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TMI Blog1980 (9) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... cts emerging from the grounds of detention are that the detenu was acting as a 'courier' between Messrs S.K. Malhotra Imports & Exports, Brussels having a widespread network abroad and Messrs Apex Distributors, Bombay who were engaged in a criminal conspiracy to smuggle contraband goods on a wide scale. It was conceded at the Bar that the grounds for detention set out the facts with sufficient degree of particularity and they did furnish sufficient nexus for forming subjective satisfaction of the detaining authority. The order of detention was, therefore, not challenged on the ground that the grounds furnished were not adequate or sufficient for the satisfaction of the detaining authority, or for making of an effective representation. In support of the petition, two points are raised challenging the validity of the 'continued detention' of the detenu both on procedural grounds, namely (1) there was undue delay in furnishing the documents, statements and writings referred to and relied upon in the order of detention to enable the detenu to prepare or cause to be prepared his representation against the said order of detention and (2) there was a failure on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red post and were received by them on April 1, 1980. But the detenu's solicitors in the meanwhile, had already submitted an incomplete representation against the order of detention on March 31, 1980. The Courts have always viewed with disfavour the detention without trial whatever be the nature of offence. The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government. This has always been the view consistently taken by this Court in a series of decisions. It is not necessary to burden this judgment with citations of these decisions. We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by law. This Court has forged certain procedural safeguards in the case of preventive detention of citizens. The constitutional imperatives indicated in Art. 22(5) are two- fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. When the detenu makes a request for such documents, they should be supplied to him expeditiously. The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him-when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. What is reasonable expedition will depend on the facts of each case. It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of these documents. If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the intention is clear that the statements and documents which are referred to in the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. * * * * * There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the detenu's letter dated March 8, 1980 making a request for being furnished with copies of 'all documents, statements and writings', upon which the detention order was based, was admittedly received in the Mantralaya on March 10, 1980 the Under-Secretary, Home Department instead of acting upon that request within a reasonable time, forwarded the application to the Collector of Customs (Preventive), Bombay 'for his comments' on March 13, 1980. On the basis of the request of the Home Department, the Assistant Collector of Customs addressed a letter to the Deputy Director of the Directorate of Revenue Intelligence, Bombay, on March 15, 1980 'for his comments'. It, therefore, appears that the Secretary to the Government of Maharashtra, Home Department (Transport), who was the detaining authority, failed to apply his mind and abdicated his functions of supplying the copies of documents on which the order of detention was based, to the Collector of Customs, who in his turn referred the matter to the Directorate of Revenue Intelligence. The decision of the Directorate of Revenue Intelligence to supply the copies was conveyed to the Home Department on Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e day i.e. 19th March, 1980 the Assistant Collector of Customs addressed a letter to the Joint Secretary, Home Department (Special), Mantralaya, Bombay to communicate the decision of the D.R.I. to supply copies and also forwarded a set of relevant documents for being supplied to M/s. Mahimtura and Company. I say that the Home Department received the said letter and the copies of the documents on 19th March 1980. On 21st March, 1980, after scrutiny the case was submitted to the Secretary, Home Department (Transport), Mantralaya, Bombay by the Assistant through concerned officers. I say that 22nd March, 1980 and 23rd March, 1980 were holidays in Maharashtra as 22nd March, 1980 was 4th Saturday and 23rd March was Sunday. 24th March, 1980 was an optional holiday on account of Chaitra Sud 15. The case was, therefore, put up to the Secretary on 25th March, 1980 by the Deputy Secretary. A formal decision to supply the copies was necessary and there fore the case was put up before the Secretary on 25th March, 1980. On 26th March, 1980 the Secretary, Home Department (Transport) accepted the request of the detenu's advocate for supply of copies." He goes on to explain that it is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law." 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. In the view we take of this case, the question 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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