HASMUKH S-O BHAGWANJI M. PATEL v. THE STATE OF GUJARAT & ORS

Citation: [1981] 1 S.C.R. 353

Court: Supreme Court of India

Bench: R.S. SARKARIA, R.S. PATHAK

Case summary

Soli Sorabji, appea11ing for the petitio~er, challenges the validity of the detention on, ihese grounds: ll) There has been impermissible delay in furnishing copies of the documents and statemems relied upon in the grounds of detention....

Judgment text

f-·- A\ HASMUKH S/O BHAGWANJI M.. PATEL v. THE STATE OF GUJARAT & ORS. August . 4. 1980 [R. S. SARKARIA AND R. S. PATHAK, JJ. ] Writ of habeas corpus, issuance of-Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Section 3-Concept of . ~rounds of detention explained-Filing of counter-affidavit by an officer who authenticated the detention order passed by the Home Minister and issued the . same under the rules of business is perfectly valid-Introductory facts or history of the case in the grounds of detention cannot be co'nsidered as irrelevant--Delay of 17 days excluding the time taken for communication in transit in the overall facts of the case is not so unreasonable as to amount to an infraction of the constitzttiona/ imperatives in Article 22(5) of the Constitution. Lallu Jogi Patel was detained on January 31, 1980 by an order of detention dated January 30, 1980 passed by the Minister of Home Affairs, Gujarat St~.

te under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and issued by the second respondent a Deputy Secretary of Government of Gujarat, Home Department. The Order was expressed in the name of the Governor of Gujarat. On the same date, the grounds of detention were served on the detenu. The detenu prayed for copies of the statements and documents relied upon in the grounds of detention on 1 February )5, 1980. On February 1, 1980 the detenu's Advocate sought permission for an interview with the detenu to seek instructions from him for drafting his representation. On February 20, 1980 the· State Government in· formed the Advocate that his request for interview with the detenu had been granted.

After consulting the Collector of Customs, the Home Department also, 1npplied to the detenu the documents running into 461 pages on March 7, 1980 which were ·actually received by the detenu on March 11, 1980, that is after a delay of 17 days, excluding the time taken in transit etc. Dismissing the petition, the Court HELD : (1) In view of the fact that the original detention order was, in fact, passed by the Home Minister against whom no personal ma/a {ides are alleged and the said order was authenticated and issued under the Rules of ·Business by the Deputy Secretary, Home Department {Special}, the latter's swearing the counter-affidavit in the case is valid. (360 F-G] (2) The introductory facts or history of the case incorporated in the grounds of detention cannot be considered as irrelevant matters which went into the, . ,consideration of, the detention order. [360 G-H] (3) A democratic Constitution is not to be interpreied merely from a lexi· .

cographer's angle but with a realisation that it is an embodiment. of the living '. thoughts and aspirations of a: free· people. The concept of "grounds" used in the context of detention in Article 22(5) of the Constitution and in sub~. • . section (3) of Section 3 of COFEPOSA, therefore, has to receive an interpre· tation which will keep it meaningfully in tune with a con\emporary notions of liberty and fundamental freedoms guaranteed in Article 19(1), 21 and 22 of the Constitution. [361 A-CJ (4) In Khudiram Das v. West Bengal the Supreme Court held that the con• stitutional imperatives enacted in Article 22(5) are two-fold: (i) The detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made; (ii) the detaining authority must afford the detenu the earliest op· portunity of making a .

representation against the detention order and that these two are the barest minimum safeguards which must. be observed before anexecutive authority can preventively detaio. a person; the grounds under Article 22(5) 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 detenue. [361 D-G] (5) While the expression "grounds" in Article 22(5), and fer that matter, in ~ection 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the "basic facts" on which those conclusions are founded, they are different from subsidiary facts or further particulars or the basic facts. The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important.

While the "basic facts" being integral part of the "grounds" must, according to Section 3(3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for' reasons to be recorded in writing, not later than 15· days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22(5) in Klzudi Ram's, case, are required to be ~ommunicated to the detenu, as soon as may be practicable, with reasonable expedition. It follows, that if in a case the so-called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenuo within the period specified in Section 3(3), the omission wilL be fatal to tho validity of the detention.

Jf, however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars also, must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time. What is "reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars. is a question• of fact depending upon the facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the facts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Klzudi Ram's case.

[362 C-H, 363 A] In the· instant case there is no breach of the first constitutional imperativ" embodied in Article 22(5). The grounds supplied to the detenu were elaboratOand full and contained all the "basic facts" although they did not set out alt the details or particulars of those "basic facts" relied upon or referred to therein. [363 A-BJ HASMUKH v. GUJARAT (Sarkaria, /. ) 355 (6) In the totality of the circumstances of the present case, the period of 17 days taken in considering the supply of the copies was not an unreasonably long period which could amount to a denial of the detenu's right to make an effective representation and, therefore, . infraction of the constitutional imperatives in Article 22(5) of the Constitution.

Firstly, the detenu was indulging in smuggling out silver from India and exporting it to the Gulf countries in a big way and the smuggling activity attributed to the detenu had international ramifications resulting in consultation with several authorities supervising the Customs. The Government had to consult the Collector of Customs and even summon and discuss in a high level meeting before ordering the supply of the copies. Secondly, the documents and statements of which the copies were sought covered more than 461 pages. Preparation of such a bulky record could be time consuming if the aid of some appliance like the Zerox machine were not available to prepare the copies by mechanical process. Thirdly, in spite of the grant of the request of the detenu's lawyer to interview the former :.

c 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 which is a relevant circumstance to be taken into account for determining whether the delay in supplying the copies has, .. in fact, prejudiced the detenu's right to make a speedy and effective representation. [363 C-E, H, 364 A-D-G] Khudi Ram v. State of West Bengal, [1975] 2 S. C. R. S32, Go/am v. The State of West Bengal, W. P. 270 of 1974 dated 12-9-74; Prab/m Dayal Deorah etc. v. District Magistrate, Kamrup & Ors.. A. LR. 1974 S. C. 183. referred to. ORIGINAL JURISDICTION : Writ Petition No. 449 of 1980. I (Under Article 32 of the Constitution) Soli J. Sorabjee, M. G. Karmali, Vineet Kumar and Mukul Mudgal for the Petit,ioner. J. L. Nain and M. N. Shroff for the Respondent. ; , The Judgment of the Court was delivered by, SARKARIA, J. -This is a petition under Article 32 of the Constitution for the issuance of a writ of habeas corpus.

On January, 31, 1980, an order of detention, dated January JO. 1980 under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, called the COFEPOSA), issued by the second respondent, Shri P. M. Shah, Deputy Secretary to the Govemniernt of Gujarat, Home Department, was served on Lallu Jogi Patel (hereinafter referred to as the 'detenu'). The order was expressed in the name of the Governor of Gujanat. On the same date (January 31, 1980)~ the grounds of detention were served on the detenu. [19811 1 S. C. R. The grounds of detention served on the detenu are very elabo· rate and detailed. They also contain the introductory background, jlJIC]uding th,e history oJf the detenu. It is stated herein that the detenu was previously detained by an order, dated Septemb,er 1974. of the Govetrnment of India, under Section. 3 of the Maintenance of Internial Security Act (MISA).

On, the repeaQ 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 Ju:n,e 27, 1975, made under Article ~,,,. 359(1) of the Constitution which had suspended the iights under Articleli 14,- 21 ar~d 22 011 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 Depart· ment. 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 othter suspected smugglers wefei. however, detected. On November 21, 1979, the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist-watches and silver out of the country to Dubai. In pursuance of that conspfracy, .

on October 9, 1979, the detenu and the said Umar Bakshi smuggled about 45 slabs of silver in the vessel "'Saraswati Prasad" registered in the name of Ravia Kalan of Daman. On November 30, 1979, 23 slabs of silver weighing, in aggregate, 692. 527 kgs. valued at Rs. 15,65,111, were 5eized by the officers of the Collectorate of Central Excise and Customs from a truck which was intercepted near village Pipodara. The occupants -of the motm-truck disclosed their, identi~ies as (1) Kailashchandrla( · Shantilal Jain, (2) Mohmed Hussain Hanif Mohmed Pathan, the driver, and (3) Babukhan Istiyarkhan Ahmed Path~n. ,the cleaner. all of Udaipur. The statements of these persons recorded under Section 108 of the Customs · Act and the other circumstantial evidence collected. revealed that the detenu was engineering the whole process of attempting to smuggle the silver out of India in conspiracy . with Umar Bakjhi and others. In para 35 of the 'grounds', it is mentioned: "The detaining authority, viz.

, the State ·Government considered it against the public interest to disclose the sources of the intelligence referred in paragraphs 3, 4, 6 and 30 and -- )-*- the detenu's application for obtaining copies o:f 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 cop)es, the detenu did not make any representation to the detaining authority or for the consideration of tbe Advisory Board. This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenu's right to make a speedy and effective representation. According to the petitioner his lawyer by a letter, dated February 1, 1980. sought an interview to enable him to draft his representation.

But no application for obtaining copies of the material documents had been made by the detenu till February 15/18, 1980; when it was put in a course of communication to the Government, while permission for interview with the lawyer was A granted on ·the 20th February. In short, on a consideration of all the circumstance of this • particulars case, we are of opinion that the detay of 17 days in question, was not so unreasonable as to amooot to an infraction of the constitutional imperatives in Article 22 (5) of the Constitution. B These, then, are the reasons in support of our order, dated May 9, 1980 by which we dismissed the writ petition. S. R. Petition dismissed. 3-647 S. C. Jndia/80