KAMLA KANAHIYALAL KHUSHALANI v. STATE OF MAHARASHTRA AND ANR

Citation: [1981] 2 S.C.R. 459

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A. VARADARAJAN

Case summary

Unless this is done, there could be no question of making any representation, much less an effective representation, against the order of detention. it has clearly held that before an effective representation can be made by the detenu.

Judgment text

• KAMLA KANAHlYALAL KHUSHALANI v. STATE OF MAHARASHTRA AND ANR. January 6, 1981 [S, MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ. ] 8 Conservation of Foreign Exchange and Prevention of S1nuggling Activities Act, 1974-Scction 3(3)-Failure to 1upply docu11if! 1t/s and rnatcrials to the d1. :ft'11u-Efiect of-"cffective representation"-Meani11g of. In a petition under· Art.

32 of the Constitution the petitioner detenu com· -plained that though the grounds of detention were served on the dctenu on the date of arrest (October 20, 1980) the materials and documents on which the order of detention was based were not supplied to him till November 5, 1980 and that his representation dated November 18, 1980 was disposed of nearly a month later (December 15, 1980) and that the failure on the part of the detaining authority to supply the requisite documents and materials and the unexplained delay in the disposal of the representation constituted violation of the safeguards contained in Art, 22(5) of the Constitntion which vitiated the . order of detention. Allowing the petition, HELD': I~ is well settled that the law of preventive detention has to and the grounds furnished to the detenu cannot _be said to be coqiplete 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 documents, statements and other materials relied upon in the groUJ)ds of detention must also be furnished to the dctenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the dctenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representatioi:i unless he is also furnished copies of the documents, statements and other nraterials relied upon in the grounds of detention.

There can t}Jereforc be no doubt that on a proper construction of clause (5) of Anick 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) o[ Article 22 copies of the (I) [1980J 4sec 531 [19s111 scR64o (2) [I 930J 4 sec 544 ___,_ "~,,--. -~ documents, statements and other materials relied upon in the · grounds of detention shoul. d be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorde 7 and 8 of the judgment but they do not, in our opiuion, form the ratio decidendi of this case but were made merely to rebut the extreme arguments that could be put forward. This Court made it very clear that n even apart from the interpretation placed by the Court on Art.

22(5) of the Constitution, the conclusion is inescavable that the documents and statements which formed the basis of the grounds of detention must be supplied to the detenu without least possible delay. It is in this context that these observations were made in paragraphs 7 and 8. Moreover, this position has been made absolutely clear by a letcr dedsion of this Court in Smt. Shalini Soni's case (supra) where a Division Bench of this Court while endorsing Smt. Tcchu Devi's case observed as follows :- "The matter may aJso be looked at from the point nf view of the second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact.

If + the detenn is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that 'grounds' in Article 22(5) do not mean mere factual inferences but me-an factual inferences plus factual material which led to such factual inferences. The grounds must be self-sufficient and selfcxplanatory. In our view copies of documents to which ·. reference is made in the 'grounds' must be supplied to the 'cletenu· as part of the 'grounds'. " . :·· . The Court, therefore, clearly held that the documents and materials relied. ll'pOn in the order of detention formed an integral part of the grounds and nrnst be supplied to the detenu pari passu tbc grounds of defention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention.

In this case, the court relied upon the ratio in _lcchu i/)evi Choraria's case (supra) extracted above. We find ourselves in complete agreement with the view expressed by the- 'two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending ! he case for reconsideration to a larger Bench. This Court has invariably laid down that before an order of • detention can be supported, the constitutional safeguards must be strictly observed. · This Court in Maneka Gandhi v. Union of India (') has widened the horizon of Art. 21 and added new dimensions to various features of Md. concept of liberty enshrined in Art. 21. In view of the decision in the aforesaid case, Art. 22(5) of the Constituticn assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If procedure under Art.

21 has to be reasonable, fair and just, then the words 'effective representation' appearing in Art. 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representation. If the words 'effective representation' are interpreted in an: artificial or fanciful r manner, then it would defeat the very object not only of Art. 22(5) · but also of Art. 21 of the Constitution. 1 'Ilrus, we are of the opinion that in view of \\hat has been laid down in Mankea Gandhi's case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now :to satisfy a twofold test : ( 1) that the protection and the guarantee afforded under Art. 22(5) is complied with, and (2) that the procedure is just:and reasonable.

In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a reprc- ~entation to the detaining authority. · (I) [1978] 2 SCR 621 It is well settled that the Court frowns on preventive detention without 'trial because the detenu is deprived of the right of proving his innocence in 'a trial by a court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Art. 21 or Art. 22(5) should be complied with fully ruid strictly and any departure from any of ! Jle safeguards would void the order of detention. This is so be<:ausc in a civilised society, like ours, liberty of a citizen is 'a highly precious right and a prized possession and has to be protected unless it be<:omes absolutely essential to detain ....

a person in order to prevent him from indulging in ar. ti-national activi- ·~· ties like smuggling, etc. We are fortified in' our view b;r a de. :ision of i this Court in SampaJ Prakash v. State of ! ammu & Kashmir(') where the following observations were made : "that the restrictions placed on a person preventively detained must, consistently with the effectivenese of <1etention, be minimal. " It is a matter of great concern and deep dismay that despite re-· peatcd warnings by this Court, the detaining authorities do no. t care to comply with the spirit and tenor of the constitutional safegir. irds contained in Art. 22 (5) of the Constitution.

It is manifest that when the detaining authopty applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention, prepared and attaching the same alongwith the grounds of detention, it the detaining authority is really serious in passing a valid order of detention. Unfortunately, the constitutional safeguards are nAlt com" plied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified iri suitable cases. We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard.

We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detainilig authority or the officers concerned who are associated with the prep:t- • ration of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and . materials II relied upon in _the order of detention pari passu the order of detention, etc. etc. ) or, at any rate, an explanation from the authorities concern- (! ) [1969] 3 SCR 574 «:d must be called for by the Central Government so that in future A persons against whom serious acts of smuggling are alleged, do not ~o scot free. In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has hccn a delay of about 25 days in disposing of the represenfation of the <l<'!

cnu and no explanation for the same has been given. These lire B maucrs which must be closely examined by the Government. For the reasons given above, we hold tliat the continued detention -<'f the detenu is void. We allow the petition and direct the detenu kl . be released forthwith. A copy of this judgment be sent to the Home Ministers of all the State Governments, Hon'ble the Home Minister of the Government of India and also the Hon'ble Finance Minister, c ·Government of India for necessary action. • IJ'. B. R. Petition allowed.