Holding

The continued detention was illegal and void because the detaining authority failed to supply the documents, statements and tapes within the time limits prescribed by Article 22(5) and Section 3(3) of COFEPOSA, constituting unreasonable delay.

Summary

Mahendra Chordia was detained under the COFEPOSA Act on 4 June 1980 to prevent alleged smuggling. He repeatedly requested copies of statements, documents and tape recordings referred to in the grounds of detention so he could make an effective representation, but the authorities supplied these only on 11 July and the tapes on 20 July, far beyond the statutory limits of five (or fifteen in exceptional cases) days. The Supreme Court held that this unreasonable delay violated Article 22(5) of the Constitution and Section 3(3) of COFEPOSA, which require the detaining authority to furnish all material relied upon in the grounds of detention promptly. The Court also noted the delay in considering the detenu’s representations. Because the procedural safeguards were breached, the continued detention was declared illegal and void, and the detenu was ordered to be released. The writ petition was allowed.

Issues considered

The detaining authority’s compliance with Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act regarding furnishing copies of documents, statements and tapes within the prescribed time.
Whether the delay in supplying the required material and in considering the detenu’s representations invalidates the continued detention.
Whether the burden of proof lies on the detaining authority to justify the legality of the detention.
Whether the failure to provide the tapes impairs the detenu’s right to make an effective representation.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. section 3 sub-section (3)

Subjects

preventive detentionArticle 22(5)COFEPOSAprocedural safeguardshabeas corpusunreasonable delayright to representationpersonal liberty

Judgment

+

640

A

ICHHU DEVI CHORARIA
v.
UNION OF INDIA & ORS.
B
September 9, 1980
(P. N. BHAGWATr AND E. S. VENKATARAMIAH, JJ.]

Constitution of India 1950, Article 22(5)-Conservation of Foreign Exchange
and Prevention ,of Smuggling Activities Act, 1974, Section 3(3)--Detenu-
C Detention ordered for smuggling and abetting smuggling of goods-Represen-
tation of detenu against detention-Request of detenu for supply of copies of
statements ~nd documents referred to in grounds of detention-Unreasonable
delay in consideration of representation as well as request of dete1iu-N o expla-
mation for delay-Continued detention of detenu whether illegal and void-
Detenu whether entitled to be released.

D The detenu was taken under detention on 4th June, 1980 by an order of
detention dated 27th May, 1980. The order of detention recited that with
a view to preventing him from smuggling goods and abetting the smuggling of
goods it was necessary to detain him. After detention he was also served on
the same day,· the grounds of detention. The grounds of detention referred to
several documents and statements including two tape recorded conversations.
The detenu addressed a letter dated 6th June, 1980 asking for all st,1tements,
E documents and material to enable him to make an effective representation
against his detention. The detenu also sent a representation dated 9th June,
1980 to the Deputy Secretary once again requesting him to supply immediately
. the documents etc. relied upon in the grounds of detention and to furnish the
transcripts of the tapes a'; also to produce the original tapes, so that he could >io
prove that the voice recorded on· the tapes was not his. The detenu addressed
another representation dated 26th June, 1980 to the Chairman of the Advisory
F Board, the Central Government and the Deputy Secretary to the State Govern- -~
ment praying for revocation of the order of detention, wherein he pointed
out that by his letters dated 5th, 9th and 14th June, 1980, he had requested
for the tapes to be supplied to enabl~ him to prove that the voice recorded
on the tape,~ was not his and that this request had not been complied with
and in the circumstances the hearing of the case before the Advisory Boarµ.
would be futile. Meanwhile the Investigating Officer of the Customs Depart-
G ment was deputed to the Centtal Prison alongwith the tapes, and the tapes
were played in the presence of the detenu and the Deputy Superintendent of
the Central Prison on 8th July, 1980. The representations of the detenu were
examined by the government, who by their lettet dated 15th July, 1980 rejected
the representations and declined to revoke the order of detention. '1'
In the writ petition under Article 32 of the Constitution filed by the
H mother of the detenu it was contended : (1) that the detaining authority did
not serve on the detenu alongwith the grounds of detention, copies of the
statements, documents and tapes referred to in the grounds of detention and
it could not, therefore, be said that the grounds of detention wen; duly served
.:> :+.r- ,,_ -- r~~.~~."':'.~"·'"'~,:-~·rr· -- . r-·~ .,

'
/
/
ICHHU DEVL v, UNION 6 41
.on the detenu as required by sub-section (3) of section 3 of the COFEPOSA:· A
Act and clause (5) of Article 22 of the Constitution, and (2) that the, detaining
authority did not supply copies of such statements, documents and ·-materials'.
until 11th July, 1980 and on that day also, what were supplied were merely
copies of the statements and documents and not copies of· the tapes which
were supplied only on 20th July, 1980 and that this delay was wholly' unjustified·
and the detenu was thus denied the earliest opportunity of making an effective
representation and consequently the continued detention of the detenu was B
illegal and void.
Allowing the writ petition.
HELD : I. There was unreasonable delay on the part of the detaining
authority in supplying. to the detenu copies of all the relevant documents, and
therefore his continued detention was illegal and void. ·The detenu was entitled
to be releas~d forthwith from detention. [654 F] (:
2. The power of Preventive detention can be justified only in the interest,
. of public security and order and It. is tolerated in aj free society only as a
necessary evil. The power to detain without trial is an extraordinary power
constituting encroachment on personal liberty and it is the duty of the courts
to ensure that his power is exercised strictly in accordance with the requirements
of the Constitution and the law, the courts always leaning in favour of
upholding personal liberty. [646 F} D
3. The Constitution has while conceding the power of preventive deten-
tion, provided procedural safeguards with a view to protecting the citizen against
arbitrary and' unjustified invasion of personal liberty and the courts have always
zealously tried to uphold and enforce these safeguards. [646 HJ
4. If the detaining authority wants to preventively detain ·a smuggler it
can certainly do· so, but only in accordance with the provisions of the Consti- E
tution and the law and if there is a breach of any such provision, the rule
of law requires that the detenu must be set at liberty, howsoever wicked or
mischievious he may be. [647 BJ
5. Whenever a petition for a writ of habeas corpus has come up before
this Court, it has almost invariably issued a rule calling upon the detaining .
authority to justify the detention and when a rule is issued, it is incumbent
on the detaining authority to satisfy the court that the detention of the peti- F
tioner is legal and in conformity with the mandatory provisions •of the law
authorising such detention. [647 G]
Naranjan Singh v. State of Madhya Pradesh AIR 1971 SC 2215. Sheikh
Hanif Gudma Majhi & Kamal Saha v. State of West Bengal [19741 2 SCR 258,
Dula/ Roy v. The District Magistrate', Burdwan & Ors. [1975] 3 SCR 186, Naza-
muddin v. The State of West Bengal [1975] 2 SCR 593, Mohd. Alam v. State
of West Bengal [1974] 3 SCR 379, Khudiram Das v. State of West Bengal & G
Ors. b1975] 2 SCR 832, referred to.
6. 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 continu~nce
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 l!longwith the grounds of detention or in any event H
not later than five days and in exceptional circumstances and for raasons to
"be re_corded in writing, not later than fifteen' days from the date of detention.
'If this requirement of clause (5) of Article 22 read with section .3, sub-section (3)
642 SUPREME COURT REPORTS [1981] 1 S.C.R.

A is not satisfied, the continued detention of the detenu would be illegal and'
void. f650 H-651 B]
7. 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, because unless the former right is available, the latter cannot be·
B meaningfully exercised. This would seem to be clear on a fair interpretation·
of clause (5) of Article 22. [652 E-F]
Ramachandra A. Kamat v. Union of India [1980] 2 SCC 270 referred to.
In the instant case the detenu asked for copies of the documents, statements
and other materials relied upon in the grounds of detention by his letters dated
6th June, 1980 and 9th June, 1980 and he also complained about non-supply
c of such copies in his representation dated 26th June, 1980 but it was only ':ln
I Ith July, 1980 that such copies were supplied to him and even then the
copies of the tapes were not furnished until 20th July, 1980. There was thus
a delay of more than one month in supply of these copies, and the burden
of satisfactorily explaining this delay and showing that there was sufficient cause·
for it was on the detaining authority. The delay of 12 days i.e. from 12th
June, 1980 until 24th June, 1980 has not been satisfactorily explained either
D in the affidavit of the· Deputy Secretary to the State Government or in any
affidavit filed by the Assistant Collector of Customs. There was, therefore,
an unreasonable delay on the part of the detaining authority in supplying
to the detenu copies of the documents, statements etc. relied upon in the·
grounds of detention. The continued detention of the detenu was accordingly
illegal and void and he was entitled to be released forthwith from detention.
[652 H-653B, G; 654 F]
E
8. The representatioa of the detenu dated 9th June, 1980 was received
by the Deputy Secretary on 14th June, 1980 while the representation dated
26th June, 1980 was received on 30th June, 1980 and no decision was taken
on these representations of the detenu until 14th July, 1980. There is no
explanation at all for this delay in any of the affidavits filed on behalf of
the detaining authority. This is sufficient to invalidate the continued d~tention
of the detenu. [654 H-655 C, Gj
F
9. The Customs Department has not filed a charge sheet against the detenu
for prosecuting him in respect of the incidents referred to in the grounds of
detention even though more than' six months have passed. There should be,
no unreasonable delay on the part of the Customs authorities in completing·
the investigation of the cas,es against the detenu and prosecuting him in the
criminal courts if the evidence gathered by them in the course of the investi-
G gation justifies such a course. [656 B-q
ORIGINAL JURISDICTION : Writ Petition No. 2030 of 1980. '""
Under Article 32 of the Constitution.
Ramjethmalani, M. M. Lodha and Harjinder Singh for the Peti-
tioner.
H V. S. Desai, Mrs. Shobha Dixit, R. N. Poddar and Miss A. Subha··
shini for the Respondent.
The Judgment of the Court· was delivered by
ICHHU DEVI v. U'NION (Bhagwa#, J.)

BHAGWATI, J.-Thjs petition for a writ of habeas corpus challenges A
the continued detention of one Mahendra Chordia u.Ilder sub-section
(1) of section 3 of the Conservation of Foreign Exchange and Preven-
tion of Smuggling Activities Act, 1974 . (hereinafter referred · to as
COFEPOSf\ Act).
B
On 4th June, 1980 an order of detention dated 27th May 1980
was served on Mahendra Chordia (hereinafter referred to as the detenu)
and he was taken under detention. The order of detention recited that
the Governor of Maharashtra was satisfied with respect to the detenu
that, with a view to preventing him from smuggling goods and abetting
the smuggling of goods, It was necessary to make an order directing c
him to be detained and by the order of detention, the Governor of
Maharashtra in exercise of the powers conferred under sub-section· (l)
of section 3 of the COFEPOSA Act read with 'the Order of the
President of India in the notification of the Government of India dated
17 February, 1980 directed that the detenu be detained under that D
Act. Simultaneously with the order of detention, another order dated
27th May was also issued by the Governor of Maharashtra directing
that the detenu be detained in the Nasik Road Central Prison. When
the petitioner was arrested and taken under detention, he was also
served with a document dated 27 May 1980 containing the grounds of
detention as required by sub-section (3) of the COFEPOSA Act read
with clause (5) of Article 22 of the Constitution. The grounds of
-~. detention referred to several documents and statements including two
tape recorded conversations,' one between the detenu and one Ahluwalia
and the other between the detenu, Ahluwalia and an advocate '
-·~I

by ·the · name of Kumar Mehta. The detenu ther;fOre
addressed a letter dated 6th June, 1980 to the Deputy Secretary to, F
th~ Government of Maharashtra requesting him at his earliest to send
J
"all statements documents and· material" to enable him to make an
effective representation against his detention. The detenu also sent
a representation dated 9th June, 1980 to the Deputy Secretary once
~
~
again requesting him to supply immediately the documents, statements ]L

and materials relied upon in the grounds of detention so that the detenu G A
could make an effective representation and also specifically calling
upon the Deputy secretary to furnish the transcripts of the tapes as
also to produce the origin.al tapes for his inspection, so that he could
prove that the voice recorded on the tapes was not his.. This representa-
tion was admittedly received by the Deputy Secretary on 14th June
1980. The detenu thereafter addressed another communication to the H
Deputy Secretary requesting him to supply one accurate copy of the
tapes, so that he could have the tapes played in tile presence of those
644 SUPREME COURT REPPRTS [1981) 1 S.C.R.

A who would recognise his voice, to enable him to lead evidence through
·them that the voice recorded on the tapes was not his as also to let
him know on whose final satisfaction the order of detention was made.
This letter though originally dated 14th June, 1980 was not despatched
to the Deputy Secretary until 1st July, 1980 because in the meanwhile
the detenu had been taken to Bombay and it was only after his return
B to Nasik Road Central Prison that the letter could be desoatched
through the jailor and hence the date was altered to 1st Jul;, 1980.
It appears that this letter was received by the Deputy Secretary on
8th July, 1980. But, prior to his forwarding the letter dated 1st July,
1980 to the Deputy Secretary, the detenu addressed another representa-
tion dated 26th June, 1980 to the Chairman of the Advisory Beard,
c the Central Government and the Deputy Secretary to the Government
of Maharashtra praying for re-vocation of the order of detention. The
1
detenu pointed out in this representation that, by his letters dated 5th,
6th and 14th June, 1980, he had requested for the tapes to be supplied
to him to enable him to prove that the voice recorded on the tapes
was not his and that this request had not been complied with and,
D
in the circumstances, the hearing of the case before the Advisory
.Board would be futile. "fl1e detenu also complained in the representa-
tion that though he had asked for copies of the documents and
statements relied upon in the grounds of detention, they had not been
supplied to him. This representation containing the prayer for
E revocation of the order of detention was received by the Deputy
Secretary on 30th June, 1980. Now it appears that copies of the
statements and documents relied upon in the grounds of detention
were forwarded by the Deputy Secretary to the Superintendent of
Nasik Road Central Prison by registered letter dated 3rd J,uly 1980
and these copies were handed over to the detenu on 1lth July 1980.
F Mean while, one Vikraman Investigating officer of the Customs
Department was deputed to the Nasik Road Central Prison alongwith
the tapes and the tapes were played in the presence of the detenu and
the Deputy Superintendent of Nasik Road Central Prison on 8th July
1980. The representations of the detenu dated 9th June, 1980 and
26th June, 1980 were then considered by the Under Secretary on
G 11th July, 1980 and since in the mean time the letter dated 1st July
1980 requesting for supply of one accurate copy of the tapes was
received by the Government, the Under Secr~tary suggested, with
reference to this request that "since the tapes were given to the detenu
for inspection and played before him, the request for supply of copies
of the tapes may have to be rejected" and he also recommended that
H the request of the detenu for revocation of the order of detention may
be rejected. The Deputy Secretary approved the noting of the Under
Secretary that the request for .revocation of the detention order may
fl)

· ICHHU DEVI v. UNION (Bhagwati, J.)
/
·ve rejected and the file was immediately put up before the Secretary. A
-·<?n the same day. and the secretary also ap?roved the pro~sal for
Tejecting the request for revocation of the order of detention but,
recommended that the Customs Department must give to the detenu ,
·the transcripts of the tapes, as otherwise he would take a stand in the .
·Court that his defence was prejudiced. It appears that the Chief
Minister endorsed the noting of the Secretary on·. 14th July 1980. B
·pursuant to this decision of the Government, a Jetter dated 15th July
1980. was addressed to -the detenu rejecting his representations and.
-declining to revoke the order of detention. It is difficult to appreciate·
-what purpose could possibly be intended to be served by giving copies
, of the tapes to the detenu after rejecting his representations, but all
·the same, copies of the tapes were handed over to the detenu on
c
20th July, 1980. The detenu's mother in the mean while preferred
·the present petition in this Court and on 10th July, 1980 rule nisi was
issued on the petition by this Court.

There were several grounds on which .the detention of the detenu
D
-was challenged in the petition. But it is not necessary to refer to all
the grounds. since there is one ground· which is, in our opinion, fatal
to the continued detention of the detenu and it will be sufficient if
!we confine our attention to that ground. The contention of the
peitioner under the ground was that though several statements and
documents were relied upon in the grounds of detention and consi-
E
··derable reliance was also placed on two tape recorded conversations
'in the grounds of detention, the detafuing authority did not serve on
the detenu 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 detenue as
required by sub-section (3) of section 3 of the COFEPOSA Act and F
-clause (5) of Article 22 of the Constitution. The petitioner urged that
.· s_ub-section (3) of section 3 of the 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, G
all statements and documents relied upon in the grounds of detention,
becau~ these latter .would also form part· of such grounds.· It was
also contended by the petitioner in the alternative that; in any event,
. the detaining authority \vas bound to give copies of the statements,
· documents and tapes relied upon in the grounds of detention to the
. deienu without aily avoidable delay in order that the detenu should H
have the earliest opportunity of making an effe~tive representation
cagainst the order of detention; .· The argument of the petitioner was
SUPREME ·COURT REPOllTS [1981] 1 S.C.R_

A that, in the present case. though the detenu asked for the copies of
statements, documents and material relied upon in the grounds of
detention as early as 6th June, 198(}, the detaining authority did not
suppiy copies of such statements, documents and materials until 11th
Jtily, 1980 and on that day also, what were supplied were merely copies
of the statements and documents and not the copies of the tapes which
B were supplied only on 20th July 1980. This delay in supplying copies
of the statements, documents and tapes was, in the submission of the
j>etitioner wholly unjustified and the detenu was thus denied the
earliest ·Opportunity of making an effective representation and this
infected the continued detention of the detenu with the vice of illegality.
This ground of challenge urged on behalf of the petitioner appeared
c to us to be well founded and that is why, by an order dated 8th August
1980 made immediately on the conclusion of the arguments, we allowed
the petition and directed that the detenue be set at liberty forthwith.
We now proceed to give our reasons for making that Order. We may
point out straightway that we are not at all happy at the thought that
our order may have resulted in setting free a possible smuggler. We
D
are not unmindful of the fact that the COFEPOSA Act has been
enacted for the purpose of eradicating the evil of smuggling which is
eating into the vitals of the nation like a cancerous growth and eroding
the economic stability of the country and when an order is made by
the Court releasing· a person detained under this Act, it is quite possible
E that the effect of the order may be to Jet loose on the society, a
smuggler who might in all probability, resume his nefarious activities
causing incalculable mischief and harm to the economy of the nation.
But at the same time we cannot forget that the power of preventive
detention is a draconian power justified only in the interest of public
security and order ancf it is tolerated in a free society only as a necessary
F evil. The power to detain without trial is an extraordinary power
constituting encroachment on personal liberty and it is the solemn
duty of the Courts to ensure that this power is exercised strictly in
accordance with the requirements of the Constitution and the law.
The courts should always lean in favour of upholding personal liberty,
for it is one of the most cherished values of mankind. Without it
G life would not be worth living. It is one of the pillars of free democratic.
society. Men h.ave rightly laid down their lives at its altar in order
to secure it, pr9tect it and preserve it. The Constitution has therefore,
while conceding the power of preventive detention, provided procedural
safeguards with a view to protecting the citizen against arbitrary an<I
unjustified invasion of personal liberty and the courts have always.
H zealously tried to uphold and enforce these safeguards. This Court
has also through its judi'cial pronouncements created various legal
bulwarks and breakwaters into the vast powers conferred on· the·
ICHHU DEVI v. UNION (Bhagwati, J.) 647

executive by the laws of preventive· detention prevalent at different A
points' o{ time. It is true that sometimes even a smuggler n'.iay be
able to secure his release from detention if one of the safeguards or
requirements laid down. by the Constitution or the law has riot beeri
observed by the detaining authority but that can be no reason for
whittling do..yn or diluting the ·safeguards· provided by the
Constitution and the law. If the detaining authodty wants to preven-
tively detain a smuggler, it can certainly 'do so, but only in accordance
with the provisions of the Constitution and the law and if there is a
breach of any such provision, the rule of law requires that the detenu
mus.t be set at liberty, however wicked or mischievous he may be .
•The iaw cannot be subverted, particularly in the area of personal
liberty, in order to prevent a smuggler from securing his release from
c
detention, because whatever is the law laid down by the courts in the
case of a smuggler' would be equally applicable in the case of preven-
tive detention under any other law. This Court would be laying down a
dangerous precedent if it allows a hard c.ase to make bad_ law.. We
must, therefore, interpret the provisions of the Constitution and .the D
Jaw in regard to preventive detention without being in any manner
trammelled by the fact that this is a case where. a possible smuggler
is seeking his release from detention.

It is also necessary to point out that in case of an application
for a writ of habeas corpus, the practice evolved by this Court is not E
to follow strict rules of pleading nor place undue emphasis on the
question as to on whom the burden of proof lies. Even a postcard
· written by a detenu from jail has been sufficient to activise this Court
into examining the legality of detention. This Court has consistently
shown great anxiety for perSGnal liberty and refused to throw out a
petition merely .on the ground that it does not disclose a prima facie F
case invalidating the order of detention. Whenever a petition for a
writ of habeas corpus has come up before this Court, it has almost
invariably issued a ~ule calling upon the detaining authority to justify
the detention. This Court has on many occasions pointed out that
wheri a rule is issued, it is incumbent on the detaining authority to
satisfy the court that· the detention of the petitioner is legal and in G
conformity with the mandatory provisions of the ·raw authorising such
detention : Vide Narilnjan Singh v. Stat~ of Madhya Pr~desh( 1 ); Sheikh
Hanif, Gudma Majhi & Kamill Saha v. State of West Benga/(2), and
Dula! Roy v. The District Magistrate, Burdwaa & Ors(l). It has also

(1) AIR 1971 SC 2215. H
(~) [1974] 2 SCR 258.
(3) [1975] 3 SCR 186.
64 8 SUPREME COURT RE.PORTS [1981] 1 S.C.R.
A been insisted by this Court that, in answer to this rule, the detaining
authority must place all the relevant facts before the court which
would show tha!t the detention is in accordance with the provisions of
the Act. It would be no argument on the part of the detaining
authority to say that a particular ground is not taken in the petition.
Vide Nazamuddin v. The State of West Bengal(!). Once the nile is
B issued it is the bounden duty of the Court to satisfy itself that all the
safeguards provided by the law have been scrupulously observed and
the ci.tizen is not deprived of his personal liberty otherwise than in
accordance with law. Vide Mohd. Alam v. State of West Bengal(2)
and Khudiram Das v. State of West Bengal & Ors(3).
c This practice marks a departure from that obtaining in England
where observance 6f the strict rules of pleading is insisted upon even
in case of an application for a writ of habeas corpus, but it has
been adopt€d by this Court in view of the peculiar socio-economic
conditions prevailing in the country. Where large masses of people
are poor, illiterate an.d ignorant and access to the courts is not easy
.D on account of lack of financial resources, it would be most unreasonable
to insist that the petitioner should sec out dearly and specifically
the grounds on which he challenges the order of detention and make
out a prima facie case in support of those grounds before a rule is
issued or to ·hold that the detaining authority should not be liable to
do anything more than just meet the specific grounds of challenge
E put forward by the petitioner in the petition. The burden of showing
that the detention is in accordance with the procedure established by
law has always been placed by this Court on the detaining authority
because Article 21 of the Constitution provides in clear and explicit
terms that no one shall be deprived of his life or personal liberty
except in accordance with procedure established by law. This constitu-
F
tional right of life and personal liberty is placed on such a high
pedestal by this Court that it has always insisted tha( whenever there
is any deprivation of life or personal liberty, the authority responsible
for such deprivation must satisfy the court that it has acted in accord·
ance with the law. This is an area where the court has been most
G strict and scrupulous in ensuring observance with the requirements of
the law, and even where a requirement of the law is breached in the
slightest measure, the court has not hesitated to strike down the order
of detention or to direct the release of the detenue even though the
detention may have been valid till the breach occurred. The court
has always regarded personal liberty as the most precious possession
H (!) [1975] 2 SCR 593.
(2) [1974] 3 SCR 379.
(3) [1975] 2 SCR 832.
ICHHU DEVI v. UNION (Bhagwati, J.) 64 9

of mankind and refused to tolerate illegal detention, regardless of the A
social cost involved in the release of a possible renegade:
We must therefore now proceed to examine whether there was
any breach of the requirements of Article 22 clause (5) of the Constitu·
tion and Section 3, sub-section (3) of the COFEPOSA Act, for that
is the breach which is claimed by the petitioner as invalidating the
B·
continued detention of the detenue. Clause (5) of Article 22 of the
Constitution reads as follows :
"Art. 22(5) : When any person is detained in pursuance of
an order made under any law providing for preventive detention,
the authority making the order shall, as soon as may be, communi-
cate to such person the grounds on which the order has been .C
made and shall afford him the earliest opport.unity.. of making a
representation against the order."
Section 3, sub-section of the COFEPOSA Act provides as under :
"For the purposes of clause (5) of Article 22 of the Constitu-
tion, the. communication to a person detained in pursuance of
D·
a detention order, of the grounds on which the order has been
made shall be made, as soon as may be,· after the detention,
but 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." E.
The true meaning and import of clause (5) of Article 22 of the
Constitution was explained by this Court in Khudiram Das v. State
of West Bengal (supra) :
"The constitutional imperatives enacted in this article are
two-fold: (1) the detaining authority must, as soon as may be,
F
that. is, as soon as practicable after· the detention, communicate
to the detenue the grounds on which the order of dete:µtion has
been made, and (2) the· detaining authority must afford the detenue
the · earliest opportunity of making a representation against the
order of detention. These are the barest rllinimum safeguards
which must be observed before an executive authority can be
permitted to preventively detain a person and thereby drown his
right of personal liberty in the name of public good .and social
security."
It will be seen that one of the basic requirements of clause (5) of
Article 22 is that the authority making 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 ff
section 3 of the COFEPOSA Act, the words "as soon as may be"
650 SUPREME COURT REFORTS [1981] 1 S.C.R

A 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 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
B furnishing the grounds of detention may stand extended but in ariy
event it cannot be later than fifteen days from the date of detention.
These ~re the two outside time limit8 provided by section 3, ~ub
section (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 detention and it is a
·C basic requirement of clause' (5). of Article 22 !that the detenu must be
afforded 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
D
of requirement of section 3, sub-section (3) of the COFEPOSA Act.
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 communicated to the detenu within five or
fifteen days, as the case may be, what is meant is that the grounds of
E 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 fa 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
F sufficient to communicate to the detenu a bare recital of the grounds
I of detention, but copies of the documents, statements and other
materials relied upon in the grounds of detention must also be furnished
to the detenu 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
G of the primary objects of communicating the grounds of detention 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
H 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
1cinru DEVI v. UNION (Bhagwati, J.) 651

Article 22 copies of the doci.iments. statemeDJts and other materials
· ~elied upon in the grounds of detention should be ·furnished to the
·detenu alongwith 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 fifteen. ·days from the date of
detention. If this requirement ofdause (5) ofArticle 22 read with
section 3, sub-section (3). is not satisfied the. continued detention of B
the detenu would be illegal and void:
Now, in the p.reserit case, the grounds of .detention were served
upon the detenu on 4th June, J980 at the time when he was taken
under detention, but these grounds which were s€rved upon the detenu
did not include· the documeµts, statements and other materials relied
upon in the grounds and. forming part of them. The detenu, therefore,
c
by his letter dated 6th June, 1980, requested the Deputy Secretary to
send at his earliest "all statements, docwnents, materials" relied· upon
in the grounds of deteniion in· order to enable him to maJrn an effective
representation against his detention. But copies of these documents,
statements and other materials were not supplied to the detenu pntil D
11th July, 1980 and so far as the tapes were concerned, their copies
were furnished to the detenu even later on 20th July, 1980. It is clear
from the discussion in the. preceding paragraph that under clause (5)
of Article 22 read with section 3, sub-section (3) of the COFEPOSA
Act, the detaining authority was bound to supply copies of the docu-
ments, stat~ments and other materials relied upon in the grounds of E
detention to the detenu .within five days from the date of detention.
that is, on or before 9th June, 1980 and .in any ·event, even if we
assume that there were exceptional circumstances and reasons for not
supplying suc~copies within five days were recorded in writing, such
copies ~hould nave been supplied to the detenu not later than fifteen
.days from the date of detention, that is, on or before 19th June, 1980. F
It was, of course, not the case of the detairiing authority before us
that reasons for not supplying copies of the documents, statements and
other materials to the detenu within five days were recorded in writing
nor were any such reas~ns produced before tis, but even if
there were any su~h reasons. recorded in writing, coupled with the
existence of exceptional circumstances, the detaining authority, could G
not delay the supply of copies of the documents. statements and other
materials to the detenu beyond 19th June,. 1980. Even "if there were
any circumstances justifying the delay in supply of copies of documents,
statements and other materials beyond 19th June, 1980. it would
afford no defence to the detaining authority, for clause (5) of Article
22 read with section 3, sub-section (3) of the COFEPOSA .Act lays H
· down an inexorable rule of law that the grounds of detention shall
be ,communicated to the detenu not later than fifteen days fmm the

)1.
652 SUPREME COURT REPORTS [1981] 1 S.C.R-

• A date of detention. There are no exceptions or qualifications provided
to this rule which operates in all its rigour and strictness and if there
is any breach of this rule, it must have the effect of invalidating the
continued detention of the detenu. There can therefore be no doubt
that, in the present case, the continuance of the detention of the detenu
after 19th June, 1980 was unconstitutional and it was not open to the
B detaining authority to seek to justify the continued detention on the
ground that there were sufficiently compelling reasons which prevented
it from supplying copies of the documents, statements and other
materials to the detenu until 1lth July, 1980 and copies of the tapes
until 20th July, 1980.

c It may be pointed out that even if our interpretation of the words
"the grounds on which the order has been made" in clause (5) of Article
22 and section 3 sub-section (3) of the COFEPOSA Act be wrong
and ihese words do not include the documents, statements and other
materials relied upon in the grounds of detention, it is unquestionable
that copies of such documents, statements and other materials must
be supplied to the detenu without any unreasonable delay, because
' D
otherwise the detenu wouid not be able to make an effective representa-
tion and the fundamental right conferred on him to be afforded the
earliest opportunity of making a representation againsit his detention
would be denied to him. The right to be supplied copies of the
documents, statements and other materials relied upon in the grounds
E of detention without any undue delay flows directly as a necessary
corollary frojll the right conferred on the detenu to be afforded the
earliest opportunity of making a representation against the detention,
because unless the former right is available, the later cannot be meaning-
fully exercised. This would seem to be clear on a fair interpretation
of clause (5) of Article 22 but apart. from this view which we are
F inclined to take on principle as a matter of interpretation, the law is
now well settled as a result of several decisions of this Court
commencing from Ramachandra A. Kamat. v. Union of India( 1) that~
"When the grounds of detention are served on the detenu, he is
entitled to ask for copies of statements and documents referred to in
the grounds of detention to enable him to make an effective representa-
G tion. When the detenu makes a request for such documents, they
should be supplied to him expeditiously ...... when copies of such
documents are asked for by the detenu, the detaining authority should
be in a position to supply them with reasonable expedition .. What is
reasonable expedition will depend on the facts of each case."
H The facts as we find them here are that the detenu asked for
copies of the documents, statements and other materials relied upon
(1) [1980] 2 sco 270.
ICHHU DEVI v.. UNION (Bhagwati, J.) 653

in the grounds of detention by his letters dated 6th June, 1980 and 9th A
June. 1980 and he also complained about non-supply of such copies
in his representation dated 26th June, 1980 but it was only on 11th
July, 1980 that such copies were supplied to him and even then the
copies of the tapes were not furnished until 20th July, 1980. There
was thus a delay of more than one mpnth in supply of copies of the
documents, statements and other materials to the detenu. The burden B
of satisfactorily explaining this delay and showing that there was
sufficient cause for it was on the detaining authorilty and an attempt was
made by the detaining authority to discharge this burden by filing
an affidavit made by C.R. Mulherkar, Deputy Secretary to the
Government of Maharashtra. It was stated in this affidavit that the
letter of the detenu dated 6th June, 1980 requesting for copies of c
the documents, statements and other materials relied upon in the
grounds of detention was received in the Home Department on 10th
June, 1980 and on receipt, this letter was forwarded to the Asstt.
Collector of Customs for his remarks on 12th J'une 1980. The
Assistant Collecto!," of Customs forwarded his remarks to the Deputy
D
Secretary on 24th June, 1980 alongwith one set of copies of documents
and statements relied upon in the grounds of detention and these were
received by the Deputy Secretary in the Home Department on 27th June
1980. The next two days, namely 28th and 2~th June, 1980 were holidays
and on 2nd July 1980 the State Government took a decision to
supply these copies to the detenu and they were forwarded to the E
detenu through the Superintendent of Nasik Road Central Prison
alongwith a registered letter dated 3rd July 1980 which, for some
inexplicable reason was not received by the Superintendent until 1Oth
July 1980, and hence it was said these copies could not be delivered
to the detenu until 11th July 1980. This' was the explanation offered
by the detaining authority for the delay in supplying copies of the F
documents, statements and other materials to the detenu but we do
not think this explanation can be accepted by us as satisfactory. It
is clear from the facts narrated above that though the Assistant
Collector of Customs received the letter of the detenu forwarded by
the Deputy Secretary on 12th June 1980, he did not respond to it
until 24th June 1980 and this delay of 12 days has not been satisfac- G
torily explained either in the affidavit of C.R. Mulherkar or in any
affidavit filed by the Assistant Collector of Customs. It was urged
before us that the documents and statements of which copies were
requested by the detenu ran into 89 pages and it was· therefore
reasonable to assume that a few days must have been taken in the
Customs Department to make copies of these documents and statements H
and hence the time of 12 days taken up by the Assistant Collector
of Customs in sending copies of the documents and statements to the
21-647 S.C. India/_80
6 54 SUPREME COURT REPORTS [1981] 1 S.C.R.

A Deputy Secretary could not be said to be unreasonable. This argument
is patently unsound, because the Assistant Collector of Customs
ought to have kept ready with him copies of the documents, statements
and other materials relied upon in the grounds of detention since it
should have been anticipated that these copies would have to be
supplied to the detenu in order. to enable him to make an effective
B representation against his detention and it does not lie in the mouth
of the Assistant Collector of Customs to say that his department
started making copies for the first time when a request for copies was
made by the detenu. In fact, copies of the documents, statements
and other materials relied upon in the grounds of detention should
have been available ·with the detaining authority itself so that they
c could be supplied to the detenu immediately as soon as. a request wa~
made in that behalf. Of course, our view is, and that is what we have
said in the earlier part of the judgment, that copies of the documents,
statements and other materials relied upon in the grounds of detention
from part of such grounds and they have to be supplied to the detenu
D within the time limited under clause (5) of Article 22 and section 3
sub-section (3) of COFEPOSA Act, but even if that be not the correct
view, there is little doubt that copies of these documents. statements
and other materials should be available with the detaining authority
and they should be supplied without unreasonable delay as soon as
the detenu makes a request for the same. The time of 12 days taken
E up by the Assistant Collector of Customs was therefore unreasonably
long for which no explanation at all was forthcoming from the
d.:taining authority. We must in the circumstances hold that there
wag unreasonable delay on the part of the detaining authority iu
supplying to the detenu copies of the documents, statements and other
materials relied upon in the grounds of detention and the continued
F detention of the detenu was accordingly illegal and void and the detenu
was entitled to be released forthwith from detention.
It is also necessary to point out that there was unreasonable delay
in considering the representations of the detenu dated 9th June 1980
and 26th June 1980. It is·now settled law that on a proper interpreta-
tion of clause (5) of Article 22, the detaining authority is under a cons-
G titutional obligation to consider the representation of the detenu as early
as possible, and if there is unreason.able delay in considering such
representation, it would have the effect of invalidating the detention
of the detenu. Vide: V. !. Jain v. Pradhan( 1) Here in the present
case the representation of the detenu dated 9th June 1980 was received
by the Deputy Secretary on 14th June 1980 while the representation
H dated 26th June 1980 was received on 30th June 1980 and yet no
decision was taken on these representation of the detenu until 14th
(1) [19791 4 sec 401.
ICHHU DEVI v. UNION (Bhagwati, J.) 655

July 1980. The question is whether this delay could be said to have A
been reasonably explained by the detaining authority. The representa-
tion of the detenu dated 9th June 1980 was received in the Mantralaya
on 14th June 1980 but that day and the next day being holidays, it
<:ame to the hands of the concerned officer only on 16th J'une 1980,
and a copy of it was forwarded to the Assistant Collector of Customs
for his remarks on 23rd June 1980. It is difficult to see why the B
concerned officer in the Mantralaya should have taken seven days
for just forwarding a copy of the representation of the detenu to the
Assistant Collector of Customs. There is no explanation at all for
this 'delay in any of the affidavits filed' on behalf of the1 detaining
authority. The Collector of Customs thereafter forwarded his remarks
on 30th June 1980 and here again there was a delay of seven days
c
for which no explanation is forthcoming. The remarks of the Assistant
Collector of Customs were received by the concerned officer on 2nd
July i 980 and there after ,the .representation started on its upward
journey from the Undersecretary to the Chief Minister. It appears
that by this time the second representation of the detenu dated 26th D
June 1980 was also received by the State Government and hence this
representation was also subjected to the same process as the representa-
tion dated 9th June, 1980. It was only on 11th July 1980 that these
two representations dated 9th June 1980 and 26th June 1980 came
to be considered by the Under Secretary qnd he made a noting on the
file recommending that the request of the detenu for revocation of E
the order of detention may be rejected, and this noting was approved
by the Deputy Secretary as we:ll as the Secretary on the same day and
the Chief Minister endorsed it on 14th July 1980. iit is indeed difficult
to see how these two representations of the detenu could be rejected
by the detaining authority when the request of the detenu for copies
of the tapes was pending and the Secretary to the State Government F
in fact made a noting on 11th Jluly 1980 that the copies of the tapes
must be given to the detenu by the Customs Department. But even
if we take the view that it was not necessary for the detaining authority
to wait until after the copies of the tapes were supplied to the detenu,
it is difficult to resist the conclusion that the detaining authority was
guilty of unreasonable delay in considering the two representations of G
( the detenu, and particularly the representation dated 9th June 1980.
This ground is also in our opinion sufficient to invalidate the continued
detention of the detenu. · ·

These were the reasons for which we allowed the writ petition and
directed immediate release of the detenu from detention. We may H
point out that we have not pronounced upon the validity of the order
of detention but merely held the continued detention of the detenu
656 SUPREME COURT REPORTS [1981] 1 S.C.R.

A to be illegal on the ground of non-compliance with the requirements
of clause (5) of Article 22 and sub-section (3) of section 3 of the
COFEPOSA Act, and therefore nothing that is said by us iii this
judgment should be considered as an expression of opinion on the
validity or correctness of the order of detention as made. We are
unable to appreciate as to why the Customs Department has not yet
B filed a charge sheet against the detenu for prosecuting him in respect
of the incidents referred to in the grounds of detention even though
more than six months have passed since then. If the investigation
reveals that the detenu was responsible for smuggling or abetting the
smuggling of goods in contravention of law, the Customs officers should -'
adopt criminal proceedings against the detenu as quickly as possible
c and try to bring him to book in the criminal courts. We hope and
trust that there will be no unreasonable delay on the part of the
Customs officers in completing the investigation of the cases against
the detenu and prosecuting him in the criminal courts if the evidence
gathered by them in the course of the investigation justifies such a
course.
D

N.V.K. Petition allowed.

' I