9911796707
TMI Blog1980 (8) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... e very elaborate and detailed. They also contain the introductory background including the history of the detenu. It is stated herein that the detenu was previously detained by an order, dated September 1974 of the Government of India, under Section 3 of the Maintenance of Internal Security Act (MISA). On the repeal of MISA and the commencement of COFEPOSA, a fresh order, dated December 19, 1974, under the COFEPOSA, was served on the detenu. The detenu's writ petition for a writ of habeas corpus was dismissed by the High Court of Gujarat on May 6, 1976 in view of the Presidential Order, dated June 27, 1975, made under Article 359(1) of the Constitution which had suspended the rights under Articles 14, 21 and 22 of the Constitution. The detenu was, however, released on March 21, 1977. As stated in the 'grounds', his activities were kept under surveillance by the Customs Department. In or about July 1979, the detenu attempted to smuggle gold, but he was not successful. Calls booked by the detenu to various telephone numbers of other suspected smugglers were, however, detected. On November 21, 1979, the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist-wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 29, 1980. On March 4, 1980, the second respondent (Deputy Secretary, Home Department) arranged personal discussion with the Collector to solicit his considered view. As a result, on March 5, 1980, the Collector sent a letter to the State Government, stating that he had no objection to furnish the detenu with relevant documents. As per letter, dated March 7, 1980, the Section Officer of the Home Department sent the relevant documents running into 461 pages, to the detenu through the Superintendent, District Prison, Rajkot, by registered acknowledgement due. The said documents were received by the detenu on March 11, 1980 at Rajkot. Thus, after excluding the time taken in transit, there was a delay of 17 days in furnishing copies to the detenu. Earlier, on February 1, 1980, Shri P.K. Nair, Advocate had addressed a letter to the Chief Minister of Gujarat asking for permission for an interview with the detenu to seek instructions from him for drafting his representation. On February 12, 1980, the Secretary to Chief Minister wrote in reply to the Advocate, that his request for having an interview with the detenu was being looked into by Government with the Home Department. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional obligation was fully discharged when the elaborate grounds of detention containing the substance of all the material facts, were served on the detenu. (ii) In these circumstances, the detenu had no further constitutional right to be supplied with the details and sources of the information on which the order of detention was passed. Reference has also been made to Vakil Singh v. State of Jammu & Kashmir. (b) The detenu as is apparent from the grounds of detention is engaged in smuggling activity in a big way, having international ramifications. Investigations were going on to unravel the entire gang of international smugglers in league with the detenu. The detaining authority had, therefore, to consider as to whether the disclosure of this information asked for by the detenu, at that stage, would not be detrimental to public interest, and if so, whether it would be in the public interest to invoke Article 22 (6) of the Constitution to withhold the copies asked for by the detenu, for some time. For this important purpose consultation with the Collector who was supervising the investigations, was necessary. The documents of which the copies were asked for, also run into s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t;grounds" of detention can be communicated to the detenu, in exceptional cases within 15 days of the detention. If the "grounds" communicated within the prescribed period are elaborate then supply of further particular is only two days after the expiry of the fifteen days period prescribed for communicating the "grounds" in exceptional cases. cannot be said to be unreasonably belated. Contentions 3 and 4 canvassed by Shri Sorabji need not detain us. Shri Nain has produced for the perusal of the Court the original official record from which it is clear that the detention order was passed by the Home Minister. It was authenticated and issued under the Rules of Business by Shri P.M. Shah, Deputy Secretary. Home Department (Special) who has sworn the counter-affidavit in this case. No personal mala fides are alleged against the Minister. It was, therefore. not necessary for the Minister to file the counter himself. Contention 3 is, therefore, overruled. What the learned counsel characterises as "irrelevant" matter incorporated in the grounds of detention are really introductory facts or history of the case. We, therefore, negative contention 4, als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore an executive authority can preventively detain a person". It was explained that 'grounds' under Article 22 (S) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention, must be communicated to the detenu. It was further clarified that such "basic facts and materials" would be different from "other particulars" spoken of in sub-section (3) of Section 3 of M.I.S.A. Earlier, in Prabhu Dayal Deorah etc. v. District Magistrate, Kamrup & Ors., Mathew, J., speaking for the majority, elucidated the position, thus: "The detenu has a right under Article 22 (5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention. That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of detention order." From these decisions it is clear that while the expression "grounds" in Article 22 (IS), and for that matter, in Section 3 (3) of the COFEPOSA, includes not only conclusions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein. There was thus no breach of the first constitutional imperative embodied in Article 22 (5). The short question, therefore, for consideration is: Was the period of 17 days (exclusive of the time taken for communication in transit) for the supply of the further, particulars of the basic facts to the detenu "unreasonable" in the circumstances of the case ? In the instant case, several causes contributed to this "delay". Firstly, this is a case in which the detenu was, according to the allegations in the grounds of detention and the averments in the counter affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way. This silver which was the subject of this illegal activity, was of huge value. The smuggling activity attributed to the detenu had international ramifications. The Collector of Customs was supervising the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicated to the detenu were very elaborate and full is not altogether irrelevant. The copies were despatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot. The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980. The detenu was also allowed by an order, dated February 20, 1980, to be interviewed by his lawyer. Although the Government took more than two weeks to consider the lawyer's request to interview the detenu, the fact remains that this permission was granted only two days after the despatch of the detenu's application for obtaining copies of the additional documents or materials. In spite of the grant of the detenu's lawyer's request for interview with his client and the supply of the copies, the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board. This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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