S.L. Talati, J.
1. Ibrahim Bachu Bafan and Mithu Bawa Padhiyar have Filed petitions challenging their detention and applied for issuance of a writ of Habeas corpus with a prayer that they may be set at liberty forthwith on the grounds stated in their respective petitions. The facts which led to the tiling of these two petitions may be stated as under:
Petitioner Mithu Bawa Padhiyar was ordered to be detained by an order dated 2-1-1984 and that order was served on him on 12-1-1984 while Ibrahim Bachu Bafan was ordered to be detained by an order dated 29-12-1983 and that order was served on him on 28-12-1983. Each one of them made representation to the authorities on 20-1-1984. Their cases were heard by the Advisory Board on 16-2-1984. The Advisory Board submitted its report on 27-2-1984. During this period on 22-1-1984 the petitioners filed two separate petitions praying for their release under Article 226 of the Constitution of India being Special Criminal Applications Nos. 29 of 1984 and 30 of 1984. The petitions were admitted on 25-1-1984 and the Rule was made returnable on 8-3-1984. The petitions came for hearing on Board on 19-3-1984 and they were heard on 23-3-1984, 28-3-1984 and 5-4-1984. Ultimately the Government meaning thereby the detaining authority decided to revoke the orders of detention and the orders of their detention were revoked. On that very day, another order was passed for detaining them on the same day. On the same day grounds for detention were supplied to them. The list of documents on which reliance was placed was also supplied to the petitioners. Thereafter the petitioners filed fresh petitions in this Court on 10-4-1984 and they are now being decided by this common judgment.
2. Here it is required to be stated that the Bhula Jusub Jat against whom similar allegations were made was ordered to be detained by order dated 2-1-1984 and he was also supplied the grounds of his detention which are produced at Annexure 'F' on page 28. The list of documents which were supplied to him is also produced at Annexure 'G' on page 38. Grounds and documents supplied to the petitioners were similar to those supplied to Bhula Jusab Jat. Bhula Jusab Jat made representation to the authorities on 20-1-1984 and the matter was placed before the Advisory Board on 16-2-1984 and the Advisory Board submitted its report on 27-2-1984 and as. a result of that report Bhula Jusab Jat came to be released on 27-2-1984.
3. Now the learned advocate Shri Ponda who appeared for the two petitioners submitted three grounds. The first ground was that there was total nonapplication of mind inasmuch as the detaining authority did not consider the report of the Advisory Board in regard to Bhula Jusab Jat. In the alternative it was submitted that if the detaining authority did consider the report of the Advisory Board on Bhula Jusab the part of mat report which was essential for the purpose of making effective representations so far as the petitioners are concerned was not supplied to them.
4. The second ground of attack was that the order was mala fide inasmuch as revocation was made on 5-4-1984 though the petitions came to be filed on 25-1-1984 and the Rule was made returnable on 8-3-1984 and the petitions were heard for three days i.e. 23-3-1984, 28-3-1984 and 15-4-1984. And, the third ground of challenge is that so far as the findings of the detaining authorities are concerned they are inconsistent.
5. We may say at the outset that it would not be necessary to go into the second and third grounds, the reason being that the learned Public Prosecutor who appeared on behalf of the detaining authority Shri J. U. Mehta submitted that the report of the Advisory Board for the purpose of releasing Bhula Jusab was duly considered by the detaining authority and it is an admitted position that that part of the report which was considered for the purpose of detaining these two detenus was not supplied to them and that vitiated the proceedings inasmuch as effective representation which is contemplated under Article 22(5) of the Constitution of India was not possible. Here it is required to be stated that in paragraph 25 of the affidavit-in-reply the detaining authority stated as under:
25. With reference to ground (xii) of the petition, I say and submit that the contentions raised by the petitioner in this ground are not tenable. I say and submit that the fact that the Advisory Board opined in respect of Shri Bhula Jusab Jat that there was no sufficient cause for his detention, was before the detaining authority while passing the impugned order of detention.
Now here the affidavit was vague inasmuch as it only stated that the report was before the detaining authority. We never knew as to for what purpose it was utilised. We were not sure whether it was utilised for the purpose of releasing Bhula Jusab Jat or it was also considered for the purpose of detaining these two detenus. We were also not sure as to whether that report was at all considered though it was before them. The learned Public Prosecutor Shri Mehta made the whole position clear and he stated that that report was duly considered. Now that, therefore, if that was considered and admittedly it was not supplied to the petitioners the only thing which we are left is to consider what would be its effect.
6. Before we consider the effect we might state here that the facts as they stand are of a very grave and serious nature. What was found was heroin worth Rs. 12 lacs from a field. What was further found was that there was a continuous activity of bringing in this country not only heroin but watches and fabrics. Thereafter silver was being smuggled out of this country and it appears that 4560 kilos of silver was to be smuggled out of this country because that might be equivalent to the value of heroin. For that purpose a person who is not before us in these petitions was staying with one of the petitioners when he used to visit this country. He was being supplied with a Jeep for his movements, he was being supplied with a truck, necessary labourers and ultimately with all help which would be necessary in order to take heroin to Bombay. The activity covered a long period. This was practically a continuous activity. The incidents alleged in the grounds were of April 1983, June 1983 and November 1983. The persons who indulge in such activities are the persons who are dangerous to the economy of this country. This evil is required to be stopped. For that purpose the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is passed considering the fact that the prosecution in itself may not be sufficient because it would take long lime to convict a person and during that period the activities might continue. Subjective satisfaction arrived at by the detaining authority cannot be looked into by the courts. Therefore, only procedural safeguards are provided for. Now those procedural safeguards are required to be strictly adhered to by the persons who are in charge of enforcing this Act. If they neglect this or due to inadvertence or incompetence or otherwise do not observe scrupulously those procedural safegards, the persons who are required to be detained cannot be detained and the sufferer would be the nation and the sufferings would be inflicted by the persons who through inadvertence, incompetence or otherwise do not observe the procedural safeguards which are required to be observed. The courts have a limited function to do, and if the procedural safeguards guaranteed by the Constitution of India and the laws of this country are not observed but observed in breach, the courts have no other alternative left but to release these persons.
7. We had our doubts in view of the vague statement in para 25 of the affidavit-in-reply as to whether in fact the report which was placed was considered or not though the learned Public Prosecutor categorically made a statement that it was considered. The learned Public Prosecutor was not willing to show the files to the learned advocate for the detenus on the ground that the files were secret thus making it impossible for the learned advocate 'for the detenus to argue on the facts Stated in the files. Therefore, the other side meaning thereby the learned advocate for the detenus had no opportunity to look into the files. We were then left with the affidavit paragraph 25 coupled with the statement of the learned Public Prosecutor which left no doubt in our mind that the report of the Advisory Board in regard to Bhula Jusab Jat was considered by the detaining authority and the copy of that report or the part of that report which was considered was not supplied to the petitioners who are detenu.
8. On the aforesaid facts it may be necessary to refer to only a few rulings and the first ruling which is required to be referred to is the case of Ramchandra A. Kamat v. Union of India and Ors. reported in : 2SCR1072 of that judgment the Supreme Court observed as under:
The right to make a representation is a fundamental right. The representation make an effective representation, the detenu is entitled to obtain information relating to the grounds of detention. When the grounds of detention are served on the detenu he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. When the detenu makes a request for such documents, they should be supplied to him expeditiously. What is reasonable expedition will depend on the facts of each case.
Here is not the case of delay in supplying the copies of the documents but here the relevant document is not supplied at all till this date.
9. The next case to which the reference is required to be made is the case of Yumnam Mangibabu Singh v. State of Manipur and Ors. reported in : 1983CriLJ445 . In paragraph 4 the Supreme Court observed as under:
In this behalf counsel for the appellant referred to two statements -(a) statement of the appellant himself recorded on 1-11-1981 containing his alleged admission of a donation of Rs. 1,000/- to P.L.A. and (b) statement of L. Iboyaima Singh, a partner of M/s. Win Supply Agency, copies whereof have admittedly not been supplied to him even up to this date. Ground l(a) above clearly refers to a course of conduct on the part of the appellant in the recent past suggesting rendering of financial help to P.L.A. by reciting that 'you have been extending financial help to the said organisation to enable it to carry on its illegal and violent activities'. But no particulars of any act or acts on the part of the appellant in that behalf have been given, though the detaining authority had before it the statement of the appellant recorded on 1-11-1981 containing the alleged admission on his part of having made donation of Rs. 1,000/- to the P.L.A. Obviously, the statement of the 'appellant 'dated 1-11-1981 was most material and relevant to the alleged activities of the type attributed to him in the said ground. Even so no copy of the statement was furnished to the appellant.
Supreme Court further observed as under:
In Khudiram's case : 2SCR832 this Court has taken the view that 'it is the right and duty of the Court to examine what are the basic facts and materials which are actually and in fact detaining authority that ,it has taken into account only certain basic facts and materials and though other basic facts and materials wweighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the ere before it, it has not allowed them to influence its satisfaction. It cannot be disputed that the statement of the appellant containing an alleged admission on his part of the type mentioned above would fall within the concept of basic facts and materials and since the statement was before the detaining authority it must have weighed with it in reaching the requisite satisfaction. The High Court has brushed aside the non-furnishing of a copy of this statement on the ground that after all it was an admission on the part of the appellant and as such no violation of Article 22(5) was involved. It is not possible to accept the view of the High Court for the simple reason that the appellant was entitled to put forth his case about it, which could include either a denial or an explanation of the alleged admission and he was deprived of an opportunity to do so.
Here it is also necessary to refer to a case of Smt. Ichhu Devi Choraria v. Union of India and Ors. reported in : 1SCR640 . The Supreme Court observed as under:
On a proper interpretation of Clause (5) of Article 22, the detaining authority is under a constitutional obligation to consider the representation of the detenu as early as possible, and if there is unreasonable delay in considering such representation, it would have the effect of invalidating the detention of the detenu. The representation of the detenu dated 9th June 1980 was received by the Deputy Secretary on 14th June 1980 while the representation dated 26th June, 1980 was received on 20th June, 1980 and yet no decision was taken on these representations of the detenu until 14th July 1980.
Held that the detaining authority was guilty of unreasonable delay in considering the two representations of the detenu. This was sufficient to invalidate the continued detention of the detenu.
In that judgment it was also held as under:
The detaining authority was bound to supply copies of the documents, statements and other materials relied upon in the grounds of detention to the detenu within five days from the date of detention that is on or before 9th June, 1980 and in any event, even if there were exceptional, circumstances and reason', for not supplying such copies within five days were recorded 'in writing, such copies should have been supplied to the detenu not later than fifteen days from the date of detention, that is on or before 19th June, 1980.
That was a case where there was unreasonable delay in supplying the copies. Here we are dealing with a case where copy of a relevant document is not at an supplied till this date.
10. The last case to which reference was made is the case of Thakor Mulchandani v. Assistant Secretary to the Govt. of Maharashtra and Ors. reported in : 1982CriLJ1730 . In that case the Supreme Court observed as under:
Where a list of smuggled goods is recovered from a detenu and is relied on in grounds of detention, it is a material document and non-supply of that document to the 'detenu would render the order of detention void. Until the list was supplied it was not possible for the detenu to make an effective representation against the order of detention to the detaining authority.
Article 22(5) of the Constitution of India provides as under:
22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
12. Now this constitutional mandate is required to be strictly adhered to. The learned Public Prosecutor made a faint attempt to show that the case may fall under Section 5A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. That section reads as under:
5A. Where a person has been detained in pursuance of an order of detention under Sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly:
(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of grounds is or are:
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever;
and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention.
(b) the Government or Officer making the order of detention shall be deemed to have made the order of detention under the said Sub-section (1) after being satisfied V as provided in that sub-section with reference to the remaining ground or grounds.
13. Now reliance could be placed only on Section 5A(a)(v) 'invalid for any other reason whatsoever'. On the basis of that it was being suggested that the detenu who was released was because of his activity or his active part in June, 1983 and these particular detenus could still be detained for their activities in April, 1983 and November, 1983. The question is whether the order passed in regard to Bhula Jusab Jat was invalid for any other reason whatsoever. Now that question could only be considered if the opinion of the Advisory Board is before the detaining authority and if as stated above in paragraph 25 of the affidavit-in-reply the opinion of the Advisory Board was before the detaining authority, the immediate question that would arise would be as to whether that opinion was merely lying on the table or was it considered If it was considered another question might arise as to for what purpose it was considered Here the admitted position as now stands is that that report of the Advisory Board was considered for the purpose, of all the three and in such a situation the copies thereof if not supplied to the detenus in question would be violative of Article 22(5) of the Constitution of India. Now one more thing which is required to be stated is that so far as Article 22(5) of the Constitution of India is concerned it speaks about an order of detention. The grounds may be one or many but the order is one and in order that such an order may be sustained the grounds are required to be stated. Now to state few grounds and not to state one ground for one detention would be misreading Article 22(5) of the Constitution of India. We are not dealing with more than one detention orders in each of the detenu's case. The order so far as each detenu is concerned is only one order. The ground may be one or many and, therefore, all grounds for that particular order are required to be stated and no provision of law could whittle down or narrow down or abridge the Constitution of India because it is the law which is the basic law and that is the law which guarantees the fundamental rights. That is the law from which all other laws have to flow. That is the law which will control all other laws and no law would be able to control the Constitution of India. If that position is properly understood the constitutional mandate cannot be taken away by the law, any circular, any directions or any method whatsoever unless the Constitution itself permits it. This position is made clear not once but many times and it is brought to the notice of the authorities in several matters which arise under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act that the procedural safeguards are required to be strictly adhered to because they are the only guarantees provided against the detention which is based on subjective satisfaction. It is a sorry state of affairs that the persons who are implementing this particular law either do not desire to read the various authorities which have decided this question or they want to go their own way inspite of the Constitution and inspite of the various authorities by which this law is interpreted. It is now high time that if they want to implement this particular Act for the good of this country they should try to be conversant with the rulings which are often cited and in which all the 'procedural safeguards are so clearly interpreted that it cannot be difficult for any person to follow them. If that is not possible it cannot be difficult for the detaining authority to take advice of their law officers. We are not sure as to whether the advice which is so often given by the Supreme Court, if not adhered to, the same would be adhered to by this judgment. But we only repeat the same for our satisfaction that atleast we again bring to their notice the realities in life. One has to go not by his desire, whims or anything also except by Constitution and law of the land. With these observations we allow these two petitions and quash and set aside the detention orders and direct the detaining authority to release these two detenus forthwith.
14. It is clearly to be understood that what is set aside are the detention orders and if the detenus are otherwise required to be kept in Jail under some other order we are not dealing with that aspect of the matter. Rules made absolute.