Holding

Unreasonable delay in furnishing the detained person with the documents on which the grounds of detention are based denies him the statutory opportunity to make a representation and renders the preventive detention illegal.

Summary

Pritam Nath Hoon was detained under Section 5(a) of the Conversion of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 after customs seized silver bars from him. While in custody he repeatedly requested copies of the statements and documents on which his detention was based so that he could make an effective representation before the Advisory Board. The authorities delayed for 32 days before furnishing the documents, causing the petitioner to file a writ petition under Article 32 alleging denial of the opportunity to make a representation. The Supreme Court held that the detaining authority is bound to provide such documents promptly and that unreasonable delay amounts to denial of the statutory right, rendering the detention illegal. Consequently, the petition was allowed and the petitioner was ordered to be released immediately.

Issues considered

Whether the failure of the detaining authority to supply the petitioner with copies of the documents forming the basis of his preventive detention within a reasonable time violates his right to make a representation.
Whether such procedural lapse vitiates the legality of the detention under the Conversion of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Legislation cited

Constitution of Indias. Article 32
Conversion of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 5(a)

Subjects

preventive detentionprocedural fairnessright to representationforeign exchange smugglingpersonal libertyArticle 32document supplydetention order

Judgment

682

A

PRITAM NATH HOON

v.
B
UNION OF INDIA & OTHERS
September 11, 1980
[V. R. KRISHNA IYER AND A. D. KoSHAL, JJ.]

Conservation of Foreign Exchange and Prevention of Smuggling Activities
c Act, 1974-Non-supply and also belated supply of documents vitiate the preven-
r
tive detention and entitled the release of the' detenu-Panchnamas do not givl!
'the detenu full notice of the case against him or furnish all the materials which
he needs- to make his representation-Guideline to detaining authority regarding
supply of documents.
Allowing the petition and ordering the release of the detenu forthwith, the
.D Court
HELD : (Per Koshal, J.) (I) It is now settled law that the detaining autho-
rity is bound to give an opportunity to the detenu to make a representation
'against his detention and also to consider the same as early as possible and
that any unreasonable delay in furnishing to the detenu copies of the docu-
ments which form the basis of the grounds of detention amounts to denial to
]~ him of such opportunity. [687-G.].
In the instant case there was a gap of 32 days (10th June to 11th July,
1980) which could very well have been cut short considerably if the authorities
concerned had acted with promptitude. Not even an attempt has been made
to explain why no attention was paid. to the demand for the supply of the
copies on the 10th, 1lth, 12th, 26th, 27th and 30th June and the first of
July, 1980. Further the procedure adopted by the Home Department in asking
the Assistant Collector of Customs to send his "necessary remarks" is unwarran-
ted. For one thing all the documents should have been available with a detain-
ing authority and. if their originals had been taken away by the Assistant
Collector of Customs, their copies should have been retained. in the Home
Department for being furnished. to the detenue on demand. Secondly, there
was no impediment in the way of the Home Department requiring, through
its Jetter dated 12th June 1980, the Assistant Collector of Customs to furnish
G the copies direct to the detenu at the Nasik Central Prison, Nasik. Thirc1Jy,
the reason for the delay of 4 days from tbe 7th July to the !Ith July 1980
cannot be accepted at its face value. The petitioner was in custody at the
Nasik Prison and there was no question of his being "in a hurry to go to
Bombay" and the document appears to have been withheld from the petitioner
right up to the 11th July, 1980. [686G-687C.].
H (2) Copies of the panchnama prepared at the time of recovery of silver
bags and supplied to the detenu in the instant case, cannot amount to giving
him full notice of the case or furnishing of all materials which he needed to
make his "representation. It was incumbent on the detaining authority to supply
PRITAM NATH v. UNION (Koshal, 1.) 683

icopies of those statements to the petitioner to enable him to make an effective A
representation and that is what was actually done on the 11th July, 1980 al·
·1hough it was too late then to be of any real use to the petitioner who had
already submitted his representation at the instance of the Advisory Board.
I687D-F].
(3) It is absolutely necessary for the detaining authority to chalk out for
themselves a procedure which ensures speedy and effective disposal of demands B
for documents forming ihe basis of the grouuds of detention orders paEsed
by them in future. The best course would be for the detaining authorities
to retain copies of all such documents while passing the order of deten·
'!ion itself to make them available to the detenu as soon as demand therefor
is made and without addressing others on the subject. The next best thing
would be for the det~ining authority to forward the requisition for copies of
documents to the officer having their custody wi.th a direction that the latter
shall with all convenient speed despatch the copies direct to the detenu at c
the place of his detention. It may further be desirable for directions to be
issued to all authorities to whom the custody of the detenus is entrusted that
they shall make available to the detenu concerned all the documents received
in that behalf as soon as such documents reach those authorities. [688B·D].
Per Iyer, J. (concurring observations) : (!) The Jaw of liberty is often the
battle for principles of procedural protection; but 'great principles seldom escape
working injustice in particular things'. And when an anti-social element gets D
away with it, society is the victim of injustice. [688F]. ·
(2) The judicial process is itself no model of perfection in promptitude of
disposal and may well sympathise with laggards elsewhere. But personal liberty,
·constitutionally sanctified, is too dear a ·value to admit of relaxation. And
preventive detention being no substitue for prosecution, the criminal law stands
stultified by the State itself if a charge is not laid before court with utmost
speed and the crime is not punished with deserving· severity. The rule of law
E
has many unsuspected enemies, and remember, limping legal process as well
as slumbering executive echelons are contributories to ·social injustice. [689F-G].
(3) It is an imperative of social justice through State action that white collar
Tobbers, dubiously respectable and professionally ingenious, rean the wages of
their sins, namely, preventive detention and prompt prosecution, both according
to law. Here, by not supplying promptly copies of the incriminating materials F
'.by an indifferent authority a detention is being judicially demolished. [6890] ..

ORIGINAL JURISDICTION : Writ Petition No. 2193 of 1980.

(Under Article 32 of the Constitution)
A. K. Sen and Harjinder Singh for !!he Petitioner.
G
Sushil Kumar and Miss A. Subhashini for Respondent No. 1
0. P. Rana and M. N. Shroff for Respondent No. 2.
The following Judgments were delivered :
KosHAL, J.-The prayer made in this petition under article 32
tOf .the Constitution of India is that the petitioner who has been H
684 SUPREME COURT REPORTS [1981] 1 S.C.R.

A detained in pursuance of an order dated the 29th May 1980 issued
by the Government of Maharashtra in exercise of the powers conferred
on it by clause (a) of section 5 of rthe Conversion of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (herein-
after referred to as the Act) shall be immediately released from
custody which, according to him, is illegal.
B
2. The arrest of the petitioner in pursuance of _the order above
mentioned was effected on the 4th June 1980, when a communica-
tion addressed to him and signed by the Under Secretary to the
Government of Maharashtra, Home Department, was delivered to
him. That communication contained the grounds on the basis of
c which the petitioner's detention had been ordered. A resume of those r
grounds appears below :
(a) On the 3rd February 1980 the petitioner went to rthe Air-
port at Bombay and tried to have a bag cleared at the
Customs counter with the object of smuggling 19 silver bars
having a total weight of 17 .5 kgs out of the country
D
through one U. C. Sajindran. The attempt was foiled by
reason of the vigilance of the Customs Officer concerned.
(b) On the 4th February 1980, 92 silver bars weighing 83 kgs
in all and valued at Rs. 2,65,600.00 were recovered from
· the residence of the petitioner being flat No. 9, Nawroji
Mansion, 31, Woodhouse Road, Colaba, Bombay by the
Customs authorities. These bars were also meant for being
smuggled out of the country.
On the 6th June 1980 the petitioner, while in custody, demanded
from the Under Secretary above mentioned, through a letter of that
date, all relevant "material/statements/documents;' to enable him to
F make an effective representation against his detention. The letter
evoked no response till the 3rd of July 1980 before when he received
a communic::ttion dated 20th June 1980 from the Secretary to the
Advisory Board constituted under the Act informing him that if he
wanted to make a representation against his detention he must do so
G "immediately". The petitioner waited for the documents he had
asked for and ultimately on the 3rd of July 1980 he. sent his represen-
tation to the Secretary of .the Advisory Board and simultaneously
repeated his request for the supply of documents, etc. to the Under
Secretary above mentioned. It was on the 11th of July 1980 that
copies of the documents forming the evidence in support of the
H grounds of detention were furnished to the petitioner.
3. The sole contention urged in support of the petition is that.
the petitioner was not gi:ven any . effective opportunity to make a:
PRITAM NATH v. UNION (Koshal, !.) 68~

representation against his detention in11smuch as the documents above A
mentioned were not supplied to him in time. The contention is
sought to be countered by an explana_tion for the delay by reason of
which the documents could not be supplied to him till the 11th of
July 1980. That explanation is contained in two affidav1ts, one sworn
by C. R. Mulherkar, Deputy Secretary to the Government of Maha-
rashtra, Home Department, and the o-ther by Shri S. G. Rege, B
·Assistant Collector of Customs, Rummaging and Intelligence and
COFEPOSA Cell, Bombay. According to Shri Mulherkar, the expla-
nation for the delay is as follows,:
"I say that the letter, dated 6-6-80 asking for. the copies of
the statement and documents was received in the Home Depart-
ment on 10-6-80. As the original s,tatements and documents, ·c
after they were considered by Smt. Malati Tatnbay-Vaidya, were
taken back· by the Customs Authority for further investigation,
by letter, dated 12-6-80, the letter dated 6-6-80 was forwarded
to the Assistant Collector of Customs for necessary remarks. By ,
letter dated 24-6-80, Assistant Collector of Customs forwarded
the copies of statements and documents running into 31 pages. D
On 24th June, and 25th June, 1980, the Mantralaya was closed
.due to the sad demise of Shri Sanjay Gandhi and Shri V. V. Giri
respectively. The said copies were, therefore, received in the
Home Department on 26-6-80. I say the 28th and 29th June
1980 were holidays being 4th Saturday and Sunday respectively.
The papers were forw.arded to Smt. Malati Tambay-Vaidya E
through proper channel on 2nd J~ly 1980 and '.she passed the
order 0n 3rd July 1980. The copies of statements and documents
were forwarded t_o the detenu on 4th July 1980, which were
received in the Nasik Central Prison, Nasik, on 7th July 1980,
and ,the same were handed over to the detenu on 7th July 1980
at the time of his transfer to the Bombay Central Prison for F
court production purpose.which was fixed .on the 9-7-1980. But
the petiti9ner did not .accept the same .since he was in hurry to
go to Bombay. However, the aforesaid documents -were_ delivered
.to the petitioner on _11th July 1980 through Bombay Central
Prison, Bombay. A copy of the report, dated 23rd July 1980,
received from the Superintendent, Nasik Road Central Prison, G
Nasik is annexed herewith. The reminder, dated 3-7-1980, sent
\
by the petitioner was received in the Home Department on
9-7-1980. As_ the copies were already forwarded on 4-7-80, no
action was taken ·on the said reminder. I say that the copies of
. statements and documents were supplied to the detenu with
. reasonable expedition." H
686 SUPREME COURT REPORTS [1981] 1 S.C.R.

A The reievant portion of Shri Rege's affidavit , may also be·
extracted:
"I say the representation, dated 6th June 1980, which was
forwarded by the Home Department on 12th June was received
in my Department on 13th June, 1980. The 14th June, 15th
June and 22nd June 1980 were holidays being second Satutday,
B
Sunday and Sunday respectively. I say the statements and docu-
ments were running into 31 pages. I further say during the same
period my Department was busy in preparing remarks in respect
of five other representations received from the COFEPOSA
detenus : - r
c "( 1) Shri Mahendra. Choraria
(2) Shri Pravin Kapur
(3) Shri Bekal Molddeen
(4) Shri Giridharlal Soni
(5) Shri A. S. Rana.
D
"I say in respect of the representation of Mr. Choraria
my Department was required to prepare copies of the statements
and documents running into 89 pages. In view of this heavy
pressure of work, my Department sent the copies of state-
ments and documents on 24th June 1980. As the Mantralaya
E was closed on 24th June and 25th June due to th~ sad demise
of Shri Sanjay Gandhi and Shri V. V. Giri respectively, the same ~
were forwarded to the Home Department on 26th June 1980."
The two affidavits, taken together show that in between the
receipt by the Home Department of the letter dated 6th June 1980 ¥
containing a demand by the petitioner for the supply of copies of \..
F
documents, and such supply, there was a gap of 32 days (10th June
to 11th July 1980). And it was during this gap that the petitioner
submitted his representation unaided by those documents, which
he did on the 3rd July 1980, in response to the letter issued to him
by the Secretary vf the Advisory Board and requiring him to submit
G his representation "immediate~y". The period of 32 days could very
well have been cut short considerably if the authorities concerned .'t"
had acted with promptitude. It would be seen that not even an
attempt has been made to explain as to why no attention was paid
to the demand for the supply of the copies on the 10th, 11th, 12th,
26th, 27th and 30th June and the 1st July, 1980. On all these
H dates the file was lying unattended in the Home Department. We
also cannot appreciate the procedure adopted by the Home Depart-
ment in asking the Assistant Collector of Customs to send his.
PRITAM NATH v. UNION (Koshal, 1.) 687·

"necessary remarks". For one thing, all the documents snould have A
been available with the' detaining authority and if their originals
had been taken away by the Assistant Collector of Customs, their
copies should have been retained in the Home Department for being
furnished to the detenu on demand. Secondly, there was no
impediment in the way of the Home Department requiring, through
its letter dated 12th June 1980, the Assistant Collector of Customs B
to furnish the copies direct to the detenu at the Nasik Central Prison,
Nasik. Thirdly, the reason for the delay of 4 days from the 7th
July to the 11th July 1980 cannot be accepted at its face value. The
petitioner was in custody at the Nasik Prison and there was no ques-
tion of his being "in a hurry to go to Bombay" and it appears that
the documents were really withheld from the petitioner right up to C
the 11th July 1980 for reasons best known to the authorities. As it
is, the manner in which the demand for the copies was shuttled
from officer to officer.and a period of no less than 13 days was taken
by the Assistant Collector of Customs to ·prepare and despatch the
copies renders the explanation anything but satisfactory.
4. In the situation above detailed learned counsel for the D
respondents contended that the petitioner had been supplied with
copies of the panchnamas prepared at the time of the seizure of the
bag on the 3rd February 1980 and of ~he recovery of silver from
his house on the next day and that the two panchnamas gave the
petitioner full notice of the case against him and furnished all the .
material which he needed to make his representation. The contenhon E
is wholly without force inasmuch as numerous statements which
were recorded on ~e two occasions when the goods were s~ized,
including those of U.C. Sajindran, the Customs Officer at the Airport
counter and the petitioner himself, were admittedly recorded by the
concerned authorities and formed an important part of the material
on which the grounds of detention were based. It was, therefore, F
incumbent OD' the detaining authority to supply copies of those state-
ments to the petitioner to enable him to make an effective represen-
tation and that is what was actually done on the 11th July 1980
although it was too late then to be of any real use to the petitioner
who had already submitted his representation. ·
5. It is now settled law that the detaining authority is bound to G
give opportunity to the detenu ·to make..a representation against his
detention and also to consider the same as early as possible and that
any unreasonable delay in furnishing to the detenu copies of docu-
ments which form the basis of the grounds of detention amounts
to denial to him of such opportunity (vide R.amchandra A. Kamat v.
Union of India and Others, [1980] 2 Supreme Court Cases 270). H
....
688 ' - .SUPREME COURT REPORTS
[1981] 1 S.C.R.

And i! go.es ':ithou~ saying that such denial of opportunity makes
the detent10n itself 11legal. That precisely is the situation which
obtains in the present case and the petitioner is, therefore, entitled
to be released forthwith.
6. Before parting with this judgment we ~ight impress upon
the re~pondents the necessity of chalking out for themselves a proce-
B
dure which ensures speedy and effective disposal of demands for
documents forming the basis of the grounds of detention orders
· passed in future. The best cour~e would be for the detaining autho-
rity to retain copies of all such dowments while passing the order of
de:ention itself and to make them available to the detenu as soon as
•C . a demand therefor is made and without addressing others on the
subject. If the adoption of such :i course be not feasible the next:
best thing would be for the detaining authority to forward the
requisition for copies of docnnients to the officer having their custody
with a direction that .the latter shall with all convenient speed despatch
the copies direct to the detenu at the place of his detention. It may
I> further be desirable for directio~ to be issued to all authorities· to
whom the custody of the detenus ·is entrusted that they shall make
available to the detenu concerned all the documents received in that
behalf a~ soon as such documents reach those authorities.
7. For the reasons stated we accept the petition, declare the
detention of the petitioner to be illegal and direct his immediate
E rele?se from custody.
\ KRISHNA IYER, J.-I agree with the reasons, observations and
holding of my learned brother in his judgment on behalf of both of
us. A brief supplement of my own, for reasons which will be
apparent, may not be out of place and so' I append my separate,
F concurring opinion. .~·
The law of liberty is often the battle for principles of procedural
protection; bnt 'great principles seldom escape working injustiae in
particular things'. And when an anti-social eiement gets away with
it, society is the victim of injustice. This grim comment is inevitable
G ·in the case before us· where the petitioner has been detained without
trial and seeks to free himsern vn the score of breach of basic require-
ments. My learned brother has explained how th'e violation, on the
strength of the rulings of this court, vitiates the detention. Under
our legal system, precedents bind and so, here we obey them and
direct release of the de'.enu. Even so, the facts of the case
H strongly savour of an economic offender intercepted in his subter-
ranean silver operations and betr.ayed by his collaborator. Neverthe-
less, the law is equal and hard ·cases cannot make bad law. That
PRITAM NATH v. UNION '(Kri1"1na Iyer J.) 6 8-9

is why the petitioner must succeed. And, may be, he has some A
.convincing case if given an effective opportunity to explain. Who
knows?
What surprises me, however, is the Executive's strange
indifference to compliance with law's requirements despite this court's
pronouncement~. This has resulted in the release of one who, the
B
'State alleges, i~ a master strategist of smuggling exploits at the
expense of the national economy. If there be truth in that imputa-
tion, - it ·i~ not for ine to express any view, especially since a prose-
·cution may be launched-who but the concerned authorities are to
'blame? Had the functionaries entrusted with the drastic detention
power been careful enough to update their procedures in keeping with
the strict directives laid down by this court the prospect of criminal c.
·adventuriits continuing their precious metal traffic could have been
pre-empted constitutionally by rnccessful preventive detention. Had
the rulings of this court, from .time to time, in the precious area of
personal liberty versus preventive detention, been converted into
-pragmatic 'instructions' by a special cell the law would have fulfilled
'itself and ierved the nation with iocial justice. It is an imperative D
of social justice through State action .that white collar robbers, dubi-
·ously respectable and professionally ingenious, reap the wages of
their sins, viz., preventive detention and prompt prosecution, both
according to law. Here, by not supplying promptly copies of the
incriminating materials by an indifferent authority a detention is
being judicially demolished. And prosecution for a serious offence E
is enjoying an occult spell of gestation because of official slow motion.
'Whether this court's insistence on the need to explain every day of
·.delay .in serving copies of every document on the detenu, is too tall
an order in an atmosphere of habitual institutional paper-logging
and hibernating is too ·late to ask. The judicial process-if one may
self-critically lament-is itself no model of perfection in promptitude F
·of disposal and may well sympathise with laggards elsewhere. But
personal liberty, constitutionaUy sanctified, is too dear a 1 value to
admit of relaxation. And preventive detention being no substitute
for prosecution, the criminal law stands stu1tified by the State itself
if a charge is not laid before court with utmost speed and the crime
is not punished with deserving sever1ty. The rule of law has many G
unsuspected enemies, and remember, limping legal process as well
. as slumbering executive echelons are contributories to social injustice.
I make these separate observations in the fond hope that an
·effective courier between the court and the Administration will func-
·tion so that every ruling of the higher courts is promptly reflected
iin imperative instructions to concerned officers so that obviable errors 'H
690 SUPREME COURT REPORTS [1981] 1 S.C.R.

A do not fatally flaw otherwise justifiable executive actions. What
impels me to write this brief note is the restless thought that law is.
no glittering abstraction in the books but translation of legislation into
corrective action. Surely, judged by actualities, judicial and
administrative justicing, have many 'promises tq keep'.
B s. R. Petition allowed..