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TMI Blog1980 (10) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... red and on that ground alone, the detenu was entitled to be set at liberty. - 4344 OF 1980 - - - Dated:- 24-10-1980 - O Chinnappa Reddy AND RANJIT SINGH SARKARIA, JJ. For the Petitioner : A. K. Sen, Herjinder Singh and M. M. Lodha For the Respondents : M. M. Abdul Khader, T.V.S.N. Chari and Miss A. Subhashini JUDGMENT The Judgment of the Court was delivered by CHINNAPPA REDDY, J.-By our orders dated October 7, 1980, we directed the release of the three detenus whose detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was challenged in these three Writ Petitions. We now proceed to state our reasons. Rajesh Soni, the detenu in Criminal Writ Petition No. 4344 of 1980 was arrested on June 27, 1980. The order of detention as well as the grounds of detention were served on him on the same day. On July 27, 1980, his Advocate addressed a communication to the Administrator, Delhi Administration, Delhi, alleging that the grounds were vague, (irrelevant and non-existent, that his client was unable to make any representation as he had not been given copies of the statements, documents and materials relied upon by the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law was to communicate to the detenu all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction and that obligation had been discharged in the present case. The learned counsel urged that the view taken by Bhagwati and Venkataramaiah JJ in Icchu Devi Choraria v. Union of India Ors. (supra) was inconsistent with the view taken by this Court in a series of cases and that the judgment required reconsideration. The Writ Petition has to succeed on both the grounds. As we mentioned earlier the answer of the respondents in regard to the ground based on the failure of the detaining authority to consider the representation dated July 27, 1980 submitted by the detenu through his Advocate was not that the representation was ever considered but that it was not a representation at all. We are unable to agree with the submission made on behalf of the respondents. The representation has not to be made in any prescribed form. There is no formula nor any magical incantation like "open seasame" to be repeated or chanted in order to qualify a communication as a representation. So long as it contains a demand or a request for the releas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at liberty. In the view that we have taken on the question of the failure of the detaining authority to consider the representation of the detenu it is really unnecessary to consider the second question raised on behalf of detenu in Criminal Writ Petition No. 4344 of 1980. However, this question has been squarely and directly raised and, indeed, it was the only question raised in the other two Criminal Writ Petitions and we have, therefore, to deal with it. Art. 22(5) may be reproduced here for a better understanding of the rival submissions. It says: "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". The Article has two facets: (1) communication of the grounds on which the order of detention has been made; (2) opportunity of making a representation against the order of detention. Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual material which led to such factual inferences. The 'grounds' must be self-sufficient and self- explanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenu as part of the `grounds'. This was what was decided by Bhagwati and Venkataramiah JJ in Smt. Icchu Devi Choraria v. Union of India ors. (supra), it was observed by Bhagwati J., who spoke for the Court: "Now it is obvious that when clause (5) of Article 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the detenu, so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for the purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority". Earlier in Vakil Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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