B. Audi Lakshmi v. Government of Andhra Pradesh etc.
1984-03-13
LAKSHMINARAYANA REDDY, PUNNAYYA
body1984
DigiLaw.ai
JUDGMENT Punnayya, J.–The petitioner seeks for the issuance of a writ of habeas corpus directing the respondents to release the dentenu, who is the petitioner's husband. The petitioner's husband was detained on 10th December, 1983 in the Central Jail, Visakhapatnam by an order of detention dated 9th December, 1983, passed under section 3 (a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (hereinafter referred to as the Act.) 2. The petitioner was detained on the following grounds : (1) The petitioner's husband is a Proprietor of S.R.K.A.L. Transport, Nellore, owning three lorries 1. TMT 3789, 2. TMT 6219 and 3 AAN 4999. The first two of them are registered in the name of the detenue and the third lorry belongs to the above Transport concern, and are plying with the name ‘SRKALT.’ painted to the front board of the lorries. With the aid of these three lorries, the detenu is alleged to be indulging in unauthorised transport of paddy and rice outside the State for sale without obtaining licence under the Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982 and also instigating other unauthorised dealers to get the paddy and rice transported in his vehicles contrary to the provisions contained in the Andhra Pradesh Rice Procurement (Levy) and Restriction of Sale Order, 1967, without giving levy to the Government and obtaining a valid permit for the transport for sale outside the State. On 6th April, 1983, the Deputy Superintendent of Police (V.C.) C. S. Department, Tirupathi intercepted the lorry TMT 3789 at the Motor Vehicles Inspector's check post, Tada and found transporting 20 bags of paddy and four bags of rice without any valid permit in addition to the quantity of 135 bags of rice covered by permit No. 1858/82-83 dated 2nd April, 1983, issued by the Collector, Prakasam District for sale at Tada. The Transport and sale of 20 bags of paddy, weighing 15 quintais and four bags of rice weighing three quintals outside the State, has not been mentioned either in the TRIP SHEET or in the WAY BILL.
The Transport and sale of 20 bags of paddy, weighing 15 quintais and four bags of rice weighing three quintals outside the State, has not been mentioned either in the TRIP SHEET or in the WAY BILL. The Deputy Superintendent of Police (V.C) Tirupathi, therefore, seized the lorry as well as the goods found in the lorry and registered a case in Crime No, 22 of 1983 for violation of clauses 3-A (1) and 4 (1) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order, 1967. (2) On 4th August, 198,3, The Inspector of Police (V.C)C.S Department, Ongole along with the staff under the supervision of the District Superintendent of Police, Warangal, on special duty, at 06.00 hours seized the lorry TMT 6219 belonging to the detenu at Chengalamma Temple, Sullurpet when it was proceeding towards Madras loaded with 138 hags of paddy weighing 102 quintals and four bundles of rice, for purposes of sale, without a valid permit. The said Inspector of Police and his staff surreounded the lorry and questioned the driver Ramakrishnaiah about the load. He stated that the lorry contained 138 bags of paddy and four bundles of rise and 8 bundles of old alluminium vessels and two bunles of plastic material, and that it was proceeding to Madras. There is no licence for him to carry on business in sale of paddy and rice. The trip sheet disclosed that 25 bundles of old plastic waste was being transported from SRKALT premises, Nellore to Madras. The way bill No, Nil dated 26th July, 1983, shows that 25 bundles of old plastic waste being transported from Nellore to Karim Basha, Yerrabolu Street, Madras. The detenu is therefore, guilty of getting the paddy and rice transported to Madras without obtaining licence under the Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982 and contrary to clauses 3-A (1) and 4 (1) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order, 1967. (3).
The detenu is therefore, guilty of getting the paddy and rice transported to Madras without obtaining licence under the Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982 and contrary to clauses 3-A (1) and 4 (1) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order, 1967. (3). On 6th September, 1983, the Inspector of Police, Oudur seized the lorries of the detenu bearing No. TMT 3789 with 300 bags of paddy weighing 129 quintals, and AAN 4999 with 120 bags of rice weighing 75 quintals, when they were kept at 2/2 K.M. on Gudur Momidi road for purposes of transport and sale in Tamil Nadu State, The Inspector of Police, Gudur verified the records and found that the lorry TMT 3789 contained no trip sheet and the lorry AAN 499 - contained the way bill dated 5th September, 1983, showing that the lorry is transporting 132 bags of “Chamagaddala” from Nellore to Madras. The Inspector of Police, Gudur registered a case in Crime No. 180 of 1983 of Gudur Rural Police Station for violation of the clause 3 of the Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982 and clause 3-A (1) of the Andhra Pradesh Rice Procurement (Levy) and Restriction of Sale Order, 1967, in respect of lorry TMT 37S9 and Clause 4 (1) of the same Order in respect of the lorry AAN 4999. 3. The order of detention was served on the detenu on 10th December, 1983 while, the grounds were furnished to the detenu on 14th December, 1983, and the copies of documents were furnished to the detenu on 21st December, 1983. 4. The petitioner questions the validity of the order of detention on several grounds. 5. Sri Padmanabha Reddy, the learned Counsel for the petitioner detenu contends that in as such as the documents are not furnished to the detenu along with the grounds of detention, the detention is vitiated. In support of his contention he relied upon two decisions of the Supreme Court Ana Carelina D'Souza v. Union of India Ana Carelina D'Souza v. Union of India 1981 Crl.L.J. 1277:A.I.R. 1981 S.C. 1620 and Kirit Kumar v. Union of India Kirit Kumar v. Union of India (1981) 2 S.C.R. 718 : (1981) 2 S.C.C. 436 :(1981) S.C.C. (Crl.) 471:1981 Crl.L.J. 1267:22 Guj. L.R. 1067:A.I.R. 1981 S.C. 1621.
L.R. 1067:A.I.R. 1981 S.C. 1621. He also contends that the documents, on which the detaining authority relies in support of the grounds of detention, should be furnished to the detenu not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention as contemplated by section 8 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, which will hereinafter be refered to as ‘the Act’ and as the documents were not furnished within ten days as required by section 8 of the Act from the date of detention, the order of detent on should be set aside. In support of this contention, he relied upon the decision of the Supreme Court in Icchu Devi v. Union of India Icchu Devi v. Union of India A.I.R. 1980 S.C. 1983. 6. Sri Manohar, the learned Additional Advocate General, on he other hand, contends that Article 22 (5) of the Constitution or section 8 of the Act does not enjoin the detaining authority to furnish the documents along with the grounds of detention. According to him, clause (5) of Article 22 of the Constitution or section 8 of the Act deals with the time within which the grounds on which the detention has been made, should be furnished and they do not fix the time limit for furnishing the documents to the Detenu and the Law enjoins that the documents should be furnished to the detenu with reasonable expedition and the reasonable expedition will depend upon the facts of each case. In support of this contention, he relied upon the Full Bench decision of he Supreme Court in Ramachandra Kamat v. Union of India Ramachandra Kamat v. Union of India (1980) 2 S.C.C. 270 :(1980) S.C.C. (Crl.) 414:A.I.R. 1980 S.C. 765.
In support of this contention, he relied upon the Full Bench decision of he Supreme Court in Ramachandra Kamat v. Union of India Ramachandra Kamat v. Union of India (1980) 2 S.C.C. 270 :(1980) S.C.C. (Crl.) 414:A.I.R. 1980 S.C. 765. He further contends that their Lordships of the Supreme Court did not correctly follow this decision in Kirit Kumar v. Union of India Kirit Kumar v. Union of India (1981) 2 S.C.C. 435:A.I.R. 1981 S.C. 1621; the learned Additional Advocate General commented that though the Full Bench of the Supreme Court did not mandate that the documents should be furnished along with the grounds of detention, he was not able to comprehend as to how the Division Benches of the Supreme Court in 1981 Crl.L.J. 1277:A.I.R. 1981 S.C. 1620 and (1981) 2 S.C.C. 436 :A.I.R. 1981 S.C. 1621 can take the view that the documents should be furnished to the detenu along with the grounds of detention. He also contends that as the documents were supplied on 21st December, 1983 to the detenu, it should be treated that the documents were supplied with reasonable expedition and the case on hand is, therefore squarely covered by the decision of the Full Bench in Ramachandra A. Kamat v. Union of India Ramachandra A. Kamat v. Union of India (1980) 2 S.C.C. 270 :A.I.R. 1980 S.C. 765, and hence the above cited two rulings and also the ruling in Jcchu Devi v. Union of India Jcchu Devi v. Union of India A.I.R. 1980 S.C. 1983, which is again the ruling of the Division Bench does not apply to the case on hand. 7. It is now well settled that the right to make a representation is a fundamental right. This right cannot be exercised by the detenu unless the grounds are furnished to him by the detaining authority as soon as may be as required by clause (5) of Article 22 of the Constitution after making the order of detention. In order to make an effective representation, the detenu is entitled to obtain information relating to the grounds of detention. If there are any statements and documents referred to in the grounds of detention they must also be communicated to the detenu because they form part of the grounds and the grounds furnished to the detenu cannot be said to complete without them.
If there are any statements and documents referred to in the grounds of detention they must also be communicated to the detenu because they form part of the grounds and the grounds furnished to the detenu cannot be said to complete without them. It would, therefore, be incumbent on the part of the detaining authority to communicate to the detenu not only the grounds of detention but also the copies of the statements and the documents relied upon or referred to in the grounds of detention. 8. This legal position is made clear by the Supreme Court in several cases. In Ramachandra A. Kamat v. Union of India Ramachandra A. Kamat v. Union of India (1980) 2 S.C.C. 270 :A.I.R. 1980 S.C. 705, their Lordships clearly stated that when the grounds of detention are served on the detenu, the detenu is entitled to ask for copies of the documents referred to in the grounds of detention to enable him to make an effective representation. In Icehu Devi v. Union of India Icehu Devi v. Union of India A.I.R. 1980 S.C. 1983, their Lordships observed that it is obvious when clause (5) of Article 22 of the Constitution provides that the grounds of detention should be communicated to the detenu, what is meant is that the grounds of detention in their entirety must be furnished to the detenue. 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. 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 material relied upon in the grounds of detention must also be furnished to the detenu. 9. In Shalini Soni v. Union of India Shalini Soni v. Union of India 1980 Crl.L.J. 1487 : (1980) 4 S.C.C. 544 : (1981) S.C.C. (Crl.) 38 : (1981) 1 S.C.R. 962 : A.I.R. 1981 S.C. 431, their Lordships declared that the grounds in Article 22 (5) of the Constitution do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The “grounds” must be self-sufficient and self-explanatory.
The “grounds” must be self-sufficient and self-explanatory. Therefore, copies of documents to which reference is made in the grounds must be supplied to the detenue as part of the grounds. The failure to communicate the factual material as a part of the grounds would amount to non-communication of grounds on which the order of detention has been made and, thus would infringe Article 22 (5) of the Constitution. 10. In Tushar Thakker v. Union of India Tushar Thakker v. Union of India 1980 Crl.L.J. 1492 : (1980) 4 S.C.C. 499 : (1981) S.C.C. (Crl.) 13 : A.I.R. 1981 S.C. 436; their Lordships held that the detenu has a Constitutional right under Article 22 (5) of the Constitution to be furnished with copies of all the materials relied upon or referred to in the grounds of detention 11. In Ana Carelina D'Souza v. Union of India Ana Carelina D'Souza v. Union of India (1981) Crl.L.J. 1277 : A.I.R. 1981 S.C. 1620 their Lordships held that if the documents on which the grounds of detention were based, were not supplied to the detenu, the detention is vitiated. 12. In Kirit Kumar v. Union of India Kirit Kumar v. Union of India (1981) 2 S.C.C 436 : A.I.R. 1981 S.C. 1621, their Lordships held that where the documents are referred to, relied upon or taken into consideration by the detaining authority, they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. Where it is not done, the detention should be void. 13. The next question that requires consideration is whether the documents relied upon or referred to in the grounds of detention should be furnished to the detenu along with the grounds of detention. 14. Admittedly the documents were not furnished to the detenu, in the ease on hand, along with the grounds of detention and they were furnished to the detenu on 21st December, 1983 while he was detained on 10th December, 1983.
14. Admittedly the documents were not furnished to the detenu, in the ease on hand, along with the grounds of detention and they were furnished to the detenu on 21st December, 1983 while he was detained on 10th December, 1983. It is now well settled that the day on which the detenu was arrested and also the day on which the documents were furnished should be included for computing the period within which the documents were furnished Vide C. Krishna Reddy v. Commissioner of Police, Hyderabad Vide C. Krishna Reddy v. Commissioner of Police, Hyderabad 1982 Crl.L.J. 592, and also the decision of this Court in W. P. No. 615 of 1973 dated 9th February, 1973 reported in (1974) Crl.L.J. 158. If that be so, the documents were furnished to the detenu in 12 days. The Bench of three Judges of the Supreme Court in Ramachandra A. Kamat v. Union of India Ramachandra A. Kamat v. Union of India (1980) 2 S.C.C. 270 :A.I.R. 1980 S.C. 765, held that the documents should be supplied to the detenu with reasonable expedition to enable him to make an effective representation when the detenu makes a request for such documents. Their Lordships also held that what is reasonable expedition will depend on the facts of each case. In that case, the documents referred to in the grounds of detention were not supplied along with the grounds of detention to the detenu, who was arrested on 5th September, 1979 under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and who was served with the grounds of detention on the same day. The detenu's advocate addressed a letter dated 7th September, 1979, to the Additional Secretary to the Government of India for supply of documents referred to in the grounds of detention but they were not furnished. On 14th September, 1979, the Advocate addressed another letter to the Deputy Director with a request for the supply of the documents. The Deputy Director gave a reply dated 22nd September, 1979, requesting the Advocate to see the Deputy Director on 24th September, 1979 at 14.30 hours to make inspection of the documents. On inspecting the documents, the Advocate was not satisfied and insisted on the supply of document:; and ultimately the documents were supplied on 26th September, 1979 and 29th September, 1979. 15.
On inspecting the documents, the Advocate was not satisfied and insisted on the supply of document:; and ultimately the documents were supplied on 26th September, 1979 and 29th September, 1979. 15. Their Lordships held that : “ It may not be necessary for the detaining authority to supply copier of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation, it is necessary that he should have copies of the statements and documents referred to in the grounds of detention, it is the duty of the detaining authority to furnish them with reasonable expedition. The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation. In this case, the detaining authority should have taken reasonable steps to provide the detenu or his advocate with the statements and documents as early as possible. After a lapse of 18 days i.e., on 22nd September, 1979 the Deputy Director offered inspection. Taking into account the facts and circumstances of the case and explanation furnished by the detaining authority, we are of the view that the detaining authority failed to act with reasonable expedition in furnishing the statements and documents referred to in the grounds of detention”. 16. Their Lordships ultimately set aside the order of detention and ordered for the release of the detenu forthwith. 17. In this decision their Lordships took the view that it may not be necessary for the detaining authority to supply copies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu. But, when once the detenu requires the concerned authority for furnishing the documents to enable him to make an effective representation, it is the duty of the detaining authority to furnish them with reasonable expedition. Their Lordships also held that the delay is unreasonable, even if it be a few days beyond prescribed period of 15 days under section 3, sub-section (3) of COFEPOSA ACT. 18.
Their Lordships also held that the delay is unreasonable, even if it be a few days beyond prescribed period of 15 days under section 3, sub-section (3) of COFEPOSA ACT. 18. In Kirit Kumar v. Union of India Kirit Kumar v. Union of India (1981) 2 S.C.C. 436 , their Lordships held that the statements and documents referred to in the grounds of detention should be furnished to the detenu together with the grounds of detention. In this decision, Fazal Ali, J., speaking for the Bench clearly observes: “When once the documents are referred to in the grounds of detention, it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or “Pari Passu” the grounds of detention”. The expression “Pari Passu the grounds of detention.” means. “Together with the grounds of detention.” Their Lordships, therefore, took the view that the documents should be furnished to the detenu together with the grounds of detention. 19. In Ana Carelina D'Souza v. Union of India Ana Carelina D'Souza v. Union of India 1981 Crl.L.J. 1277 : A.I.R. 1981 S.C. 1620, Chinnappa Reddy, J., speaking for the Bench held : “that it is admitted by the learned Counsel for the respondents that the documents upon which grounds of detention are based were not supplied to the detenus along with the grounds of detention. In view of the long line of decisions of this Court, we have no option but to direct the detenus to be set at liberty forthwith. It is so ordered”. 20. In Iechu Devi v. Union of India Iechu Devi v. Union of India A.I.R. 1980 S.C. 1983, the legal position whether the documents should be furnished along with the grounds of detention or not is clarified. This also clarifies as to when the documents referred to in the grounds of detention should be furnished, it also lays down that if they are furnished beyond the period of 15 days prescribed under section 3 of COFEPOSA ACT, the delay is unreasonable and the right to make effective representation is denied.
This also clarifies as to when the documents referred to in the grounds of detention should be furnished, it also lays down that if they are furnished beyond the period of 15 days prescribed under section 3 of COFEPOSA ACT, the delay is unreasonable and the right to make effective representation is denied. In this case the detenu contends that the detaining authority did not serve on him along with the grounds of detention, copies of those statements, documents and tapes and it could not, therefore, be said that the grounds of detention were duly served on the detenu as required by sub-section (3) of section 3 of the COFEPOSA ACT and clause (5) of Article 22 of the Constitution. The detenu urged that sub-section (3) of section 3 of COFEPOSA ACT and Clause (5) of Article 22 of the Constitution-required that the detaining authority should as soon as may be communicate to the detenu the grounds on which the order of detention has been made and such grounds would comprise not merely a bare recital of the grounds of detention but also all statements and documents relied upon in the grounds of detention, and the detaining authority was bound to give copies of the statements, documents and tapes relied upon in the grounds of detention to the detenu without any avoidable delay in order that the detenu should have the earliest opportunity of making an effective representation against the order of detention. 21. Their Lordships found force in these contentions and held that this ground of challenge urged on behalf of the petitioner appeared to them to be well founded. Speaking for the Bench, Bhagwati, J., observed: “It will be seen that one of the basic requirements of clause (5) of Article 22 is that the authority milking the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub- section (3) of section 3 of the COFEPOSA ACT the words “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 15 days, from the date of detention.
The 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 event it cannot be later than 15 days from the date of detention. These are the two outside time limits provided by sub- section (3) of section 3 of the COFEFOSA 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 detention and it is a basic requirement of clause (5) of Article 22 or that the detenu must be offered the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued 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- section (3) of the COFEPOSA IN1974COFE01. Now it is obvious that when clause (5) of Article 22 and sub- section (3) of section 3 of the COFEPOSA ACT provide that the grounds of detention should be communicate to the detenu within 5 or 15 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 furnished to the detenu and cannot be said to be complete 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 grounds of detention must also be furnished to the detention 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 detection to the detenu is to enable the detenu, 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 representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. 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 along with 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 15 days from the date of detention If this requirement of clause (5) of Article 22 read with section 3, sub- section (3) is not satisfied, the continued detention of the detenu would be illegal and void.” 22. Sri Padmanabha Reddy contends that their Lordships in this ruling insisted on the supplying of the documents along with the grounds of detention. 23. But we find it difficult to accept this contention of Sri Padmanabha Reddy. A careful perusal of the judgment of their Lordships in this case does not lay down any such emphasis. It is useful to extract here, for proper appreciation, the relevant passage in the said judgment: “………..Copies of the documents; statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in expeptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention“. 24.
24. Thus it is clear that their Lordships felt it desirable that the documents should be furnished along with grounds of detention and if they are not furnished along with the grounds of detention, they should be furnished not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days as required by section 3, sub- section (3) of the COFEPOSA Act. In the light of the view taken in Icchu Devi v. Union of India Icchu Devi v. Union of India A.I.R. 1980 S.C. 1983, we accept the contention of the learned Additional Advocate General that the detention was not vitiated on the ground that the documents were not supplied to the detenu along with the grounds of detention. It is in the light of the rulings of the Supreme Court in Ramachandra A. Kamat v. Union of India Ramachandra A. Kamat v. Union of India (1980) 2 S.C.C. 270 :A.I.R. 1980 S.C. 765, and also Icchu Devi v. Union of India Icchu Devi v. Union of India A.I.R. 1980 S. C. 1983, that we find it difficult to hold that the detention is void because the documents were not supplied to the detenu along with the grounds of detention. It is true that the ruling in Ana Carelina D'Souza v. Union of India Ana Carelina D'Souza v. Union of India 1980 Crl.L.J. 1227 and Kirti Kumar v. Union of India Kirti Kumar v. Union of India (1981) 2 S.C.C. 436 :A.I.R. 1981 S.C. 1621, require that the documents should be supplied along with the grounds of detention. In preference to these rulings, we follow the ruling of Full Beach in Ramachandra A. Kamat v. Union of India Ramachandra A. Kamat v. Union of India (1980) 2 S.C.C. 270 which was followed by their Lordships in Icchu Devi v. Union of India Icchu Devi v. Union of India A.I.R. 1980 S.C. 1983. 25. Now we have to examine whether the contention of Sri Padmanabha Reddy that the detention is void, as the documents were not supplied within the period prescribed by section 8 of the Act. 26. Admittedly the documents were not supplied to the detenu within 10 days.
25. Now we have to examine whether the contention of Sri Padmanabha Reddy that the detention is void, as the documents were not supplied within the period prescribed by section 8 of the Act. 26. Admittedly the documents were not supplied to the detenu within 10 days. The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention. Unless the former right is available, the latter cannot be meaningfully exercised. As the documents relied upon or referred to in the grounds of detention form part of such grounds, they have to be supplied to the detenu without undue delay, which their Lordships in Icchu Devi v. Union of India Icchu Devi v. Union of India A.I.R. 1980 S.C. 1983, explain as “within five days or within 13 days for reasons to be recorded as required by section 3 sub- section (3) of the COFEPOSA Act. It admits of no doubt that what holds good in the case of section 3 sub- section (3) of the COFEPOSA Act holds good in the case of section 8 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The detaining authority did not explain as to why they could not supply the documents to the detenu within 10 days which is the period prescribed by section 8 of the Act. As the grounds of detention refer to the documents in grounds of detention or as the detaining authority relied upon the documents and as those documents are in the possession of the detaining authority, there cannot be any difficulty for the detaining authority to furnish these documents within five days from the date of detention or within 10 days for reasons to be recorded. In fact, the detaining authority ought to have kept ready with the copies, of documents relied upon in the grounds of detention, as Law enjoins that the detaining authority was bound to furnish the documents referred to in the grounds of detention. 27.
In fact, the detaining authority ought to have kept ready with the copies, of documents relied upon in the grounds of detention, as Law enjoins that the detaining authority was bound to furnish the documents referred to in the grounds of detention. 27. The learned Additional Advocate General contends that the Bench of three Judges in Ramachandra A. Kamat v. Union of India Ramachandra A. Kamat v. Union of India (1980) 2 S.C.C. 270 :‘ (1980) S. C. C. (Crl.) 414 : A.I.R. 1980 S. C. 765 did not fix the time limit within which the documents should be furnished and it merely held that the documents should be furnished with reasonable expedition and thus the time limit prescribed by their Lordships in A.I.R. 1980 S. C. 1983 is contrary to the view of the Bench of three Judges in (1980) 2 S.C.C. 270 : (1930) S.C.C. (Crl.) 414 : A.I.R. 1980 S.C. 765 and as the documents were furnished in 12 days, it should be treated that the documents were furnished to the detenu with reasonable expedition. 28. We do not think that the view taken by his Lordship Mr. Justice Bhagwati in Icchu Devi v. Union of India Icchu Devi v. Union of India A.I.R. 1980 S.C. 1983 is contrary to the view taken by his Lordship Mr. Justice Kailasam in (1980) 2 S.C.C. 270 : (1980) S.C.C. (Crl.) 414 : A.I.R. 1980 S.C. 765. Both the benches are in agreement with the right of the detenu to be furnished with the documents, or statements or any other material referred to or relied upon in the grounds of detention. Both the Benches are keen to say that the documents or statements should be furnished without undue delay. Both the Benches are unanimous in holding that if there is any undue delay in furnishing the statements or documents referred to in the grounds of detention, the right to make effective representation is denied and the detention cannot be said to be according to the procedure prescribed by Law.
Both the Benches are unanimous in holding that if there is any undue delay in furnishing the statements or documents referred to in the grounds of detention, the right to make effective representation is denied and the detention cannot be said to be according to the procedure prescribed by Law. Both the Benches also are of the opinion that if the documents or statements referred to or relied upon in the grounds of detention are not furnished, ordinarily within 5 days, the delay should be satisfactorily explained in writing giving reasons provided that they are furnished within 15 days as required by section 3 sub section (5) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (LVII of 1974). Mr. Justice Kailasam observed that when the Act contemplates furnishing of the grounds of detention ordinarily within five days of the order of detention, the intention is clear that the statements, documents or other material referred to in the grounds of detention, which are in possession of the detaining authority, should be furnished with reasonable expedition. The same view was taken by His Lordship Mr. Justice Bhagwati and further clarified as to what is reasonable expedition with reference to section 3 sub-section (3) of COFEPOSA Act and held that if the documents are furnished without explanation within five days and with explanation in writing within 15 days it should be held that the documents are furnished with reasonable expedition and if, on the other hand, the documents are furnished beyond 15 days, the delay is unreasonable and it is not according to the procedure prescribed by law. Hence, we hold that it is not correct to say that his Lordship Mr. Justice Bhagwati took a different view in A.I.R. 1980 S.C. 1983, when his Lordship fixed the time limit of 15 days prescribed under section 3 sub-section (3) of COFEPOSA Act. The Law propounded by his Lordship Mr. Justice Bhagwati in A.I.R. 1980 S.C. 1983 requiring the documents to be furnished to the detenu within the period of 15 days under section 3 sub- section (3) of the COFEPOSA Act will squally hold good with regard to the period of 10 days within which the documents should be furnished to the detenu under section 8 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
We find no merits in the above contention of the learned Additional Advocate General. As the documents are not furnished within 10 days as required by section 8 of the Act, he constitutional requirements of clause (5) of Article 22 of the Constitution read with section 8 of the Act are not satisfied and the delay in furnishing the documents, therefore, has vitiated the detention and the detenu is entitled to be released forthwith. 29. Since this ground is sufficient for setting aside the detention, we need not propose to examine the other grounds. 30. We, therefore, issue the writ of habeas corpus as prayed for and direct the respondents to release the detenu forthwith. 31. In the result, the writ petition is allowed. W.P.No. 12353 of 1983. 32. In this writ petition also the same contentions i.e. that the documents were not furnished to the detenu along with the grounds of detention or within 10 days as required by section 8 the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980, are raised. 33. The view, which we have taken in W.P.No. 12223 of 1983 which deals with the same questions, applies to this case also. 34. In the view, which we have taken in the W. P. No. 12223 of 1983 we hold that the detention is void and hence it is quashed. 35. We, therefore, issue the writ of habeas corpus and direct the respondents to release the detenu forthwith. 36. In the result, the writ petition is allowed. V.K. ----- W.Ps. allowed.