1980 (12) TMI 182 - SC - FEMA

Whether detention of the detenu was illegal? Held that - The materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention. They were a part of the basic facts and materials, and therefore, should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu. The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. The whole purpose of communicating the ground to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed - The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal. Appeal allowed.

Issues Involved:
1. Constructive res judicata applicability to subsequent habeas corpus petitions.
2. Non-supply of documents relied upon by the detaining authority.
3. Delay in forwarding and disposing of the detenu's representation to the Central Government.
4. Grounds of detention not communicated in a language understood by the detenu.

Issue-wise Detailed Analysis:

1. Constructive Res Judicata Applicability to Subsequent Habeas Corpus Petitions:
A preliminary objection was raised by the respondent State that the subsequent petition is barred as constructive res judicata. The Court examined whether the doctrine of constructive res judicata applies to a subsequent petition for a writ of habeas corpus on grounds that could not have been taken in the earlier petition. The Court noted that the application of constructive res judicata is confined to civil actions and civil proceedings. It is inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus on fresh grounds not taken in the earlier petition. Therefore, the subsequent writ petition was not barred as res judicata, and the preliminary objection raised by the respondents was overruled.

2. Non-supply of Documents Relied Upon by the Detaining Authority:
The petitioner contended that the respondents failed to supply all the documents relied upon by the detaining authority while passing the order of detention. Specifically, 236 documents covering 236 pages were not supplied. The respondents admitted in their counter-affidavit that not all documents had been given to the detenu, stating that enough documents were supplied to enable an effective representation. The Court reiterated the constitutional imperative under Article 22(5) that all documents and materials relied upon by the detaining authority must be supplied to the detenu to enable him to make an effective representation. The failure to supply these documents rendered the continued detention illegal.

3. Delay in Forwarding and Disposing of the Detenu's Representation to the Central Government:
The petitioner argued that a representation made on July 17, 1980, was forwarded to the Central Government by the Jailor on July 18, 1980, but had not been disposed of. The respondents admitted this fact but did not provide evidence that the representation was considered and disposed of by the Central Government. The Court emphasized the constitutional imperative under Article 22(5) that any representation made by a detenu should be dealt with utmost expedition. The delay in disposing of the representation breached this constitutional mandate, further rendering the detention illegal.

4. Grounds of Detention Not Communicated in a Language Understood by the Detenu:
The grounds of detention were served in English, a language not understood by the detenu. Although the grounds were verbally explained in Gujarati, the Court held that this did not satisfy the requirement of Article 22(5) of the Constitution, which mandates that the grounds must be "communicated" to the detenu in a language he understands. The purpose of this requirement is to enable the detenu to make a purposeful and effective representation. The failure to provide a written translation in Gujarati constituted a breach of the constitutional mandate.

Conclusion:
The Court found all three contentions on merits to be sound. The non-supply of documents, delay in disposing of the representation, and failure to communicate the grounds of detention in a language understood by the detenu collectively rendered the continued detention illegal. Consequently, the writ petition was allowed, and the detenu was directed to be released.

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