1980 (10) TMI 199 - SC - FEMA

Release of the three detenus whose detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 challenged Held that - We have no doubt that the communication dated July 27, 1980 was a representation which was in law required to be considered by the detaining authority. Quite obviously, the obligation imposed on the detaining authority, by Art. 22(5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Art. 22(5) read with Art. 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu. The representation dated July 27, 1980 was admittedly not considered and on that ground alone, the detenu was entitled to be set at liberty.

Issues Involved:
1. Failure to consider the representation dated July 27, 1980.
2. Delay in furnishing copies of documents relied upon in the grounds of detention.
3. Interpretation of 'grounds' under Article 22(5) of the Constitution.

Issue-wise Detailed Analysis:

1. Failure to consider the representation dated July 27, 1980:
The detenu's advocate sent a communication on July 27, 1980, to the Administrator, alleging that the grounds for detention were vague and that the detenu had not been provided with the necessary documents to make a representation. The respondents argued that this communication was not a representation but merely a request for documents. The Court, however, held that the communication contained a demand for the release of the detenu and mentioned reasons for such demand, making it a valid representation under Article 22(5) of the Constitution. The Court emphasized that there is no prescribed form for a representation, and any communication demanding release and stating reasons must be considered as a representation. The failure to consider this representation violated the constitutional obligation to afford the detenu the earliest opportunity to make a representation, leading to the detenu's entitlement to be released.

2. Delay in furnishing copies of documents relied upon in the grounds of detention:
The detenu was furnished with copies of documents on August 6, 1980, more than a month after his detention. The respondents contended that there was no legal obligation to provide these documents. However, the Court referred to the judgment in Icchu Devi Choraria v. Union of India, which held that the grounds of detention must include all documents, statements, and materials relied upon, and these must be furnished to the detenu within the prescribed time. The Court reiterated that the grounds must be self-sufficient and self-explanatory, and the failure to provide these documents within the stipulated time rendered the continued detention illegal.

3. Interpretation of 'grounds' under Article 22(5) of the Constitution:
Article 22(5) mandates that the grounds of detention must be communicated to the detenu and that they must be given an opportunity to make a representation. The Court clarified that 'grounds' include both the factual material and the factual inferences that led to the detention. This interpretation ensures that the detenu is fully informed and can make an effective representation. The Court reaffirmed the view in Icchu Devi Choraria that the grounds of detention must include all documents and materials relied upon, and any failure to provide these within the prescribed time violates the constitutional safeguard.

Conclusion:
The Court allowed all three Writ Petitions, emphasizing that the representation dated July 27, 1980, was not considered, and there was an undue delay in furnishing the necessary documents. The Court upheld the interpretation that 'grounds' under Article 22(5) include all factual material and inferences, and any failure to comply with these requirements renders the detention illegal. The petitions were allowed, and the detenus were ordered to be released.

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