1980 (9) TMI 270 - SC - FEMA

Whether there was any breach of the requirements of Article 22 clause (5) of the Constitution and Section 3, sub-section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the detenue? Held that - The time of 12 days taken up by the Assistant Collector of Customs was therefore unreasonably long for which no explanation at all was forthcoming from the detaining authority. We must in the circumstances hold that there was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements and other materials relied upon in the grounds of detention and the continued detention of the detenu was accordingly illegal and void and the detenu was entitled to be released forthwith from detention. It is also necessary to point out that there was unreasonable delay in considering the representations of the detenu dated 9th June 1980 and 26th June 1980. It was not necessary for the detaining authority to wait until after the copies of the tapes were supplied to the detenu, it is difficult to resist the conclusion that the detaining authority was guilty of unreasonable delay in considering the two representations of the detenu, and particularly the representation dated 9th June 1980. This ground is also in our opinion sufficient to invalidate the continued detention of the detenu. These were the reasons for which we allowed the writ petition and directed immediate release of the detenu from detention.

Issues Involved:
1. Legality of the continued detention under COFEPOSA Act.
2. Compliance with procedural safeguards under Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act.
3. Timely communication of grounds of detention and related documents.
4. Delay in considering the detenu's representations.

Detailed Analysis:

1. Legality of the Continued Detention under COFEPOSA Act
The petition for a writ of habeas corpus challenged the continued detention of the detenu under Section 3(1) of the COFEPOSA Act. The detenu was detained on 4th June 1980, based on an order dated 27th May 1980, issued by the Governor of Maharashtra, who was satisfied that the detenu was involved in smuggling activities. The detenu was served with the grounds of detention on the same day, which included references to several documents and tape-recorded conversations.

2. Compliance with Procedural Safeguards under Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act
The primary contention was that the detaining authority failed to serve the detenu with copies of the statements, documents, and tapes relied upon in the grounds of detention, thereby violating Section 3(3) of the COFEPOSA Act and Article 22(5) of the Constitution. The Court emphasized that these provisions require the detaining authority to communicate the grounds of detention, including all supporting documents, to the detenu "as soon as may be," but not later than five days, or in exceptional circumstances, fifteen days from the date of detention.

3. Timely Communication of Grounds of Detention and Related Documents
The detenu requested the Deputy Secretary for the documents on 6th June 1980 and repeated his request on 9th June 1980. However, the documents were only supplied on 11th July 1980, and the tapes on 20th July 1980. The Court held that the grounds of detention must include all supporting documents, and these must be communicated within the prescribed time limits. The delay in supplying these documents and tapes was deemed unjustified, rendering the continued detention illegal.

4. Delay in Considering the Detenu's Representations
The detenu submitted representations on 9th June 1980 and 26th June 1980, which were received by the Deputy Secretary on 14th June 1980 and 30th June 1980, respectively. The representations were only considered on 11th July 1980, and a decision was taken on 14th July 1980. The Court found this delay unreasonable and in violation of the constitutional obligation to consider the detenu's representation as early as possible. This delay further invalidated the continued detention.

Conclusion
The Court concluded that the detaining authority's failure to supply the documents and tapes within the prescribed time limits and the unreasonable delay in considering the detenu's representations violated the procedural safeguards under Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act. Consequently, the continued detention of the detenu was declared illegal, and the detenu was ordered to be released forthwith. The Court underscored the importance of upholding personal liberty and ensuring that preventive detention powers are exercised strictly in accordance with the law.

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