LALLUBHAI JOGIBHAI PATEL v. UNION OF INDIA & ORS (2)

Citation: [1981] 2 S.C.R. 352

Court: Supreme Court of India

Bench: R.S. SARKARIA, O. CHINNAPPA REDDY

Case summary

-By our order dated October 3, 1980, we had allowed this writ petition for the issue of a writ of Habeas Corpus and directed the release of the detenu. (as he then was), speaking for the Constitution Bench, held that where the High Court dismisses a writ petition under...

Judgment text

LALLUBHAI JOGIBHAI PATEL v. • UNION OF INDIA & ORS. December 15, 1980 [R. S. SARKARIA AND 0. Ctt! NNAPPA REDDY, JJ. ] Conservation of Foreign Exchange and Prevention of Smu,. u;ling Activities Act, 1974-Section 3-Scope of-Detenu, if could file a second petition for writ of habeas corpus aftet dismissal of the first petition-F~·rst petition, if operates as constructive res judicata-Constitutionul bnperatives under Art. 22(5)- What are. • Constructive res judicata-Grounds not taken in earlier petition for writ of habeas corpus-Second petition if barred by constructive res judicata-1/ applicable in illegal detentions. • Words and phra. ses--Con1n1unicate-Meaning of-Explaining the grounds of detention without giving theni to the detenu in writing-If amounts to communicarion.

After dismissal by this Court of the petition impugning the order of his detention under section 3 of the Conservation of Foreign Exchange and Pre· vention of Smuggling Activities Act, 1974 the petitioner filed the present peti· tion urging additional grounds which were not urged in the previous petition.

He alleged that (i) despite bis request for the supply of all the documents relied upon by the detaining authority while passing the order of detention the respondent failed to do so; (ii) that many of the documents wer~ either in· complete or had been wholly withheld and in particular 236 documents out of 460 documents purported to have been supplied to him were not ~upplied~ (iii) that though his representation dated July 17, 1980 for revocation of the detention order was forwarded by the jailer to the Central Government it had not been disposed of and (iv) that lastly serving the grounds of impugned order of detention, no specific ground was taken that documents covering aboi;t 236 pages which were relied upon by the detaining authority in passing the order of detention, were suppressed and not supplied to the petitioner. Indeed this is not dc'nicd in the counter-affidavit.

The petitioner has affinned in his affidavit that he came to know about the non-supply of these documents from the judgment of the Gujarat High Court subsequently to the dismissal of his earlier petition. This affirmation remains unchallenged. A catena of decisions of this Court has firmly established the rule that one of the constitutional imperatives embodied in Article 22(5) of the Constitution is that all the documents and materials relied upon by the deta;ning authority in passing the order of detention must be supplied to the detenu, as won as practicable, to enable him to make an effective representation. Recently, in Smt. lcchu Devi Choraria v. Union of India & Ors. ,(') this Court reiterated the principle as follows : "One of the basic requirements of clause (5) of Article 22 is that the authority making the order of dctentfon must, as soon as may be, communicate to the detenu the grounds (I) [1969] I S. C. R. 227. • (2) Smt. Razia Umar Bakshiv.

Unian afIndia [1980] 3 SCR 1398, (rendered by Fazal AH, J. )J (3) [1981] l S. C. R. 642. ' • U. LLUBHAI v. UNION (Sarkaria, !. ) 361 on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the Wl! rds "as soon as may be" have been translated to mean "ordinarily 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. " The 8 grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any cveut it cannot be later than fifteen days from the date of detention.

These are the two outside time limits provided by Section 3, subsection (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would • not be possible for him to make a representation against the order of detenion and it is a basic requirement of clause, (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation cgainst his detention. If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continned detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of Section 3 sub-s,ection (3) of the COFEPOSA Act.

Now it is obvious that when clause (5) ol 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 commu"nicated 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 with them. It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention • mnst also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order (I) [1981] 1 S. C. R.

642 to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act. " In the instant case, the materials and documents which wern not supplied to the detenu were evidently a part of those materials which had influenced the mind of too detaining authority in passing the R order of detention. In other words, they were a part of the basic facts anJ materials, and therefore, according to ! he ratio ot Smt. lcchu Deri's case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commellccment of detenj tion. Jn the counter-affidavit, it has not been asserted that these \ • documents, which were not supplied, were not relevant to the case of the detenu. Contention (2) The respondents have, in their counter-affidavit, stated that this represe'ntation was not addressed to the Central (io;ernment.

It is, 0 howev>"r, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him >hould be dealt with utmost ;expedition. This constitutional mandate has been honoured in breach 1egarding the representatio'n sent by the detcnu to the Central Government. Contention (3): It is an admitted position that the detenu does not know --~- English. The grounds of detention, which were served 011 the detenu, have been drawn up in English. It is true that Shri C. L.

Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of th•" Constitution, which requires that the grounds of detention must be "communicated'' to the detenu. "Communicate" is a stro'ng word. It means that suflicien: knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the dctcnu in writing in a • language which he understan<)s. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally ' r LALLUBHAI v. UNION (Sarkaria, J. ) 363 • A explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.

If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan v. State of Maharashtra('): and Haribandhu Dass. v. B District Magistrate (ibid). Thus all the three contentions canvassed by the counsel for the petitioner, on merits were sound. The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal. c It was for these reasons that we had allowed Writ Petition (Cr!. ) No. 4349 of 1980 by our order dated October 3, 1980, and directed the release of the detenu. • P. B. R. Petition allowed. ' • (1) [1962] Supp. 2 S. C. R. 918 '