1980 (9) TMI 279 - SC - FEMA

whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention? Held that - The community has a vital interest in the proper enforcement of its laws, particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The Government must, therefore, ensure that the constitutional safeguards of Art. 22(5) read with sub-s. (3) of s. 3 of the Act are fully complied with Whether there was such unreasonable delay in disposal of the detenu s application for revocation made under sub-s. (1) of s. 11 of the Act as to render his continued detention invalid is, in any event, basically irrelevant. For these reasons, the order of detention passed by the State Government of Maharashtra dated February 12, 1980 detaining Bhalabhai Motiram Patel under sub-s. (1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is set aside. Appeal allowed.

Summary

Issues Involved:
1. Undue delay in furnishing documents, statements, and writings referred to and relied upon in the order of detention.
2. Failure by the Central Government to consider and deal with the application for revocation of the detention order within a reasonable time.

Detailed Analysis:

1. Undue Delay in Furnishing Documents:
The primary issue raised was the undue delay in providing the detenu with the necessary documents, statements, and writings referred to and relied upon in the order of detention. The detenu, through his solicitors, requested these documents on March 8, 1980, but they were not provided until April 1, 1980. This delay was deemed unreasonable and in violation of the detenu's right to make an effective representation against the detention.

The court emphasized that the right to make a representation is a fundamental right under Article 22(5) of the Constitution. This right includes the necessity for the detenu to be provided with all relevant documents to prepare an effective representation. The court cited several precedents, including *Ramchandra A. Kamat v. Union of India*, *Frances Coralie Mullin v. W. C. Khambra*, *Smt. Icchu Devi Choraria v. Union of India*, and *Pritam Nath Hoon v. Union of India*, to reinforce the principle that undue delay in furnishing such documents renders the detention illegal.

The court noted the procedural lapses and lack of urgency on the part of the authorities. The detaining authority, the Secretary to the Government of Maharashtra, Home Department (Transport), failed to act promptly and instead passed the responsibility to the Collector of Customs and the Directorate of Revenue Intelligence, leading to unnecessary delays. The court criticized the detaining authority's lack of awareness of its constitutional obligations and the cavalier fashion in which the detenu's application was handled.

2. Failure to Consider the Application for Revocation:
The second issue was the failure of the Central Government to consider and deal with the detenu's application for revocation of the detention order within a reasonable time. However, the court deemed this issue irrelevant in light of the first issue. The undue delay in furnishing the necessary documents was sufficient to render the continued detention invalid.

Conclusion:
The court concluded that the continued detention of the detenu was invalid due to the undue delay in providing the necessary documents, which violated the detenu's right to make an effective representation. Consequently, the order of detention dated February 12, 1980, was set aside, and the petition was allowed. The court emphasized the importance of adhering to constitutional safeguards and ensuring that the law is not used arbitrarily to deprive individuals of their liberty.