Holding

The continued detention is void as the safeguards of Article 22(5) were not complied with.

Summary

The petitioner, K. K. Khushalani, was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 20‑10‑1980. Although the grounds of detention were served, the documents and materials on which the order relied were supplied only on 05‑11‑1980, and the detenu's representation filed on 18‑11‑1980 was disposed of on 15‑12‑1980, a delay of about 25 days. The petition under Article 32 alleged that the failure to provide the documents and the unexplained delay violated the safeguards of Article 22(5) of the Constitution, rendering the detention illegal. The Supreme Court held that for an "effective representation" the detenu must be furnished with all documents forming the basis of the grounds, and any unexplained delay in disposing the representation vitiates the order. Consequently, the Court declared the continued detention void and ordered the immediate release of the detenu.

Issues considered

Whether the failure to supply the documents and materials forming the basis of the detention order violates Article 22(5) of the Constitution.
Whether the unexplained delay of 25 days in disposing the detenu's representation renders the detention order void.
Whether the procedural requirements under Section 3(3) of the COFEPOSA Act have been complied with.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(3)
Constitution of Indias. Article 21, s. Article 22(5)

Subjects

preventive detentionArticle 22(5)effective representationCOFEPOSAprocedural safeguardsdetention order voidconstitutional law

Judgment

459

• KAMLA KANAHlYALAL KHUSHALANI A
v.
STATE OF MAHARASHTRA AND ANR.
January 6, 1981
[S, MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.] 8

Conservation of Foreign Exchange and Prevention of S1nuggling Activities
Act, 1974-Scction 3(3)-Failure to 1upply docu11if!1t/s and rnatcrials to the
d1.:ft'11u-Efiect of-"cffective representation"-Meani11g of.
In a petition under· Art. 32 of the Constitution the petitioner detenu com·
-plained that though the grounds of detention were served on the dctenu on the C
date of arrest (October 20, 1980) the materials and documents on which the
order of detention was based were not supplied to him till November 5, 1980
and that his representation dated November 18, 1980 was disposed of nearly
a month later (December 15, 1980) and that the failure on the part of the detain-
ing authority to supply the requisite documents and materials and the un-
explained delay in the disposal of the representation constituted violation of
the safeguards contained in Art, 22(5) of the Constitntion which vitiated the D
.order of detention.
Allowing the petition,
HELD': I~ is well settled that the law of preventive detention has to
<atisfy a two-fold test : ( 1) that the protection and the guarantee afforded
under Art. 22(5) of the Constitution are complied with, and (2) that the pro-
cedure ifl just and reasonable. (4630] E
Before an "effective representation" could be made by the detenu he must
be supplied with the documents and materials which form the basis of the
grounds of detention and unless this is done there could be no question of
making any representation, much less an "effective representation" against the
order of detention. The documents and materials relied upon in the order
,,-- of detention form an integral part of the grounds and must be·supplied to the F
."' detenu pari passu the grounds of detention. [461B]
Smt. lcc/zu Devi Clzoraria v. Union of India & Ors. (1980] 4 SCC 531
and Srnt. Slwlini Soni & Ors. v. Union of India & Ors. [1980] 4 SCC 544
referred to.
If procedure under Art. 21 has to be reasonable, fair and just, then the
words 'effective representation' appearing in Art. 22(5) must be construed so G
aa to provide a real and meaningful opportunity to the detenu to explain his
case to the detaining authority in his representation. If the words 'effective
representation' are interpreted in an artificial or fanciful manner, then it would
defeat the very object not only of Art. 22(5) but also of Art. 21 of the Consti-
tution. It is settled law that it is of the utmost importance that all the necea-
sary safeguards laid down by the Constitntion under Art. 21 or Art. 22(5)
should be complied with fully and strictly and any departure from any of the H
<afeguards would vitiate the order of detention. [463E-F]
Maneka Gandhi v. Union of India [1978] 2 SCR 621 referred to.
460 SUPREME COURT REPORTS [1981] 2 S.C.R.
..
A In tho intant caso not only were the documents and materials not supplied
to the detenu alongwith the order of detention but there ha4 been an un,explain· •
ed delay of about 25 days ill disposing of tho repre.entatlon of tho detenu.
'[4658)

[Despite repeated warnings by this Court the detaining authorities do not
care to comply with tho spirit and tenor of the safeguards contained in Art,
B 22(5) of tho Constitution. There should be no difficulty in keeping copies of
tho documents and materials referred to in tho order of detention and supply-
ing them to tho detenu along with tho order of detention. This dereliction on
the part of the detaining authorities results in the relea')e of persons indulgi11g
in such anti~national activities as smuggling though on merits the deto.tions
in suitable cases may bo justified.]

c
ORIGINAL JURISDICTION : Writ Petition No. 5873 of 19.80.
(Under Article 32 of the Constitution.)
Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
O. P. Rana and M. N. Shroff for the Respondents.
D
The Judgment of the Court was delivered by
FAZAL ALI, J.-This petition has been filed by the sister of the
detcnu praying that the detenu be released because the safeguards pro·
vidcd by tl:!e constitution hav·~ not been complied with. The detcnu-
E was arrested on 20-10-1980 when only the grounds of detention were
served on him. On 5-11-1980 the documents and materials on the
basis of which the order of detention was passed were supplied to the
detenu. On the 18th November 1980, the detenu made a represen-
tation to the Government which was disposed of as late as the 15th
December 19.80. In support of the petition, Mr. Jethmalani has sub·
F mitted two points on which alone, in our opinion, the petition must .
succeed.
In the first place, it was pointed out that, as already held by this
Court the grounds served on the petitioner "'.ere not 11ccompanicd by
the documents and materials which formed the basis of the order of
detention, hence·the safeguards contained in Art. 22(5) of the Consti-
G
tution not having been complied with, the continued detention of the .
detcnu became void. Secondly, it was argued that even though the
detenu had m11de a represeptation on 18-11-1980, the same was dis-
posed of a month thereafter and no explanation for this delay has been
furnished by the respondents. This Court has held in numerous cases
II that the representations of the detenu should b~ disposed of as soon
as possible and even an unexplained del'ay of 12 to 14 days has been
heW to be fatal to the order of detention. Reliance has been placed
K. K. KHUSHALANI v. MAHARASHTRA (Fazal Ali, I.) 461

by Mr. Jethmalani on two decisions of this Court in Smt. lcchu Devi
Choraria v. Union of India & Ors.(I) which was later followed in Smt.
Shali11i Soni &. Ors. v. Union of India & Ors.('). As regards the
tirst case, which is a decision of two Judges of this Court. it has clearly
held that before an effective representation can be made by the detenu.
he must be supplied with the documents and materials which formed
the basis of the grounds of detention. Unless this is done, there could
be no question of making any representation, much less an effective
representation, against the order of detention. In this connection,
Bhagwati J., speaking for the Court observed as follows : -

"Now it is obvious that when clause (5) of Article 22 c
and sub-section (3) of section 3 of the COFEPOSA Act
provide that the grounds of detention should be communi-
• cated 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 ~ny documents, statements or other materials relied upon o·
in the grounds of detention, they must also be communicat-
ed to the detcnu, 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 coqiplete with-
out them. It would not therefore be sufficient to communi-
cate to the detenu a bare recital of the grounds of deten- E
tion, but copies of the documents, statements and other
materials relied upon in the groUJ)ds of detention must also
be furnished to the dctenu within the prescribed time subject
of course to clause (6) of Article 22 in order to constitute
compliance with clause ( 5) of Article 22 and Section 3,
sub-section (3) of the COFEPOSA Act. One of the F
primary objects of communicating the grounds of detention
to the detenu is to enable the dctenu, at the earliest oppor-
tunity, to make a representation against his detention and
it is difficult to see how the detenu can possibly make an
effective representatioi:i unless he is also furnished copies
G
of the documents, statements and other nraterials relied upon
in the grounds of detention. There can t}Jereforc be no
doubt that on a proper construction of clause ( 5) of Anick
22 read with Section 3, sub-section (3) _of the COFEPOSA
Act, it is necessary for the valid continuance of detention
that subject to clause (6) o[ Article 22 copies of the
(I) [1980J 4 sec 531 [19s111 scR64o
(2) [I 930J 4 sec 544

--·,,-~......, ,, ... __ ._,,, __ -.--·-··
_ __,_ "~,,--.-~
462 SUPREME COURT REPORTS [1981] 2 S.C.R.

A documents, statements and other materials relied upon in the
· grounds of detention shoul.d be furnished to the detenu along
with the grounds of detention or in any event not later than five
days and in exceptional circumstances and for reasons to be
recorde<) in writing, not later than fifteen days from the date
of deteution. 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."

Mr. Rana for the St•ate has submitted that the observations extract-
ed above do not form the ratio of the decision because in a subs~qaent
c para of the decision, Bhagwati, J. had observed that at the most grounds
could be given within a period of five to fifteen days of the order of
detention. These observations, no doubt, are con~ained in parngraph>
7 and 8 of the judgment but they do not, in our opiuion, form the ratio
decidendi of this case but were made merely to rebut the extreme argu-
n ments that could be put forward. This Court made it very clear that
even apart from the interpretation placed by the Court on Art. 22(5)
of the Constitution, the conclusion is inescavable that the documents
and statements which formed the basis of the grounds of detention must
be supplied to the detenu without least possible delay. It is in this
context that these observations were made in paragraphs 7 and 8.
E Moreover, this position has been made absolutely clear by a letcr ded-
sion of this Court in Smt. Shalini Soni's case (supra) where a Division
Bench of this Court while endorsing Smt. Tcchu Devi's case observed
as follows : -
"The matter may aJso be looked at from the point nf view
of the second facet of Article 22(5). An opportunity to
make a representation against the order of detention neces-
sarily implies that the detenu is informed of all that has been
taken into account against him in arriving at the decision to
detain him. It means that the detenu is to be informed not
merely, as we said, of the inferences of fact but of all the fac-
tual material which have led to the inferences of fact. If +
the detenn is not to be so informed the opportunity so
solemnly guaranteed by the Constitution becomes reduced to
an exercise in futility. Whatever angle from which the
question is looked at, it is clear that 'grounds' in Article
22(5) do not mean mere factual inferences but me-an factual
inferences plus factual material which led to such factual
inferences. The grounds must be self-sufficient and self-
cxplanatory. In our view copies of documents to which
K. K. KHUSHALANI v. MAHARASHTRA (Fazal Ali, J.) 463

·. reference is made in the 'grounds' must be supplied to the A
'cletenu· as part of the 'grounds'."
. :·· .
The Court, therefore, clearly held that the documents and materials
relied. ll'pOn in the order of detention formed an integral part of the
grounds and nrnst be supplied to the detenu pari passu tbc grounds of
defention. If the documents and materials are supplied later, then B
the detenu is deprived of an opportunity of making an effective repre-
sentation against the order of detention. In this case, the court relied
upon the ratio in _lcchu i/)evi Choraria's case (supra) extracted above.
We find ourselves in complete agreement with the view expressed by
the- 'two decisions of this Court and we are unable to accede to the
prayer of Mr. Rana for sending !he case for reconsideration to a larger
c
Bench. This Court has invariably laid down that before an order of
• detention can be supported, the constitutional safeguards must be
strictly observed. ·

This Court in Maneka Gandhi v. Union of India (') has widened D
the horizon of Art. 21 and added new dimensions to various features
of Md. concept of liberty enshrined in Art. 21. In view of the decision
in the aforesaid case, Art. 22(5) of the Constituticn assumes a new
complexion and has to be construed liberally and meaningfully so as
to permit the legislature to impose the minimum possible curbs on the
precious rights of a citizen, by virtue of preventive detention. If a E
procedure under Art. 21 has to be reasonable, fair and just, then the
words 'effective representation' appearing in Art. 22(5) must be con-
strued so as to provide a real and meaningful opportunity to detenu to
explain his case to the detaining authority in his representation. If the
words 'effective representation' are interpreted in an: artificial or fanciful
r manner, then it would defeat the very object not only of Art. 22(5) F
· but also of Art. 21 of the Constitution.

1 'Ilrus, we are of the opinion that in view of \\hat has been laid
down in Mankea Gandhi's case (supra) and in a number of other cases
following the aforesaid decision, the law of preventive detention has
G
now :to satisfy a twofold test : ( 1) that the protection and the guarantee
afforded under Art. 22(5) is complied with, and (2) that the procedure
is just:and reasonable. In this view of the matter unless the materials
and documents relied on in the order of detention are supplied to the
detenu alongwith the grounds, the supply of grounds simpliciter would
give him not a real but merely an illusory opportunity to make a reprc- H
~entation to the detaining authority.·

(I) [1978] 2 SCR 621
464 SUPREME COURT REPORTS [1981) 2 S.C.R,

A It is well settled that the Court frowns on preventive detention
without 'trial because the detenu is deprived of the right of proving his
innocence in 'a trial by a court of law. It is, therefore, of the utmost
importance that all the necessary safeguards laid down by the Consti-
tution under Art. 21 or Art. 22(5) should be complied with fully ruid
strictly and any departure from any of !Jle safeguards would void the
B order of detention. This is so be<:ausc in a civilised society, like ours,
liberty of a citizen is 'a highly precious right and a prized possession
and has to be protected unless it be<:omes absolutely essential to detain
a person in order to prevent him from indulging in ar.ti-national activi- ·~·
....
ties like smuggling, etc. We are fortified in' our view b;r a de.:ision of i
this Court in SampaJ Prakash v. State of !ammu & Kashmir(') where
c the following observations were made :
"that the restrictions placed on a person preventively
detained must, consistently with the effectivenese of <1etention,
be minimal."
D It is a matter of great concern and deep dismay that despite re-·
peatcd warnings by this Court, the detaining authorities do no.t care
to comply with the spirit and tenor of the constitutional safegir.irds
contained in Art. 22 ( 5) of the Constitution. It is manifest that when
the detaining authopty applies its mind to the documents and mate-
rials which form the basis of the detention, the same are indeed placed
E before it and there could be no difficulty in getting photostat copies of
the documents and materials, referred to in the order of detention,
prepared and attaching the same alongwith the grounds of detention, it
the detaining authority is really serious in passing a valid order of
detention. Unfortunately, the constitutional safeguards are nAlt com"
plied with, resulting in the orders of detention being set aside by the
Court, even though on merits they might have been justified iri suitable
cases. We feel that it is high time that the Government should impress
on the detaining authority the desirability of complying with the con-
stitutional safeguards as adumbrated by the principles laid down in
this regard. We would like to suggest that whenever a detention is
G struck down by the High Court or the Supreme Court, the detainilig
authority or the officers concerned who are associated with the prep:t- •
ration of the grounds of detention, must be held personally responsi-
ble and action should be taken against them for not complying with
the constitutional requirements and safeguards (viz. delay in disposing
of the representation, not supplying the documents and .materials
II relied upon in _the order of detention pari passu the order of detention,
etc. etc.) or, at any rate, an explanation from the authorities concern-
(!) [1969] 3 SCR 574
K. K. KHUSHALANI v. MAHARASHTRA (Fazal Ali, J.) 465

«:d must be called for by the Central Government so that in future A
persons against whom serious acts of smuggling are alleged, do not
~o scot free. In the instant case, not only were the documents and
materials not supplied along with the order of detention, but there has
hccn a delay of about 25 days in disposing of the represenfation of the
<l<'!cnu and no explanation for the same has been given. These lire
maucrs which must be closely examined by the Government. B

For the reasons given above, we hold tliat the continued detention
-<'f the detenu is void. We allow the petition and direct the detenu kl
. be released forthwith. A copy of this judgment be sent to the Home
Ministers of all the State Governments, Hon'ble the Home Minister of
the Government of India and also the Hon'ble Finance Minister, c
·Government of India for necessary action .

• IJ'.B.R. Petition allowed.