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Mohamed Yusuf Ahmed Vs. S.D. Pradhan, Secretary to the Government of Maharashtra, Home Department and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1443 of 1978
Judge
Reported in(1980)82BOMLR32; 1980CriLJ126
ActsConservation of Foreign Exchange and Preservation of Smuggling Activities Act, 1974 - Sections 3(1), 3(3), 8, 8(1) and 8(3); Constitution of India - Articles 22 and 22(5); Code of Criminal Procedure (CrPC) ; Customs Act, 1962 - Sections 198
AppellantMohamed Yusuf Ahmed
RespondentS.D. Pradhan, Secretary to the Government of Maharashtra, Home Department and ors.
Appellant AdvocateG.A. Merchant, Adv.
Respondent AdvocateM.R. Kotwal, P.P.
Excerpt:
constitution of india, article 22(5) - conservation of foreign exchange and prevention of smuggling activities act (lii of 1974), section 3(3) -- whether a detenu has a right to get copies of investigation papers such as the statements or documents on which the order of his preventive detention is based.;neither the wording of article 22(5) of the constitution nor that of section 3(3) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 indicate that a detenu has a right to get copies of the investigation papers, such as the statements or documents on which the order is based. there is nothing in these provisions to justify an inference that the detenu must be supplied with copies of statements and documents as in a criminal trial under the code of.....p.s. shah, j.1. the petitioner mohmed yusuf ahmed yusuf taxiwala, who has been detained by an order dated october 4, 1978, under the provisions of the conservation of foreign exchange and preservation of smuggling activities act, 1974 (hereinafter referred to as ' the act'), has presented this petition under article 226 of the constitution.2. by an order dated october 4, 1978, shri r.d. pradhan, the secretary to the government of maharashtra, home department, who was specially empowered by the government of maharashtra, under the provision of sub-section (1) of section 3 of the act, directed detention of the petitioner with a view to preventing him from smuggling goods, abetting the smuggling of goods and engaging in keeping smuggled goods. on october 6, 1978, the petitioner was arrested.....
Judgment:

P.S. Shah, J.

1. The petitioner Mohmed Yusuf Ahmed Yusuf Taxiwala, who has been detained by an order dated October 4, 1978, under the provisions of the Conservation of Foreign Exchange and Preservation of Smuggling Activities Act, 1974 (hereinafter referred to as ' the Act'), has presented this petition under Article 226 of the Constitution.

2. By an order dated October 4, 1978, Shri R.D. Pradhan, the Secretary to the Government of Maharashtra, Home Department, who was specially empowered by the Government of Maharashtra, under the provision of sub-section (1) of section 3 of the Act, directed detention of the petitioner with a view to preventing him from smuggling goods, abetting the smuggling of goods and engaging in keeping smuggled goods. On October 6, 1978, the petitioner was arrested pursuant to this order of detention. The grounds of the detention were communicated to the petitioner of October 9, 1978, as required by the provisions of sub-section (3) of section 3 of the Act read with sub-clause (5) of Article 22 of the Constitution. The grounds Communicated to the petitioner were :---

'1. In connection with the inquiry relating to the seizure of U.S, 45, 453 Dollars from the suit-cases belonging to one Mrs. Kandubuhi Charlotte, Swiss National, at the Santacruz Airport on the 2nd/3rd September, 1978, your residential place as stated above was searched by the Customs Party along with the Officers of the Enforcement Directorate on the 3rd September, 1978. At the beginning of the search, you were not available. However, you arrived when the search was on. In the Search of your house, one brown colour suit-case was found. Though the suit case was empty it was found rather heavy inside. On its thorough examination, 44 gold bars of biscuits shape of foreign making each bar weighing 100 grams were found concealed ingeniously in the sides of the suit case. The gold bars bore Sr. Nos. 386051 to 386094. The total value of the gold is Rs. 3,08,000/- as prevailing market rate. The gold in question has been seized under the Customs Act.

2. Besides gold, following articles and documents were also found in your residence and they have been seized under the Customs Act :

(1) Similar type of suit case, empty and grey in colour.

(2) Two 50 dollars U.S. Currency notes.

(3) Loose screws and inside material of suit case.

(4) Some documents, including one English German Dictionary, one book titled 'English Fur De Reise', blank of Vehicles, Swiss Air Revalidation stickers, one coloured photograph of two persons, visiting cards, etc.

(5) Other Foreign articles valued at Rs. 8,100/-.

3. With reference to the seizure of U.S. 45,453, Mrs. Kadubuhi Charlotte in her statement recorded under section 108 of the Customs Act has inter alia stated that one Swiss National by name parolini of Zurchi has been conducting the operation of smuggling of gold in India. According to her, Mr. Parolini engages carriers to carry gold concealed in the suit case. The carrier is given Air ticket for journey to Bombay, is paid hotel expenses for stay in Bombay and paid Swiss Frank 1500 for doing the job. Mr. Parolini's instructions to the carriers were that they on arrival at Bombay, meet an Indian by name John at the Hanging Gardens, Bombay, and deliver the suit cases containing gold to him in their hotel rooms where the carriers will be staying. John would in return hand them back the suit cases containing U.S. dollars for being delivered to Paolini. On the return journey carriers are instructed to contact Parolini over telephone on reaching Milan about delivery of the suit cases brought from Bombay.

4 Mrs. Kadubuhi Charlotte admitted that she acted as a carrier of Parolini and made six seven trips to Bombay carrying gold. On her return trips she carried sale proceeds concealed in suit cases. She further stated that on 30th August, 1978 she arrived in Bombay with two suit cases one brown in colour and another black in colour. She stayed in 'Hotel Sea Side'. As per instructions, she went to the Hanging Gardens but John did not meet her. However, John contacted her on hotel telephone and met her in the after noon and collected suit cases from her.

Mrs. Charlotte further stated that on her earlier trip John had met her in the hotel where she had stayed and taken delivery of suit cases containing gold. John was in contact with her during her stay in Bombay.

5 Mrs. Charlotte further stated that in her first trip to India in September 1977, she was instructed to carry a paper bag of duty free shop of Zurchi Air Port marking and to wait in hotel 'Sherton Loby' wherein John would come with the identical paper bag in his hand. Accordingly, John came and met her and exchanged their identity in the above manner after which she handed over the suit cases to him. A paper bag of the above description was found in your residence. You have admitted that this paper bag was given to you by one of the carriers for exchange the identity.

6. The colour photograph of two persons which was found in your house was shown to Mrs. Charlotte. One of the person in the photo was wearing white shirt and pant. Mrs. Charlotte identified the persons in white pant as John who used to meet her and to whom she handed over the suit cases gold concealed therein. She has further that this photograph was taken by her in a hotel room Bombay on her Polaroid camera. The person identified by Mrs. Charlotte is yourself while the other person in the photo is your brother-in-law named Jumma Abdul Gani. Mrs. Charlotte also identified you as John from your photograph in your pass port No. J. 796061 issued in Bombay.

7. Mrs Charlotte further stated that the he had brought two gold chains with her to shape lockets in Zurich and gave them to you. A cash memo of a Zurich firm was seized from your residence and Mrs. Charlotte confirmed the same was in respect of the gold chain referred to by her. You have also admitted of having received two gold chains with a heart shape locket. One chain with the locket and one chain without the locket were produced by you before the Director of Revenue Intelligence.

8. Mrs. Charlotte stated that John used to were a gold chain with a pendant having letter 'M' inscribed in the centre you have admitted that you were wearing such chain and produced the same but without the pendant, which you stated, had been misplaced.

9. A visiting card was seized from your residence on which figure 056-265659 were written. Mrs. Charlotte had stated that this is a residence telephone of Mr. Parolini in Zurich.

10. The suit case which was found in your house was similar to those found with Mrs. Charlotte in which Us. dollars were found sealed at the Santacruz Airport. Mrs Charlotte had stated that the suit case which were found with her at the Air Port were given to her John namely by you in her hotel room on 2nd September, 1978.

11. In your statements recorded under section 108 of the Customs Act you have stated that Parolini was introduced to you by one Marwadi named Vimal in December 1977 and made a proposal to start gold smuggling. The operation of the smuggling was planned by Mr. Parolini. You have stated that the operation of smuggling of the gold was started from January 1978. You have admitted the mad us operandi of the smuggling of gold as stated by Mrs. Charlotte. You also admitted that you are known as John. You have also stated that you used to take delivery of the suit cases containing gold from the carriers of Parolini in the hotel rooms where they were lodged and then to carry these suit cases to your where you used to remove the gold from the suit cases. You have further stated that you used to hand over the gold to Vimal and collect money from him or the gold delivered. You have also stated that you used to collect Us. dollars from certain parties in Karwar street and to conceal the same in suit cases and hand them over to the carriers for being delivered to Mr. Parolini.

You have further stated that each carrier used to bring on an average 5 kgs of gold with him concealed in suit cases. You have stated that during the past eight months, 19 such carriers brought gold and delivered it to you. In all you have cleared 95 kgs. of gold worth Rs. 72 lakhs. You have also admitted the you had so far earned Rs. 95,000/- as commission for the smuggling operation.

12. You have further admitted that one Bruno Bylhalder and his wife Monica arrived in Bombay on the 26th/28th August, 1978. One of them carried suit cases containing 6 kgs of gold and foreign marking. They stayed in Hotel Inn. You have admitted that you took delivery of the gold from them and handed it over to Vimal on the 28th August, 1978. You have also stated that you have collected American Dollars from five dealers and concealed them in the brown case and handed it over to Mr. Bruno who left for Zurich by Air on the 28th August, 1978.

13. You have also admitted that you took delivery of two suit cases containing 6 kgs of gold from Mrs. Charlotte from her in Hotel Sea side on the 30th August, 1978. You collected the sale proceeds in U.S. dollars and handed over the suit case in which they were concealed to Monica who left for Zurchi on the 30th August, 1978.

14. On the 1st September, 1978, one Krattli arrived in Bombay and stayed in hotel 'Holiday INN'. You had asked your brother-in-law Jumma Abdul Gani to meet Mrs. Charlotte and Mr. Krattli at Hanging Garden. According to Mrs. Charlotte none met her at this place. Mr. Krattli is also sure whether your brother-in-law met him at the Hanging Garden when his photograph was foreign marked gold each weighing 100 grams concealed in black suit case from Mr. Krattli in his hotel room but you did not take the suit case along with you. However, you took along with you the brown suit case which was brought by Mr. Krattli and which contained 44 slabs of gold bars which were seized by the Directorate of Revenue Intelligence Officers from your on the 3rd September, 1978. 16 slabs of gold received from Mr. Krattli were delivered by you to shri Vimal on the 2nd September, 1978. Besides you also delivered to shri Vimal 6 kgs of gold brought by Mrs. Charlotte on the 1st September, 1978.

15. One Chit with some accounts written on it was found concealed along with U.S. Dollars in the suit case carried by Mrs Charlotte. You have admitted that you had written this accounts in respect of gold received by you and the amount paid by you to the carriers. You have stated that you paid 100 dollars to Mr. Krattli on the 3rd September, 1978 for doing the job, Mr. Krattli has accepted this in his statement recorded on 4th September, 1978 and it is also supported by money exchange voucher found and seized from Mr. Krattli. You have also stated that you tried to give 100 dollars to Mrs. Charlotte but she refused to accept. This has been corroborated by her in the statement. The fifty dollars notes were seized by the Directorate of Revenue Intelligence from your residence.

16. You have also admitted that when you went to see Mr. Krattli in his hotel on the 3rd September, 1978, as well as to Krattli Mr. Parolini told you that Mrs. Charlotte had not reached Zurich you, therefore, promised the enquire in the matter and went to the Air Port and obtained the information from some taxi-men that there was some trouble for some foreign passenger. You, therefore, suppressed that there was some trouble for Mrs. Charlotte. You came back to Mr. Krattli's hotel and advised him that he should not take black suit case in taxi and that you left this suit case in a taxi when you disengaged it near Amboli (Andheri). You have also admitted that immediately after this you contacted Jummn's residence where you came to know that his house as well as your house were raided by the Customs Department.

17. You have further stated that you went to Mr. Krattli's hotel on the 1st September, 1978 in a Fiat Car No. MRJ 4865 accompained by your brother-in-law Gani and brought brown colour suit case from him the said car. You have also admitted that you have used this car on previous three occasions for carrying gold brought by the carriers.

18. You have also stated that your brother-in-law Jumma Abdul Gani had helped you in delivering smuggled gold to Vimal, collecting money from him collecting U.S. dollars from various parties your instructions.

19. Shri Jumma Abdul Gani has admitted in his statement recorded on the 9th September, 1978 that he had delivered gold to Vimal and collected money from him on two occasions first in last week of July 1978/First week of August 1978 and then in August 1978.

20. As regards collecting U.S. dollars in the local market, you mentioned certain names of the firms from where you used to collect foreign exchange. However, the search of their places did not yield any tangible result.

21. You identified Mrs. Charlotte, Mr. Krattli, Shri Vimal Javantraj Jain and his brother Shri Bhavarlal. You have stated that you are known to Vimal and Bhavarlal as 'Raju'. You have stated that actually Vimal suggested to you that you should deal with him under that name. Vimal has denied any acquaintance with you while Bhavarlal said that he merely knew you. Vimal also denied any knowledge Parolini.

22. You have further stated that on the 2nd September, 1978, you received money from Vimal for the gold given to him in three instalments of Rs. 2 lakhs and Rs. 1 lakh and Rs. 1,20,000/- each. Both Vimal and Bhavarlal have denied of having given any money to you and denied any concern with the smuggling of gold.

23. On visiting card having some figures written on it was seized from your house. You have stated it relates to the account of money due from Vimal in connection with gold transaction. You have also stated that the amount already received from Vimal by you and the amount of Rs. 11,000/- received by Jumma were written on this card.

24. On a card of certain Advocate, the name of Parloni was written by you in Gujarathi. The residence telephone No. of Parloni was also written on the documents seized from your house.

25. Investigations revealed that Mr. Parloni visited Bombay on several occasions from 19th April, 1978 to 15th August, 1978 and he stayed in the hotel 'Holiday Inn' Enquired also revealed that Mr. Parloni contacted telephone No. 320183 which is installed in your name in room No. 28-B which is next to your brother-in law Jumma's room. It is also revealed that calls were received on this telephone from Switzerland and most of them were meant for you under the name 'John'. In your statement you have admitted that you had talked to Mr. Parloni on phone from Mr. Krattli's room in the hotel as stated in paragraph 16 above.

26. From the records of the Enforcement Directorate, Bombay, it is revealed that you were dealing in illegal transaction in Foreign Exchange and on two occasions i.e. on October 1967 and December 1967, you were involved in the cases registered with the Directorate.

27. With this background and in view of the facts in details above it is, clear that you were involved in a big racket of smuggling gold into India. You have admitted that you were knowing and habitually engaged yourself in smuggling of gold which is an offence under the law.'

3. On October 10, 1978, the Government of Maharashtra forwarded to the Central Government a report under sub-section (2) of section 3 of the Act, in respect of the petitioner's detention, and thereafter on October 24, 1978 the Government of Maharashtra made a reference in respect of the detention of the petitioner to the Advisory Board, as prescribed by the provision of section 8(b) of the Act. The Advisory Board heard the detenu on December 20, 1978. At that time the petitioner produced a copy of his representation dated November 22, 1978, made to the Government of Maharashtra, before the Advisory Board. The Advisory board opined that there was sufficient cause for the detention. This report was considered by the Government of Maharashtra as in accordance with the provisions of sub-clause (f) of section 8 of the Act and accepting the report, the Government confirmed the detention order issued against the detenue by the order dated 22 December, 1978, which was served on the petitioners on December 23, 1978.

4. Now it is necessary to mention a few more facts in connection with the representation of the petitioner as the same are relevant for the purposes to decide the controversy. After the grounds of the detention were communicated to the petitioner, he wrote a letter dated 20th October, 1978, to the Detaining Authority asking for copies of the statements of the petitioner and other persons referred to and relied upon, in the grounds of the detention, to enable him to make representation against his detention. He also stated in this letter that the statements were not made voluntarily, nor were they read over and explained to him and that they were extorted by improper and dubious methods. By a letter dated November 4, 1978, Section Officer, Government of Maharashtra, Home Department, informed the petitioner that he may approach the Collector of Customs (Preventive), Bombay, for copies of statements required by him. Then the petitioner wrote a letter dated November 15, 1978, to the Collector of Customs (Preventive), requesting him to supply copies of the statements of the witnesses and others, which have been referred to and relied upon in the grounds of detention to enable him to make a representation to the Advisory Board, within the prescribed time. The Collector of Customs (Preventive), however informed the petitioner by his letter dated November 17, 1978, that the copies of the statements will be supplied to him at the stage when a show cause notice will be issued to him, under the provisions of the Customs Act, 1962, and that they could not be supplied to him at that stage. Thereafter, the petitioner made his representation dated December 22, 1978, to the Government of Maharashtra for its consideration and also requested that the same may be forwarded to the Advisory Board. In this representation, the petitioner principally made a grievance against non-supply of the copies of the statements which violated his fundamental right to make an effective representation against the order of detention. He contended that the order of detention was vitiated by non-disclosure of relevant details and refusal to furnish copies of the statements. He further prayed that the order of detention requires to be set aside. It was submitted by the petitioner in his representation that he was disabled and incapacitate from making a detailed and effective representation under Article 22(5) of the Constitution by reason of the failure of the Government to supply copies of the statements, while making this grievance, however, the petitioner also reiterated his contention that the grounds of detention were false and concocted and his statements were extorted by the officers by threats, promises and inducement and were not voluntary. This representation dated 6th December, 1978, was received in the Home Department of the Government of Maharashtra on December 12, 1978. By a letter dated December 22, 1978, which incidently is the date the Government accepted the report of the Advisory Board, the petitioner was informed by the Government that the issue regarding the supply of copies of relevant documents was under consideration of the Government.

5. As stated above, the petitioner's case was considered by the Advisory Board on December 20, 1978, and on the previous day i.e. on December 19, 1978, the present petition was filed in this Court. The detention has been challenged in the petition on two grounds, firstly, that the refusal to furnish copies of the statements nullified his rights to make an effective representation and has violated the fundamental right guaranteed to him under Article 22(5) of the Constitution and were also in contravention of the mandatory provisions of section 8(b) of the Act. According to the petitioner, therefore, the order of detention will vitiated because of the non-disclose and refusal to supply the copies of statements of witness and other persons referred to and relied upon in the grounds of detention and the continuance of the detention was illegal.

6. Secondly, it was contended in the petition that although he was detained on October 6, 1978, the Government failed to make a report to the Advisory Board, as required by the provisions of section 8(b) of the Act, and on that ground also his detention is vitiated. On these two grounds the petitioner prayed for quashing and setting aside evidence discloses that in fact Government had made the reference to the Advisory Board within the prescribed time on October 24, 1978.

7. The Detaining Authority Mr. R.D. Pradhan in his affidavit, apart from contending that the order of detention passed by him was legal and based on material which led to his satisfaction about the necessity of petitioner's detention to prevent him from carrying on the prejudicial activity stated that the material disclosed in the grounds of detention served on the petitioner did not suffer from the vice of vagueness and was sufficient that refusal for the petitioner to make an effective representation. He denied that refusal to furnish copies of statements vitiated the order of detention or the continuance thereof. He denied the petitioner's case that there was violation of the Constitutional guarantee under Article 22(5) or that there was any breach of the provisions of section 8 of the Act.

8. The affidavit of Mr. R.S. Dikshit, Assistance Secretary, Home Department (special), dated January 25, 1979, furnished details about the manner in which the reference was made to the Advisory Board and the Government ultimately confirmed the order of detention on receipt of the report of the Advisory Board.

9. The petitioner them filed his rejoined dated 30th January, 1979, reiterating his case that the refusal on the part of the authorities to furnish the copies of the statements disabled him from making any effective representation to the Advisory Board as well as the Government. It was for the first time, in this rejoinder a contention was raised that the Government as well as Advisory Board were under an obligation to consider the representation separately and independently from each other and a grievance was made that although the Government received his representation on December 12, 1978, it has not been considered by the Government so far. The delay in considering the petitioner's representation was unjustified and therefore vitiated the continued detention. Further affidavit of Mr. Dixit, dated February 12, 1979, was then filed explaining the circumstance under which no action was taken on the representation of the petitioner, dated November 22, 1978. It has been pointed out in this affidavit that this representation which was signed by the petitioner on December 6, 1978, was received by the Home Department on December 12, 1978, and in this representation the petitioner had mainly asked for copies of the statements. However, within a few days thereafter, on December 19, 1978, the petitioner filed the present petition in this Court challenging his detention on the ground that as the copies of the statements were not supplied to him, he was incapacitate from making an effective representation and rendered the detention illegal. By his letter dated December 22, 1978, the detenu was informed that the issue regarding supply of copies was under consideration of the Government. However, in the meantime the detenu filed the present petition on December 19, 1978, and rule was issued on December 21, 1978. As the same contentions were raised in this petition, the matter being sub-judice no further action was taken by the Government on the representation. His affidavit, further disclosed that when the petitioner was produced before the Advisory Board on December 20, 1978, he submitted a copy of his representation referred to above and was considered by it before submitting the report on December 21, 1978.

10. Mr. Merchant advanced two-fold contention. His first submission was that the refusal or failure to supply copies of statements referred to and relied on by the authority in the grounds, despite a specific demand made by the petitioner in that behalf was a flagrant violation of the detenu's right to make on effective representation. He submitted that the provision of Article 22(5) of the Constitution enjoined the Detaining Authority not only to communicate to the person detained the grounds on which the order was made but was also bound to supply full copies of statements and documents relied on by the authority to afford him the earliest opportunity of making a representation against the order. In this case, however, the copies of the statements although for asked by the petitioner, were never supplied to him and therefore, there was a clear breach of the constitutional guarantee. It was submitted by him that the mere absence of vagueness in the grounds supplied to the petitioner cannot obviate the necessity of furnishing full copies of statements of witnesses and documents relied on to the detenue, because that would strike at the very purpose of Article 22(5). The second contention urged by the counsel was that although the petitioner's representation had reached the Government on December 12, 1978, there was no consideration thereof by the Government. He submitted that the failure of the Government to consider the representation promptly and without delay had rendered the detention illegal and invalid.

11. The first question for consideration is whether the petitioner was entitled to claim as of right copies of the statements relied on or referred to in the grounds communicated to him. It was submitted that it would be no compliance of the constitutional guarantee of affording the opportunity to the detenue to make a representation against his detention, if the copies of the statements and documents on which the grounds are based, are not furnished. The mere communication of basic facts and material on which the detention order is based is no substitute for the full copies of statements and documents which really furnish the basis of the satisfaction reached by the Detaining Authority. It is contended that the valuable right guaranteed to the detenue of making a representation will be illusory if the complete copies and not merely the gist of the documents which is said to constitute the basic facts and materials on which the order is based is furnished to the detenue. In support of his contention, the counsel relied on the decision of the Supreme Court in Khudram Das v. The State of West Bengal and Ors. : [1975]2SCR832

12. Provisions regarding arrest and detention are incorporated in part III of the Constitution, which guarantees certain fundamental rights to the citizens and the relevant provisions are contained in Article 22. The provisions incorporated in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947, have to be appreciated in the background of the provisions of Article 22 of the Constitution, Under Article 22 it is provided that 'No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice. Article 22(4) inter alia provides that; 'No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board has reported before the expiration of the said period, that there is in its opinion sufficient case for such detention.' Then Articles 22(5) provides that: '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'. Sub-art. (6) which is in the nature of an exception to sub-art. (5) and lays down that: 'Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.' The Act of 1974 with which are concerned, makes provisions for preventive detention, the object being the conservation and augmentation of Foreign Exchange and prevention of smuggling activities for matters connected therewith.

13. It is not disputed before us that Mr. R.D. Pradhan, the Secretary to the Government of Maharashtra, Home Department, did possess the requisite authority to pass the order under sub-section (1) of section 3 of the Act and was specially empowered in that behalf by the Government. It is also not in dispute that the report regarding the order of detention was duly forwarded to the Central Government, within the prescribed time as laid down in sub-section (2) of section 3. We are concerned with sub-section (3) of section 3 and the provision incorporated to comply with, in compliance with the directions contained in Article 22(5), it is that : '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. Thus Article 22(5) contemplates communication of grounds to the detenu. What is true meaning of the word 'ground' as envisaged by the provision? It has been judicially interpreted by courts to mean 'the basic facts and materials' which would enable the detenu to make a representation against the detention.

14. Prima facie, neither the wording of Article 22(5) nor that of section 8(3) of the Act, indicates that a detenu has a right to get copies of the investigation papers, such as the statements or documents on which the order is based. We do not find anything in these provisions to justify an inference that the detenu must be supplied with copies of statements and documents, as in a criminal trial under the Code of Criminal Procedure. The object of communicating the grounds to the detenu is to enable him to make a representation and, therefore, the grounds must not be vague. If it lacks in sufficient particulars, the detenu would have a right to call for better particulars. It is necessary to indicate in the grounds with fair precision and certainty the basic facts and materials on which the subjective satisfaction of the Detaining Authority regarding the future behaviour of the detenu is founded.

15. The Supreme Court had occassion to consider the true meaning of the word grounds. In Vakil Singh v. State of Jammu and Kashmir and Ors., A.I.R. 1947 S.C. 2337. Rejecting the contention that the grounds communicated to the detenu were vague and, therefore, the order of detention was illegal, the Court observed :

'Grounds within the contemplated of section 8(1) of the Act means 'material on which the order of detention is primarily based. Apart from conclusions of facts 'grounds' have a factual constituent, also. They must contain the pith and substance of primary facts but not subsidiary facts evidential details.'

16. In Khudiram Das's case, : [1975]2SCR832 the scope of the Article 22(5) was considered by the Supreme Court. It was pointed out that the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power, because the Detaining Authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that not only the detenu may know what are the facts and materials before the Detaining Authority on the basis of which he is being deprived of his personal liberty, but he also invoke the power of judicial review, however limited and peripheral it may be. The other aspect is that the detenu has to be afforded an opportunity of making a representation against the order of detention but if the grounds are not communicated then this right making representation would be rendered illusory. Bearing in mind these aspects, the Court observed :---

'If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that the 'grounds' means all the basic facts which have been take into account by the Detaining Authority in making the order of detention and on which therefore, the order of detention is based'.

17. In that case a reference was also made to the observation of the Supreme Court in Golam Alias Golam Mallick v. The State of West Bengal, W.P. No. 270 of 1974, Dated 12-9-1974 (S.C.) where the word 'grounds' was constructed in the following words :---

'....... in the context, 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. The basic facts and materials particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds' within the contemplation of Article 22(5) and section 8 and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest.'

18. The Court also referred to another decision in Shamrao Vishnu Parulekar v. The District Magistrate, Thana, : 1957CriLJ5 where it was held that the expression 'grounds on which the order has been made' in their natural and ordinary sense would include any information or material on which the order was based.

19. The Oxford Dictionary, Vol. IV page 450 gives the meaning of the word 'ground' as 'circumstances on which an opinion, inference, argument, statement or claim is founded, or which has given rise to an action, procedure, or mental feeling, a reason, motive.'

20. It was then further observed in Khudiram Das's case that :

'It is, therefore, clear that nothing less than all the basic facts and materials which influenced the Detaining Authority in making the order of detention must be communicated to the detenu. That is the pain requirement of the first safeguard in Article 22(5). The second safeguard in Article 22(5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no short fall in the materials communicated shall stand in the was of the detenu in making an early yet comprehensive and effective representation in regarded to all basic facts and materials which may have influenced the Detaining Authority in making the order of detention depriving him of his freedom.'

21. Having regard to the above discussion, the following well-established principles emerge. A detenu is entitled to be furnished with the grounds of detention to enable him to make a representation. This is a constitutional requirement of Article 22(5) as well as the statutory requirement of section 3(3) of the Act. But such grounds furnished to the detenu must not be vague. If they are vague, there is no question of his making representation. The fact that the order of detention suffers from the vice of vagueness by itself, may render it bad and illegal. Vague-grounds, however, must be distinguished from the grounds being insufficient in particulars. In such a case, the detenu wound be entitled to claim further better particulars. It is also clear that grounds should specify not merely the bare conclusions of facts but must contain the basic facts and materials on which such conclusion are based. It is difficult to accept the contention that the grounds to be communicated to the detenu as required by the provision of Articles 22(2) envisage the furnishing of copies to the detenu. The intention in making the provisions is to afford the detenu an opportunity to make a representation and the requirement is fulfilled by disclosing the basic facts and materials on which the satisfaction of the authority about the necessity of detaining the persons is based.

22. It was tried to be contended on behalf of the detenu that it would be impossible for the detenu to make an effective representation and his right would be rendered illusory unless he is supplied with full copies of statements and documents and not merely the materials on which the order is based. This argument has been advanced by reference to the provisions of the Code of a Criminal Procedure, relating to criminal trials, because in the case of a criminal trial, the accused is entitled to be supplied with copies of statements and documents to defend himself. It must be noticed that preventive detention and criminal trial operate entirely in different fields. The object of detention is to prevent the Commission of illegal activities. The order of the detention flows from the satisfaction of the competent authority about the likely future behaviour of the detenu although such satisfaction must necessarily be arrived at on the basis of the past conduct of the detenu. It would not be proper to equate the rights of a detenu with the rights of an accused person and it is not permissible to invoke the principles governing criminal trials based on the specific provisions of the Code of Criminal Procedure for the purposes of interpretation of the requirements of Article 22(2) or the corresponding section in the Act. The mere fact, therefore, that the accused is entitled to defend himself by getting copies of the statements and documents relied on by the prosecution in a criminal trial does not necessarily show that a detenu would not be able to make an effective representation without getting such copies as mentioned above. Communication of grounds or, in other words, the basic facts and materials which obviously must include full particular would, in our view, satisfy the constitutional requirement. In our view, neither the Article 22(5) nor any other provisions of law contemplates furnishing of copies of statements to the detenu as of right.

23. It would, therefore, be clear that what is contemplated by the word 'grounds' is not only the conclusion but the basic facts and materials on which such conclusion of facts is based. Once this requirement is complied with, there would be no further obligation on the Detaining Authority to further copies of the statements and documents on the basis of which the grounds are framed. As pointed out above, it is possible that the grounds communicated to the detenu might be vague or short of particulars that the case the detenu would have a right to make a grievance and ask for further particulars. But such a right is distinct from the right which the petitioner now claims by asking for supply of full copies of the statements and documents. In the present case, it is not the contention of the petitioner that the grounds are vague and lacking in particulars, nor has such a contention been advanced before us by the learned Counsel. Even otherwise, on a perusal of the grounds communicated to the present petitioner in this case, we find that they all contain basic facts and materials and there is no scope for raising a contention that they are vague or lacking in particulars. In the absence of any provision which confers a right on the detenu to be furnished with full copies of statements and document, it is not possible to accept the contention of the learned Counsel that there is any violation of the fundamental right under Article 22(2) of the Constitution or the statutory right under section 3(3) of the Act. A similar view has been expressed by a Division Bench of the Delhi High Court in Surendra Jivanbhai v. B.B. Gural, in Criminal Writs Nos. 19 and 20 of 1979, decided on July 11, 1978, with which we respectfully agree.

24. Coming to the second contention, it is to be noticed that the grounds were communicated to the petitioner on October 9, 1978. After some correspondence about petitioner's demand for copies his representation dated November 22, 1978, which was submitted by him on December 6, 1978, reached the Government, Home Department on December 12, 1978. On a perusal of the representation, it is clear that the main grievance of the petitioner was that his right to make an effective representation as envisaged by Article 22(5) of the Constitution has been denied by with holding copies of statements on which the grounds of detention served on him were founded. It is no doubt true that at the same time he contended that the grounds of detention were false and concocted and that the statements were extorted by threats, promises and inducements. Thus apart from a general allegation that the statements were not voluntarily made by him and the witnesses, no specific defence was made out. If we were to uphold the petitioner's contention about the detention. But in this case, the petitioner approached the Court within a few days after the receipt of representation ventilating his grievance about alleged violation of his right to be furnished with copies of statements by filling a writ petition. On this petition, ruled nisi was issued on December 21, 1978. The principal grievance made in petition is about the failure to supply of copies of statements which according to the petitioner violated his fundamental right under Article 22(5). It appears that a reply was sent by the Government to the representation which contained the petitioner's main grievance regarding his right to get copies, on December 22, 1978, informing him that the issue regarding the supply of copies of relevant documents was under consideration of the Government. Having regard to the sequences of events narrated above and the pendency of this petition and the nature of the representation made by the petitioner to the Government, we do not see any reason to reject the explanation in the affidavit of Shri R.S. Dixit for not independently considering the petitioner's representation. He has explained as same contentions were raised by the petitioner in this petition and the matter was subjudice, no further action was taken on his representation. Having regard to the facts and circumstances of the case, the explanation seems to be just and reasonable. It is further to be noticed that the representation was considered by the Advisory Board after hearing. The petitioner on Dec. 19, 1978 and its report dated Dec. 21, 1978, was received by the Government on 22, 1978. On that very day, the Government confirmed the order of detention as contemplated by section 8(f) of the Act.

25. We must mention that in the main petition there is no averment regarding any consideration of the representation made by the petitioner, nor is there any avernment that delay in considering the same. It is only in the rejoinder that such a grievance has been made by the petitioner for the first time. There is yet another aspect of the matter which needs to be mentioned. The representation made by the petitioner is a composite one, viz., his allegations that the grounds are false and concocted and secondly, he could not make any effective representation in the absence of copies of the statements and documents. It is not possible to segregate the two parts of the representation and decide only the first part as contended by Mr. Merchant. The question of supply of copies had to be considered and in view of the fact that the petition had been filed in this Court, the Government was justified in not deciding the question and awaiting the decisions of the Court. As held by us above, the petitioner was not entitled to claim copies of the statements and documents as of right as undisputedly the grounds conveyed to him were not vague and contained the basic facts and materials on which the order of detention was based. In view of the peculiar facts of this case and the pendency of this petition in which he raised the same question of his right to get copies to enable him to make the representation, it cannot be said that the Government has delivered with held the consideration of the representation. As the consideration of the representation by the Government necessarily involved determination of the right of the petitioner to get copies of statements, we do not think that the delay is reasonable or unexplained.

26. Mr. Merchant drew our attention to the decision of the Supreme Court in Prof. Khaidem Ibocha Singh etc. v. The State of Manipur : [1972]1SCR1022 in support of his contention that the unexplained delay in passing an order on the representation is by itself sufficient to shoe that the detention is illegal. In that case an unexplained delay of 17 days in passing orders on representations was held to be fatal and vitiated the detention. After considering some earlier decisions of the Supreme Court, it was observed that case that :---

'No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have representation consideration as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate as Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat. J., who spoke for this Court in the case of Khiarul Haque, (1969) Writ Petition No. 246 of 1969, D/10-9-1969(SC), 'it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.

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 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 the measure of the 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 duty 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 not release the detenu 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 will release the detenu. If the Advisory Board will express any opinion against release of the detenu the Government may still exercise the owner to release the detenu.'

27. Having regard to the facts of the present case, who do not think that the decision can assist the petitioner.

28. Mr. Kotwal, the learned Public Prosecutor, has drawn our attention to a later decision of the Supreme Court in Arun Kumar Roy v. The State of West Bengal, A.I.R. 1972 S.C. 1978, and argued that the communication of the petitioner dated November 22, 1978 is no representation at all and if the Government does not give consideration to such so-called representation but confirms the detention under section 8(f) on the receipt of the report of the Advisory Board, the detention could not be challenged. The following observation of the Supreme Court in Arun Kumar Roy's case would be relevant for our case :---

' In this case as already noted, the Government had approved of the order of detention as early as September 4, 1974, and submitted its report to the Central Government. There was nothing in the representation of the petitioner, apart from a bare denial of his commission of any offence which necessitated the immediate consideration of the representation. As the Act did not empower the Government to release the detenu on the strength of the representation without sending the matter to the Advisory Board, it appears to us that Government consideration of the representation, after its prior approval of the detention order would have little significance or import.'

29. In our case also, leaving aside the petitioner's contention about his right to get copies which was the subject matter of this petition, there was only a bald assertion of the grounds being false and statements being involuntary. There was, therefore, nothing in the representation which necessitated immediate consideration of the representation. Further, the Advisory Board had after hearing the petitioner and considering the representation approved the detention by its report which was ultimately accepted by the Government. Under the circumstances, the contention about the delay in consideration of the representation by the Government cannot be accepted.

30. In the result, the petition must fail and the rule is discharged. Mr. Kotwal, however, states that in case the petitioner makes a fresh representation, the Government will promptly consider the same.


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