-para (c) It is stated that the petitioner in his statement under S. 108 of the Customs Act had, among other things, stated that he was having a tea-stall and a barber shop in Abu Dhabi from which he earned about 4000 Dirhams per month and that on 13-6-1981 he had arrived from Abu Dhabi by Air India Flight Al-908 and that when the Customs Officer in plain clothes questioned him as to whether he was carrying any contraband such as gold, wrist watches, etc, in his baggage or on his person, he replied in the negative. It is also further stated there that the petitioner admitted the recovery of total six gold biscuits weighing 10 tolas each, from his as well as the foreign currency mentioned in sub-para (b). Sub-para (d) states that the petitioner in his statement meaning the statement under Section 108 of the Customs Act, has further stated that the passport although the photograph pasted on the passport was his. It is also stated in the sub-para that the petitioner deposed that the gold which he smuggled was purchased by him for 35,000 Dirhams and that it was purchased out of his own savings as well as with the help of the amount borrowed from four persons and that the said amount was to be returned to the relatives in India after the gold biscuits were sold at profit. The sub-para goes on to state that the petitioner admitted that he deliberately smuggled the gold into India although he was aware that bringing gold into India was an offence and was punishable under the law.

4. In order to appreciate this contention, it has first to be noted that the letter containing the grounds of detention consists of four paras. The first para which is divided into four sub-paras (a) to (d) mentions the facts on which the detaining authority had come to its conclusion and the conclusion itself is stated in para 2. Para 1 beings as follows :-

'the Detention Order No. ......... has been made against you by the Government of Maharashtra, Home Department on the ground formulated by Government, which is as follows :-'

Then follows sub-paras (a) to (d). We have already summarised the contents of sub-paras (b) to (d), sub-para (a) States that on 13-6-1981 the petitioner arrived at Bombay by Air India Flight Al 908 from Abu Dhabl. At that time, he had a blue aviation zipper bag, one attache brief case and one plastic shopping bag as his luggage. He presented the said baggage at the Customs counter for clearance. The baggage was about to be cleared on payment of duty on one radio cassette. Before that, an Intelligence Officer suspected the movements of the petitioner and interrogated him as to whether he was carrying any gold, watches etc. in his baggage or on his person. His baggage was then re-examined in detail in the presence of panchas and this search resulted in the recovery of one gold biscuit of ten tolas in a 'Yardley' powder tin. The aforesaid biscuit was found wrapped in cotton and mixed with the powder in the tin. Thereafter, his personal search was taken which led to a further recovery of three gold biscuits from the cavity made inside the right shoe and an additional recovery of two gold biscuits from the cavity in the left shoe. Thus, in all, six gold biscuits weighing totally 60 tolas and valued at Rs. 1,14,384/- were seized in the reasonable belief that they were smuggled gold liable to confiscation under the Customs Act. Sub-paras to (d) follow the narration of the aforesaid facts in sub-para (a). Then follows the conclusion arrived at by the detaining authority which is mentioned in para 2 in the following language :-

'2. From all that has been stated above, Government considers that it is clear that you Mohamed Hussain had intentionally smuggled gold bullion into India. From what has been disclosed above Government is satisfied that you should be detained under ....... with a view to preventing you from indulging in such activities in future.'

5. As has been stated earlier, Shri Merchant had no grievance with regard to what is stated in sub-para (a) because according to him what is stated there may be germane to the conclusion arrived at in para 2. He however submitted that the contents of sub-para (b) to (d) had no relevance whatsoever and were therefore extraneous to the aforesaid conclusion mentioned in para 2. It must be noted in this connection that Shri Merchant has not and probably wise by, advanced an argument that what is stated in sub-paras (a) to (d) are the different grounds of detention, since even if it were so by virtue of the provisions of S. 5A of the Act, the order was not liable to be struck down. His contention is, on the other hand, as stated earlier that what is stated in sub-paras (b) to (d) is extraneous to the conclusion arrived at in para 2. We are not impressed by this argument. As is clear from the summary of the contents of sub-paras (a) to (d) (which we have given above) the detaining authority, after stating the fact in sub-para (a) that on the day in question six gold biscuits of the stated weight and value were seized from the baggage and the person of the petitioner, has gone on to refer to the other facts in that connection viz. that at that very time some foreign currency as well as dutiable goods which were admittedly not declared were also seized from the petitioner. It is also further mentioned that the petitioner had in his statement under S. 108 of the Customs Act also admitted that the said gold biscuits and the foreign currencies were recovered from him, although he had at first denied that he was carrying any contraband on his person or in his baggage and that his monthly income was not more than 4000 Dirhams. In addition a further admission made by the petitioner has also been adverted to viz that in his said statement under S. 108, he had admitted that the passport on which he arrived was a bogus one; that it was not his, but only his photograph was pasted on it. The next admission of the petitioner has also been referred to viz. that the gold smuggled was purchased by him for 35000 Dirhams and that the same was to be sold and that some of the amount which went for the purchase of the said gold and which was borrowed was to be paid to the relatives of the borrowers in India after the sale. Thus the facts stated in sub-paras (b) to (d) are either supportive of or incidental to the material fact in sub-para (a). They cannot be said to be irrelevant or extraneous. They support rather than vitiate the conclusion.

6. As regards the second contention viz. that the petitioner was not supplied with certain documents which allegedly prejudiced his right to make an effective representation, Shri Merchant submitted that firstly the petitioner was not given all the pages of the passport which was seized from him and which was relied upon by the detaining authority in the grounds of detention. On the other hand, what was given to him was only a part of the passport viz. three pages of the same. The other documents, for the non-supply of which he made a grievance, was letter and a card which were taken charge of from the petitioner at the time of his search. As far as the letter and the card are concerned. Shri Merchant contended that they were referred to in the panchanama dated 13-6-1981 and this panchanama was taken into consideration by the detaining authority while passing the order of detention.

As regards the grievance in respect of the non-supply of the rest of the pages of the passport, it is not correct to state that the detaining authority had relied upon or taken into consideration the passport at all. In sub-para (d) of para 1 of the grounds of detention, what has been referred to is the fact that the petitioner in his statement under S. 108 of the Customs Act had admitted that the passport on which the petitioner arrived in India was a bogus one and that it was not his passport although the petitioner's photograph was pasted on it. This is the only reference to the passport in the grounds of detention. While dealing with this grievance of the petitioner, in para 6 of the affidavit-in-reply filed by the Secretary to the Government of Maharashtra on behalf of the State Government which is the detaining authority, the Secretary has stated as follows :-

'With reference to para 5 of the petition, I say that I have considered only 3 pages of the passport while passing the order of detention. I say that the said 3 pages, of the passport show that the petitioner's photograph is affixed on the said passport while the name and address are not that of the petitioner which clearly establishes that the said passport was a bogus passport. I say that even though the said passport shows earlier trips of the detenu, as the detenu in his statement has mentioned that he had not smuggled hold during his earlier trips, I have not relied on the said earlier trips. I say that the petitioner in his statement dated 13th June, 1981 has clearly admitted that the said passport is in fact not his own passport but it bears his photograph only and the same was obtained from one Shri Sayyad Ali on payment of Rs. 500/- in 1972 ...........'

Shri Merchant tried to rely upon the last but one sentence in the aforesaid statement viz. 'that even though the said passport shows earlier trips of the detenu, as the detenu in his statement has mentioned that he had not smuggled gold during his earlier trips, I have not relied on the said earlier trips', and contended that the said statement shows that the detaining authority had in fact perused the other pages of the passport for arriving at the conclusion stated in para 2 of the ground of detention. We are unable to appreciate this contention. In the grounds of detention as pointed out earlier, the only fact with regard to the passport which has been mentioned is the statement of the petitioner that the passport was a bogus one and that it was not his, although the photograph upon it was, his. The Secretary has made the aforesaid statement because it was specifically alleged in para 5 of the petition that the other pages of the passport showing the earlier visits of the petitioner to Bombay were not furnished to the petitioner with the result that he could not make any effective representation to point out that the same passport had been used by him in the past and the story that the passport was a bogus one was absolutely false and fabricated and introduced by the Customs Officers in his statement. In this connection it must be noted that admittedly the petitioner has retracted his statement made before the Customs Officer under S. 108 of the Customs Act and to which both the petitioner as well as the detaining authority have made a reference. Further, in view of the admission of the petitioner that the passport in question was not his but a bogus one, it was not necessary to refer to the passport itself and in fact in the grounds of detention, the detaining authority has not referred to the passport at all but only to the said admission. The said statement has been made by the Secretary in his affidavit as stated above only to deal with the allegations of the petitioner in the petition that if the other pages were given that would have shown that he had also made previous trips to Bombay in the past on the very same passport. When the detaining authority had not relied upon the contents of the passport at all while passing the detention order, except the three pages thereof to bear out the truth of the admission made by the petitioner (which admission was never retracted), it was not necessary for the detaining authority to supply to the petitioner the other pages of the passport. If the petitioner however wanted the other pages which were not taken into consideration, there was nothing to prevent the petitioner from making a request for supply of the same. Admittedly, in the present case, the petitioner had never made any request for supply of the other pages of the passport although we are unable to understand as to how the fact that he had made much trips in the past would have disproved his statement that the passport was not a bogus one, it is not for us to say anything in that behalf All that is necessary to point out is that the detaining authority had not erred in giving only such pages of the passport which it had relied upon while arriving at its conclusion. We are in the circumstances satisfied that it was not obligatory on the detaining authority to supply to the petitioner the other pages of the passport.

7. As regards the letter and the card taken possession of from the petitioner under a panchanama of recovery of the same date viz. 13-6-1981, the contention is that the detaining authority was bound to supply to the petitioner not only the said panchanama but also the documents referred to therein, and since the said card and the letter referred to in the panchanama were not supplied, there was an infraction of the provisions of Art. 22(5) of the Constn. inasmuch as it should be held that it prevented the petitioner from making an effective representation. In this connection, reliance was placed on several decisions of the Supreme Court. It has therefore become necessary to deal with the law on this point a little in extenso.

We may usefully begin with the decision of the Supreme Court in Ramchandra A. Kamat's case reported in : [1980]2SCR1072 and decided on 20th February 1980 by a bench of three Judges consisting of S. Murtaza Fazal Ali, P. S. Kailasam and A. D. Koshal, JJ. The Court in paras 6 and 8 of its judgment observed as follows :-

'6. ......... 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 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.'

'8. 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 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 and are expected to be in possession of the detaining authority should be furnished with reasonable expedition.'

The view taken by the Court in this case thus was that the detaining authority should supply to the detenu copies of the documents and statements, etc. referred to in the grounds of detention if and when the detenu applies for the same.

8. In Smt. Icchu Devi Choraria's case decided by P. N. Bhagwati and E. S. Venkatramiah, JJ. on 9-9-1980 and reported in : [1981]1SCR640 of the judgment it is observed as follows :-

'6. Now it is obvious that when Clause (5) of Art. 22 and sub-sec. (3) of S. 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 Art. 22 in order to constitute compliance with Clause (5) of the Art. 22 and S. 3 subsec. (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 Art. 22 read with S. 3, Sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to Clause (6) of Art. 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and 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 Art. 22 read with S. 3, Sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void.'

In that case the documents, statements and other materials relied upon in the grounds and forming part of them were not served on the detenu along with the grounds on 4-6-1980. The detenu, therefore, by his letter dated 6-6-1980, made a request for sending at the earliest all statements, documents and materials relied upon in the grounds of detention in order to enable him to make an effective representation against his detention. But copies of the documents, statements and other materials were not supplied to the detenu until 11-7-1980 and copies of the tapes were furnished on 20-7-1980. The Court therefore held that there was an infraction of the provisions of Art. 22(5) of the Constitution read with Section 3(3) of the Act and hence the continuance of detention of the detenu after 19-6-1980 which was the outer limit viz. 15 days from the date of detention, was illegal. It is obvious from this decision that the law laid down with regard to the supply of copies of documents relied upon in the grounds of detention is firstly that they are to be supplied to the detenu along with the grounds of detention and secondly in no case later than 15 days from the date of detention, assuming that there are exceptional circumstances and reasons for not supplying the copies within five days as provided in Sub-section (3) of S. 3 of the Act.

9. In Smt. Shalini Soni's case decided by a Bench of two Judges R. S. Sarkaria and O. Chinnappa Reddy, JJ. on 24-10-1980 and reported in : 1980CriLJ1487 reliance is placed amongst others on the aforesaid decisions in Smt. Icchu Devi's case : [1981]1SCR640 as well as in Ganga Ramchand Bharvani's case reported in : 1980CriLJ1263 and it is asserted that in the absence of the full text of the statements referred to and relied upon in the grounds of detention the detenu is disabled from making any effective representation. The argument to the contrary made on behalf of the Union of India-respondents, viz. that in several earlier cases the question that was always considered was whether there was an adequate explanation for the delay in the supply of copies after a request for such copies had been made by the detenu and that the expression 'grounds' had never been understood to comprise factual material as well as factual inferences so that failure to communicate the factual material as part of the 'grounds' was straightway to be treated as an infringement of the rule contained in the first facet of Art. 22(5) was negatived.

10. In S. Gurdip Singh's case decided by S. Murtaza Fazal Ali and A. D. Koshal, JJ. on 13-11-1980 in a decision reported in : 1981CriLJ2 of the judgment it is laid down, relying upon the decisions in Icchu Devi's case : [1981]1SCR640 and Smt. Shalini Soni's case (1980 Cri LJ 1487) (SC) (supra) that if the documents which form the basis of the order of detention are not served on the detenu along with the grounds of detention, in the eye of law there is no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio.

11 In Tushar Thakkar and Mariam Tayabali Zanzibarwala's case decided by R. S. Sarkaria and P. S. Kailasam, JJ. on 3-9-1980 and reported in : 1980CriLJ1492 , the facts were that the documents relied upon in the grounds of detention were not supplied to the detenus. As far as Mariam Tayabali's case was concerned, the detenu was arrested on September 5, 1979 pursuant to the detention order dated August 31, 1979 and the grounds of detention were supplied to him on the same date, On September 8, 1979 the detenu by a letter asked for supply of copies of the documents mentioned in the letter which according to the detenu were necessary to enable him to make an affective and purposeful representation. Since the copies were still not supplied, the detenu through his Advocate wrote another letter on September 15, 1979 enclosing a copy of the detenu's earlier letter dated September 8, 1979 requesting for supply of copies of the documents mentioned therein. In the reply which was received on September 22, 1979, it was stated that instead of the copies, the detenu could inspect the documents in the office of the Collector on September 24, 1979. On September 25, 1979, the detenu's Advocate sent the detenu's representation. No copies of the documents were supplied to the detenu although by another letter dated September 28, 1979, the Assistant Director of Enforcement again made an offer that the detenu could inspect the documents. On October 2, 1979 the detenu through his Advocate addressed a communication stating that it was not possible to take inspection of the documents and that without the copies of the necessary documents it was not possible to prepare the detenu's representation. In this letter, the detenu further informed that he was willing to deposit any advance charges for preparing the copies. This representation was rejected on October 15. 1979. In the meanwhile, the Advisory Board held its meeting and confirmed the detention. It is in the context of these facts that the Court held as follows :

'This Court has repeatedly held that the detenu has a constitutional right under Art. 22(5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition. Delay tends to stultify the detenu's right to make an effective representation and, to have it considered speedily by the authority concerned. The delay in supplying the copies to the detenu, in the facts of the instant case, being inordinate and unreasonable, had vitiated the continuance of his detention.'

So far as Tushar Thakkar's case was concerned, there was an inordinate delay of 24 days in supplying copies of the documents and materials relied upon in the grounds of detention. Even after a lapse of this unreasonable delay, copies of all the materials asked for by the detenu were not supplied to him. The Court therefore stated as follows :-

'This delay of about 24 days in supplying the copies and the non-supply of the copies of the statements of two material witnesses referred to in the grounds of detention has not been satisfactorily explained by the respondents. In the circumstances of this case, also the delay in furnishing the copies of materials to the detenu had violated his constitutional right to make an effective representation and to have it speedily considered by the authority concerned.'

12. In Virendra Singh's case decided on 6-1-1981 by S. Murtaza Fazal Ali and A. Varadarajan, JJ., and reported in : AIR1981SC1909 , the order of detention was passed on 9-10-1980 and the grounds were supplied to the detenu on 1-11-1980 when he was arrested but the documents and materials were supplied to the detenu on 5-11-1980. The detenu made a representation on 13-11-1980 which was disposed of on 13-12-1980. The Court held that since the documents and materials forming the basis of the order of detention had not been supplied to the detenu along with the order of detention when the same was served on him, the order was rendered void. For this proposition, the Court relied upon its earlier decisions in Smt. Icchu Devi's case : [1981]1SCR640 and Smt. Shalini Soni's case : 1980CriLJ1487 (supra).

13. In Kirit Kumar's case decided on 30-1-1981 by S. Murtaza Fazal Ali and A. Varadarajan, JJ. and reported in : [1981]2SCR718 , on merits the only point urged by the detenu before the High Court was whether the two documents which were referred to in the order of detention and which were not supplied to the detenu vitiated the order of detention. The High Court had rejected the contention that the order was void on that account by observing that documents were merely referred to and not relied upon by the detaining authority. The High Court had also examined the documents and found that the same were not relevant. The Supreme Court did not approve of the decision of the High Court. In the first place, the Court took an exception to the course adopted by the High Court 'wading through the confidential file of the Government in order to fish out a point against the detenu'. Secondly, the Court held that the question of relevance was not to be decided by the Court but by the detaining authority which alone had to consider the representation of the detenu on merits and then come to the conclusion whether it should be accepted or rejected. Thereafter, in para. 12, of its judgment, the Court dealt with one of the two additional points with which we are concerned here. In order to understand the point as well as the conclusion arrived at on the same we deem it necessary to reproduce here the entire said para, 12 which is as follows :-

12. The matter does not rest here but two additional points which have been taken in the writ petition before us are sufficient to void the order of detention passed against the detenu. In the first place, it was submitted that the endorsement on the file produced before us by the Government shows that the documents concerned were examined not by the detaining authority but by the Secretary and there is nothing to show that the note or endorsement of the Secretary was placed and approved by the detaining authority. In these circumstances, therefore, it must be held that there was no decision by the detaining authority that the documents were irrelevant. It was, however, submitted by Mr. Phadke that the documents concerned were merely referred to in the grounds of detention but did not form the basis of the subjective satisfaction of detaining authority at the time when it passed the order of detention. It was, however, conceded by Mr. Phadke that before the grounds were served on the petitioner, the documents were placed before the detaining authority and were, therefore, referred to in the grounds of detention. It is manifest therefore, that the subjective satisfaction could only be ascertained from or reflected in the grounds of the order of detention passed against the detenu otherwise without giving the grounds the mere subjective satisfaction of detaining authority would make the order of detention incomplete and ineffective. Once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention. There is, no particular charm in the expressions 'relied on', 'referred to' or 'based on' because ultimately all these expressions 'relied on', 'referred to' or 'based on' because ultimately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds have been referred to, relied on or based on merely a matter of describing the nature of the grounds. Even so in the case of Ram Chandra A. Kamat v. Union of India, : [1980]2SCR1072 a three Judge Bench decision of this Court to which one of us (Fazal Ali, J.) was a party, clearly held that even the documents referred to in the grounds of detention have to be furnished to the detenu. In this connection the Court observed as follows (at p. 767 of AIR) :-

'If there is undue delay in furnishing the statements 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.'

The same view was taken in a later decision of this Court in Tushar Thakkar v. Union of India, : 1980CriLJ1492 , where this Court observed as follows (at p. 439 of AIR) : (at p. 1495 of Cri LJ) :

'This Court has repeatedly held that the detenu has a constitutional right under Art 22(5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition.'

Thus, it is absolutely clear to us that whether the documents concerned are referred to, relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. This not having been done in the present case the continued detention of the petitioner must be held to be void.'

It is not clear from the facts appearing in the decision whether in the aforesaid case the detenu had requested for the documents which were referred to in the grounds of detention and the said request was rejected, because in both Kamat's case : [1980]2SCR1072 and Tushar Thakkar's case : 1980CriLJ1492 which have been relied upon by their Lordships in the above case, the detenu had requested for the documents which were referred to in the grounds of detention and yet the same were not supplied to him, and it is with reference to the said state of affairs that in both the said cases the Supreme Court had held that if the detenu required the documents which are referred to in the grounds of detention, the non-supply of the same deprives him of his right to make an effective representation within the meaning of Art. 22(5) of the Constitution. In all other cases, the Supreme Court has taken the view that if the documents are relied upon or form the basis of the grounds of detention, they must be supplied to the detenu at the time of the service of the grounds of detention. In fact, the Court has, in this later decision taken the view that it is not the failure to supply every document which is referred to in the grounds of detention which vitiates the order of detention but it is the non-supply or only those documents which are relied upon by the detaining authority which vitiates the fundamental right guaranteed under Art 22(5) of the Constitution.

14. Then follow three important decisions in this behalf which however do not refer to Kirit Kumar's case 1981 Cri LJ 1267 (supra) although they are decided later in point of time.

In Mehrunissa's case decided on 17-2-1981 by O. Chinnappa Reddy and Baharul Islam, JJ., and reported in : 1981CriLJ1283 , admittedly the copies of the material documents referred to in the grounds of detention were not supplied to the detenu. The documents were the panchanama which was recorded at the time of the seizure of the silver and the statement made by the detenu in the enquiry under Section 108 of the Customs Act. The argument on behalf of the respondent State was that the copies of the documents were not supplied to the detenu as the detenu was already aware of the contents of the documents. The Court held that it was hardly an answer to the submission made on behalf of the detenu. The detenu was entitled to be supplied with copies of all the material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure of the detaining authority to supply copies of the documents vitiated the detention. For this proposition again the Court relied upon the earlier two decisions in Smt. Icchu Devi : [1981]1SCR640 and Smt. Shalini Soni's : 1980CriLJ1487 cases.

15. In Mst. L. M. S. Ummu Saleema's case decided on 4-5-1981 by O. Chinnappa Reddy, A. P. Sen and Baharul Islam, JJ and reported in : [1981]3SCR647 , the facts were that on 2-2-1981 the detenu was served with the order as well as the grounds of detention. The detenu made a representation on 4-2-1981 which was rejected on 19-2-1981. One of the contentions raised before the Supreme Court was that the detenu was not served with the material documents upon which reliance was placed in the order of detention served along with the grounds of detention and thereby he was prevented from making an effective representation within the meaning of Art. 22(5) of the Constn. For that purpose reliance was placed on Smt. Icchu Devi : [1981]1SCR640 and Smt. Shalini Soni's : 1980CriLJ1487 case (supra). The two documents with respect to which grievance was made were (1) record of investigation revealing the trunk telephone calls booked from a particular telephone number on certain dates and (2) record of investigation relating to the petrol which was put into a jeep bearing a particular number owned by the brother of the detenu. While dealing with this contention the Supreme Court held as follows AIR 1981 SC :-

'In para 4 of the grounds of detention it is mentioned that when premises No. 66, Malayappan St. Mannady, Madras was being searched on 7-8-1980, a telephone call was received at telephone No. 27115 was in the premises, from telephone No. 315 Kila Karai enquiring about the arrival of the detenu. The information about the call was verified with reference to the record of trunk calls and it was found that on the various dates mentioned trunk calls had been booked from telephone No. 315 at Kilakarai to telephone No. 27115 at Madras. The reference to the record of trunk calls was made for the purpose of verifying the trunk call which was received on 7-8-1980 at telephone No. 27115 in the premises No. 66 Malayappan Street when the Customs Officers were there. After carefully perusing the grounds of detention we find it impossible to hold that the record of trunk calls was one of the documents upon which the detaining authority had relied in making the order of detention.

The reference in the grounds of detention to the petrol put into Jeep No. TMC 1850 was made in the following circumstances. Para 5 of the grounds of detention refers to a statement made by the detenu's brother Shamsuddin on 20-9-1980 in which he stated that his Jeep No. TMC 1850 has not been used during the previous years and that it was kept locked up in a garage. Paragraph 5 then recites that it was kept locked up in a garage. Paragraph 5 then recites that the investigation showed that during the period between 1-6-1980 and 5-8-1980, on as many as 36 occasions petrol had been put into the jeep at various petrol had been put into the jeep at various petrol pumps. Here again we are unable to say, on a perusal of the grounds of detention, that the record of investigation relating to the petrol put into the jeep was in any manner relied upon by the detaining authority in making the order of detention.

Shri Jethmalani's submission was that the detaining authority was under an obligation to supply along with the grounds, copies of all documents to which reference was made in the grounds irrespective of whether such documents were or were not relied upon in making the order of detention. He submitted that the very fact that the documents were mentioned in the grounds established that the documents were relied upon in making the order of detention. We are unable to agree with the submission of Shri Jethmalani. True, it was observed in some cases that copies of documents to which reference was made in the grounds must be supplied to the detenu as part of the grounds (vide Smt. Shalini Soni v. Union of India, : 1980CriLJ1487 ). But these observations must be read in the context in which they were made. In Shalini Soni's case, for example, the observations were made immediately after stating that 'grounds' in Art 22(5) did not mean mere factual inferences but meant factual inferences plus factual material which led to such factual inferences. In Icchu Devi Choraria v. Union of India, : [1981]1SCR640 the Court observed (at p. 1989) :

'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.' The stress was upon the words 'relied upon'. In Khudiram Das v. State of West Bengal : [1975]2SCR832 the Constitutional requirement of Art. 22(5) was stated as insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Art. 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the Fundamental Rights guaranteed by Art. 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. In the case before us we are satisfied that such were the two documents, copies of which were not furnished to the detenu. We are satisfied that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention. Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Art. 22 of the Constitution.'

It is therefore apparent from the aforesaid observations that firstly the Court after carefully examining the grounds of detention came to the conclusion that both the pieces of documents viz., the record of the trunk calls and the record of investigation relating to the petrol, were not relied upon by the detaining authority while making the order of detention. Secondly, the Court has also taken a categorical view that every failure to furnish copy of a document to which reference has been made in the grounds of detention is not an infringement of Art. 22(5) of the Constn. But it is only the failure to furnish copies of such documents as are relied upon by the detaining authority which violated the said fundamental rights. The Court has also observed that it is unnecessary to furnish copies of the documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. According to the Court, the two documents in question were not relied upon by the detaining authority although a reference to them was made in the grounds of detention.

16. The same view has been reiterated by the Supreme Court in Wasi Uddin Ahmed's case decided on 16-10-1981 by A. P. Sen and Baharul Islam, JJ., and reported in : 1981CriLJ1825 . In para 15 of its judgment the Court has observed as follows :-

'In a series of decisions, this Court has, on a construction of Art. 22(5) of the Constitution, read with Sub-section (3) of Section 3 of the COFEPOSA Act, held that 'the right of making an effective representation' carries with it the right to copies of documents relied upon in the grounds of detention. Factual contents of the grounds of detention on which the subjective satisfaction of the detaining authority was based have to be disclosed to the detenu to make an effective representation. It is, however, not necessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of events and which are not relied upon by the detaining authority in making the order or detention.'

For taking this view the Court has relied upon its earlier decisions in Kamat : [1980]2SCR1072 ; Smt. Icchu Devi : [1981]1SCR640 ; Smt. Shalini Soni : 1980CriLJ1487 and Saleema's 1981 Cri LJ 889 cases which we have already discussed above.

17. As pointed out earlier, the three latter decisions in Mehrunissa(SC); Saleema 1981 Cri LJ 889 and Wasi Uddin Ahmed's : 1981CriLJ1825 cases, do not referred to the decision in Kirit Kumar's case. We have already pointed out that it is not possible to know from the Judgment in Kirit Kumar's case 1981 Cri LJ 1267, whether the detenu there had requested for the copies of documents refereed to in the grounds of detention although they were not relied upon and yet they were not supplied and therefore it is not possible for us to know in what context the view viz. whether the documents are referred to, relied upon or from the basis of the grounds of detention, the same must be supplied, has been taken. The decision refers to Kamat's case : [1980]2SCR1072 as well as Thakkar's case : 1980CriLJ1492 in support of the conclusion arrived at there probably the facts in Kirit Kumar's case were similar to those in the said two case viz. that in spite of the request, the detenu was not supplied with the copies of the documents and therefore the view that even if the documents are merely referred to though not relied upon, should be supplied to the detenu when he requests for the same.

We may therefore summaries the law laid down by the Supreme Court on the point as follows :-

(a) the copies of all the documents which are relied upon in or which form the basis of the grounds of detention must be supplied to the detention; (b) the documents which are not relied upon or don not form the basis of the detention order but which are merely referred to casually or incidentally as and by way of narration of facts in the grounds of detention need not be supplied to the detenu; (c) however, even such documents, if the detenu requests for the same, have to be supplied to him, for whether they are relevant to his defence or not is for the detenu to decide and not for the detaining authority to judge.

In the light of the aforesaid position of law which emerges from an examination of law which emerges from an examination of the relevant decisions of the Supreme Court, we have to examine whether in the present case there is an infringement of the petitioner's fundamental right under Art. 22(5). We have already pointed out the circumstance in which the reference to the passport has been made in grounds of detention and held that the pages of the passport other than the three pages (which were admittedly supplied to the petitioner) have not been taken into consideration by the detaining authority while making the order of detention. In fact a reference to the passport is only an incidental one and what is taken into consideration is the statement of the detenu that he had travelled on a bogus passport. As regards the letter and the car, the other two documents, there is nothing in the grounds of detention to show that they have been relied upon or form the basis of the order of detention. There is further nothing to indicate nor was it the argument advanced on behalf of the petitioner that any of these documents were ever requested for by the petitioner to enable him to make a proper representation to the authorities. The grievance has been made for the first time in the petition filed in this Court. We are therefore more than satisfied that there is no infringement of the provisions of Art. 22(5) of the Constitution.

18. That takes us to the next contention of the petitioner viz. that he was not informed at the time of the service of the grounds of detention on him, that he had a right to make a representation as well as of being heard personally before the Advisory Board, and therefore there was an infringement of the provisions of Art. 22(5) of the Constitution. For this proposition, the only authority on which reliance has been placed by Shri Merchant is the decision of the Supreme Court in Wasi Uddin Ahmed's case : 1981CriLJ1825 to which we have made a reference in the context of the earlier contention. In para 18, the Supreme Court has observed as follows :-

'It is unfortunate that there was a failure to mention in the grounds of detention, that the detenu had the right to make a representation against the order of detention as envisaged by Art. 22(5) of the Constitution read with Section 8 of the Act, and also the right of being heard before the Advisory Board while he was served with the order of detention. It is expected of a detaining authority while serving an order od detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. In the present case, the grounds of dentition served upon the detenu do not contain any such recital. It, however, appears that the detenu was furnished a copy of the Constitution on March 25, 1981 at the Central Jail, Fatehgarh, presumably at his own request, for the purpose of making a representation against the order of detention. The words 'and shall afford' in Art. 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in case of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must 'apprise' a detenu of his constitutional right under Art. 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under Art. 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under Art. 22(5) would be, in many cases, of little avail if the detenu is not' informed' of this right. The failure to comply with this requirement, however does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has been in active politics and was, therefore, fully cognisant of his right to make a representation under Art. 22(5) of the Constitution and Under S. 8 of the the Act. In fact, the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board.'

Certain propositions flow from the aforesaid observations and they are as follows :- (1) that the detenu has a right to make a representation against the order of detention and also the right of being heard before and Advisory Board by virtue of the provisions of Art. 22(5) of the Constn, read with S. 8 of the National Security Act, 1980; (2) that it is expected of th detaining authority as a rule to make a mention in the grounds of detention, that the detenu has such a right and (3) the failure to comply with the said requirement viz. of the intimation of such a right does not have the effect of vitiating the order of detention or rendering the continued detention of the detenu illegal in every case. Whether it does or not will depend upon the facts of each case.

19. Before we proceed to discuss the genesis of the aforesaid proposition it is worthwhile to note that the Supreme Court in the above case was dealing with the Provisions of Art. 22(5) of the Constn. read with the relevant provisions of the National Security Act, 1980. The Act which falls for consideration in our case is the COREPOSA Act and whether the conclusions which have been stated above will flow from the provisions of the COREPOSA Act also, will depend upon whether the provisions of the two Acts are similar or not. The provisions of S. 8 of the National Security Act, 1980, are as follows :-

'8. (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than tendencices from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.' The relevant provisions of the COFEPOSA Act though not similar in content but approximate to the aforesaid provisions, are contained in Sub-section (3) of S. 3 of the Act and are as follows :

'3. (1) & (2) ...........................

(3) 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.'

It will now be convenient to reproduce Art. 22(4) and (5) of the Const. They are as follows :

'22. Protection against arrest and detention in certain cases, :-

(1) to (3) ........

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless -

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient causes for such detention : Provided that nothing in this sub-clause shall authorise the detention of prescribe by any law made by Parliament under sub-Clause (b) of Cl (7) or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-cls. (a) and (b) of cl (7).

(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.'

A reading of Clause (4) of Art. 22 shows that there is nothing in it to indicate that the detenu has a right either to make a representation or to be personally hear before the Advisory Board. A scrutiny of Clause (5) of Art. 22 further shows that the representation to be made by the detenu is to the detaining authority and not to any other authority including the Advisory Board. However, the expression 'shall afford him the earliest opportunity of making a representation against the order' in the said clause read with the provisions of Clause (4) the Courts to mean that the representation that the detenu makes under sub-cl. (5) has to be placed before the Advisory Board along with all other material that the detaining authority may forward to the Board, and that the same has to be considered by the Advisory Board while making its report under that clause. It is this view which has led to the further view viz. that the detenu has a right that his representation shall be considered not only by the detaining Advisory Board. There is however nothing either in Cl. (4) or Clause (5) to indicate that a detenu has a right to make a representation to the Advisory Board or that he has a right to be personally heard before the Advisory Board. These rights as we will point out later, flow not from the provisions either of Clause (4) or of Clause (5) of Art 22 but from the specific provisions made in the relevant statutes of detention.

It will be useful in this connection first to refer to the decision of the Supreme Court reported in : [1970]1SCR543 Pankaj Kumar Chakrabarty v. State of West Bangal. In para 10 of its judgment, this is what the Court has held while discussing the implications of Cls. (4) and (5) of Art. 22 of the Constitution (Para 10)

'It is true that Clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions as soon as may be and the earliest opportunity in that clause clearly indicate the grounds are to be saved and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Through Clause (5) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in SK Abdul Karim's Case, W.P. No. 327 of 1968. D/- 31-1-1969 : : 1969CriLJ1446 (Supra) show that Clause (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is through error or otherwise, wrongly arrested and detained. It it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board, But what would happen in cases where the detention is for less that three months and there is no necessity of having the opinion of the Board It counsel's contention were to be right the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation Cl. (5) does not make any distinction between orders of detention for only three months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases. In our view it is clear from Cls. (4) and (5) of Art 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If in the light of the representation the Board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.'

Later on in its decision reported in the same Volume : 1970CriLJ743 Jayanarayan Sukul v. State of West Bangal, the Court while reiterating its earliest view and by specifically referring to Pankaj Kumar's Case : [1970]1SCR543 , has stated in para 20 of its judgment as follows :

'Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible Secondly, the consideration of the representation of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duly of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before, sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government may still exercise the power to release the detenu.'

Both these decisions therefore lay down four distinct propositions. The first is that the detenu has to be given the earliest possible opportunity to make a representation. Secondly, the consideration of the representation by the appropriate authority is entirely independent of the action that the Board may deem necessary to take including the consideration of the very same representation by it. Thirdly, the representation has to be considered expeditiously and without delay and fourthy, before the detenu's case is sent to the Advisory Board, Government is under an obligation to consider and record its opinion on the representation received from the detenu. These, therefore, are the implications of Cls. (4) and (5) of Article 22 of the Constitution, irrespective of the provisions of the relevant statute.

Later on while considering the implications of Clause (5) of Art. 22 of the Constitution in conjunction with S. 11 of the Act with which we are concerned viz. COREPOSA Act, a single Judge of the Supreme Court (D. A. Desai, J.), in a decision reported in : 1979CriLJ1314 Smt. Pushpa v. Union of India, relying upon the earlier decisions of the Supreme Court including Sukul's case to which we have already made a reference, held as follows :-

Para 5.

'....... Clause (5) of Art. 22 of the Constitution makes it obligatory for the authority making an order of preventive detention to communicate to the detenu, as soon as may be, the grounds on which the order has been made and should afford him the earliest opportunity of making a representation against the order. The right to make a representation imposes a corresponding duty on the detaining authority to consider the representation because the representation may furnish such information as may necessitate revocation of the detention order as contemplated by Section 11 of the COFEPOSA. Section 11 confers power for revocation of detention orders. The obligation to furnish grounds for preventive detention and the constitutional rights conferred on the detenu to make a representation on receipt of the grounds of detention when read in the context of Section 11 would spell out a scheme that the representation, if and when made, may furnish such information to the detaining authority which may necessitate revocation of the detention order. Therefore, the importance of the constitutional right to make a representation and the corresponding duty to consider the representation cannot be underestimated and should not be whittled down.'

Paragraph 8

'...... There is nothing in the scheme of Art. 22 or the provisions of the COFEPOSA which requires that the representation ought always to be considered by the appropriate Government notwithstanding the fact that the order of detention has been made by an officer specially empowered in that behalf. Undoubtedly the power to revoke the detention order under S. 11 is conferred on the State Government and the Central Government but that does not imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him, must of necessity be made and considered by the State Government. In fact, the representation can and ought to be made to the detaining authority because it is he who has to apply his mind to the facts of the case and it is he who has to be convinced that the action taken by him is unjustified and requires reconsideration. After all the purpose of a representation is to convince the authority to consider its decision which has resulted in the detention of the detenu. The representation is not in the form of an appeal to the higher authority and, therefore, ipso facto it must go to the State Government, Undoubtedly it would be open to the detenu to make a representation under S. 11 requesting either the State Government or the Central Government, as the case may be, to revoke the order of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to reconsider the same. Therefore, if the detenu made the representation to the third respondent who had passed the detention order it was open to him to consider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the detaining authority and considered by him to the State Government would not vitiate the detention order.'

20. The provisions of Section 11 of the Act which fell for consideration in the aforesaid case are as follows :-

'11. (1) Without prejudice to the provisions of Section 21 of the General Clauses Act., 1897, a detention order may, at any time, be revoked or modified -

(a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;

(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.

(2) The revocation of a detention order shall not bar the making of another detention order under S. 3 against the same person.'

It is therefore obvious both from the provisions of Section 11 of the Act and what the court has held in the aforesaid case with reference to the same read with the provisions of Clause (5) of Art. 22 of the Constitution, that whenever a statute gives a right to make a representation, it is implicit that the representation will have to be considered by the concerned authority and that it has to be done without undue delay.

There is nothing either in the provisions of the Act with which we are concerned viz. COREPOSA Act or Cls. (4) and (5) of Article 22 of the Constitution which requires that the detenu has to be informed of his right to make a representation to the Advisory Board while serving the grounds of detention. The only right that he has is that of being apprised of his right to make a representation to the detaining authority. It may be observed that even in the decision of the Supreme Court referred to above viz., Smt. Pushpa's case : 1979CriLJ1314 , the Court has not gone to the extent of saying that the detenu has to be apprised of his right to make a representation to the detaining authority at the time of serving the grounds of detention itself. There is not doubt however that in Wasi Uddin Ahmed's case : 1981CriLJ1825 , (supra), the Court has made an observation with reference to the provisions of Section 8 of the National Security Act, 1980 read with Clause (5) of Art. 22 of the Constn. that as a matter of rule, the detenu has to be apprised of his right to make such a representation and also of being heard personally before the Advisory Board. We have already reproduced earlier the provisions of S. 8 of the National Security Act, 1980. There is not reference either to the Advisory Board or to the proceedings before it or of any representation to be made to or of personal hearing before the Advisory Board in the said section. Probably, the reference to S. 8 in the body of the judgment is a typographical error and what the learned Judges had in view, with respect, were Sections 9, 10 and 11 of the said Act. Although therefore it is very difficult for us to say as to by reference to which particular provision the said observations have been made, one thing is certain that as far as the reference to Art. 22(5) of the Constn, is concerned the same has been interpreted by the Supreme Court in its earlier judgment in Pankaj Kumar's : [1970]1SCR543 and Jayanarayan Sukul's : 1970CriLJ743 cases (and to which we have already made a reference) and the view taken by the Court there does not spell out any such right. It will therefore be legitimate of us to presume that when in Wasi Uddin Ahmed's case : 1981CriLJ1825 , the Court spelt out such a right, it is with reference to the specific statutory provisions of the National Security Act, 1980. Here again it must be pointed out that the failure to inform of such a right will not vitiate either the order of detention or make the continued detention illegal in each and every case and whether it will do so or not will depend on the facts of each case. It will therefore be better if the detaining authorities take care in each case to apprise the detenu not only of his right to make a representation to them under Clause (5) of Art. 22 of the Constitution but also of the rights given to the detenus under the concerned detention statutes for making such representations and/or or personal hearing as the case may be.

In the present case there is no doubt that the detenu was not apprised of his right of making a representation to the Advisory Board and of his right to be heard personally before the Advisory Board at the time the order of detention was made. In the first instance, we have pointed out that as far as these two rights are concerned, the provisions of Art. 22(5) do not spell out the same. The only right spell out by the said Article is that his representation made to the detaining authority will be considered independently by the Advisory Board Secondly, his right of being personally heard is a right conferred upon him by cl. (c) of S. 8 of the present Act. As far as this right is concerned, the matter to the Advisory Board. If however the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government may still exercise the power to release the detenu.'

Both these decisions therefore lay down four distinct propositions. The first is that the detenu has to be given the earliest possible opportunity to make a representation of the service of the grounds of detention upon him, of his right to make a representation and of being heard personally before the Board, either the order of detention or his detention thereunder has become illegal.

21. As regards the last of the grounds viz. that there was an infraction of the provisions of S. 3(2) of the Act, Shri Merchant pointed out that the order of detention which is of 5th October 1981 was actually passed by the detaining authority on 24th September 1981 and it was served on the detenu on 18-101981. However, the report in respect of the order was made to the Central Government only on 7-10-1981. In terms of the provisions of subsec. (2) of S. 3 of the Act, the State Government is under an obligation to forward to the Central Government the said report within 10 days of the date the order is made, and inasmuch as there was a delay of more than 10 days in sending the report, the continued detention had become illegal. The provisions of the said S. 3(2) are as follows :-

'3. (2). When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.'

There is no dispute that if the date of the order viz. 5-10-1981 is taken to be the date when the order is made within the meaning of the aforesaid provision, the report sent by the State Government to the Central Government on 7-10-1981 will be very much within time. However what is urged by Shri Merchant is that as revealed by the Secretary, the order was actually passed on 24-9-1981 and that should be taken as the date on which the order was made. We do not find any substance in this contention. According to us an order is not made till it is issued. An order made and kept in the drawer or in the file is not an order made for the purpose of the law. There is no reason why a different position should prevail in the case of the present provision. We are more than strengthened in this view by two authorities of the Supreme Court. In : [1961]2SCR371 State of Punjab v. Sodhi Sukhdev Singh, in paragraph 42 of its judgment, the Court has dealt with more or less a similar contention and has observed that until the final order is communicated to the person who is aggrieved by that order, the order cannot be said to have been passed or made. Any decision taken prior to such communication is only tentative or provisional in character. The decision has been followed in a later decision reported in : AIR1963SC395 Bachhittar Singh v. State of Punjab, where it is observed that 'it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.' This case refers to the earlier decision viz. : [1961]2SCR371 .

These two authorities would show that an order cannot be regarded as anything more than a provisional or a tentative one till it is communicated and therefore necessarily the order cannot be said to have been passed or made till that point of time. For our purpose, it is sufficient to hold that the order cannot be said to have been made or passed at least till it is issued ...... For this reason, we are unable to entertain the submission that in the present case, the order was actually made on 24-9-1981. According to us the order came to be passed at the earliest on 5-10-1981 which is the date the order bears and the report of the same which was sent to the Central Government on 7-10-1981 was therefore within time. There was therefore no breach of the provisions of S. 3(2) of the Act.

22. There was no other contention raised in the petition. The petition therefore fails and is dismissed. The rule stands discharged.

23. Petition dismissed.


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