Holding

The detention is vitiated because the detaining authority failed to supply the basic facts and documents within a reasonable time, violating Article 22(5) of the Constitution.

Summary

The petitioners, Indru Ramchand Bharvani and his father Ram Chand Bharvani, were detained under Section 3(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, after a customs raid on their diamond business. They requested copies of the statements and documents on which the grounds of detention were based, but the Maharashtra Government refused, citing investigation and public‑interest concerns. The Central Government later directed the State to supply the copies, which were finally provided after more than a month. The Supreme Court held that the detaining authority must furnish all basic facts and materials relied upon in the grounds of detention within a reasonable time, as mandated by Article 22(5) of the Constitution, and that the delay and mechanical refusal violated this requirement, thereby vitiating the detention. Consequently, the writ petitions were allowed and the detainees were ordered to be released.

Issues considered

The adequacy of merely serving the substance of statements in the grounds of detention versus supplying full copies of the documents relied upon.
Whether a delay of more than a month in providing the requested documents violates Article 22(5) and vitiates the detention.
Whether the State Government could lawfully refuse to supply the documents on the ground of public interest under Article 22(6).
Whether the rejection of the detainees' representation by an unauthorized person invalidates the detention order.

Legislation cited

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

Subjects

COFEPOSAdetentionArticle 22grounds of detentionright to representationdelaypublic interestcustomssmugglinghabeas corpus

Judgment

' ~<

343

.A

GANGA RAMCHAND BHARVM'1
v.
UNDER SECRETARY TO THE 90VERNMENT .OF
MAHARASHTRA & ORS. B

I August 1, 1980.
[R. S. SARKARIA AND R. S. PATHAK, JJ.]
Foreign Exchange Prevention of Smuggling Activities Act, 1974-Section
3(i)--Scope of. C
Delay in supplying grounds of detention-If invalidates detention.
The two detenus were carrying on business in diamonds and precious
stones: The Customs Officer at' Bombay raided their premises and seized a
huge quantity of valuables. During interrogation they claimed that some of
·the articles seized were not smuggled goods but were locally acquired and
·gave names of four persons from whom they were acquired. The detenus D
were released on bail by the Magistrate on certain conditions.

An order of detention under section 3(i) of the COFEPOSA, 1974 alongwith
the grounds of detention was served on the detenus 'on Feb. 16, 1980. The
wife of the detenu addressed a letter on Feb. 18, 1980 to the first respondent
!requesting him to furnish the deterius with the materials relied upom by
the detaining authority in the grounds of detention. The detenu 1eceived E
a letter dated March 14, 1980 from the State Government on March 25,
1980 declining the request for supply of copies. The detenu had also sent
a petition through the Central Government on March 11, 1980 complaining
the non supply of copies of the necessary documents and also prayed for
the revocation of the order of detention. On April 3, 1980 the Central
·Government wrote to the detenu that his. request for revocation had .been
reje;ted. The Central Government, however, advised the State Government J.I'
to furnish the detenu with the copies of the required documents. As a
result, the copies were received by the detenu on April 3, 1980. The, detenu
had also made a representation to the. State Government on March 24, 1980
which, according to the information by the counsel of Respondent No. 1,
was declined.

The counsel for the detenus challenged the detention order on the G
grounds; (i) that the detaining authority callously and deliberately refused
to supply the copiest of the statements and documents relied upon in the
grounds of detention, (ii) the detenu had a constitutional right to be afforded
a fair and full opportunity ·to make an effective representation against their
.detention and his representation dated March 11; 1980, was wrongly rejected
by an unauthorised person. The respondent argued that (i) the substance of
the information required had ~en incorporated in the grounds of detention ,H
which were served on the detenus, (ii) the supply of further information
would have exposed the informants to bodily harm and the information would
have adversely affected the investigation· and harmed public interest.

,.
344 SUPREME COURT REPORTS [1981] 1 S.C.R.
A. Accepting the petition

HELD : The very fact that soon after the directions of the Central
Government copies were ready and despatched to the detenus within three days
thereof, shows that there was no physical difficulty in preparing and supplying
the copies to the detenus, with due promptitude. [349A-BJ

It is well settled that "the constitutional imperatives enacted in Article
22(5) of 'the Constitution are two-fold : (i) the detaining authority must, as
soon as may be, that is, as soon as practicable after the detention, communicate
to the detenu the grounds on which the order has been made and (ii) the
detaining authority must afford the detenu the earliest opportunity oi ·making
a representation against the detention order. In the context 'grounds' does
not merely mean a recital or reproduction of a ground of satisfaction of
the authority in the language of section 3, nor is its connotation restricted
to a bare statement of conclusion of fact. Nothing less than all the. basic
facts and materials which influenced the detaining authority in making the
order of detention must be communicated to the detei:me. [350B·D]

The mere fact that the grounds of detention ·served on the detenu are
elaborate, does not absolve the detaining authority fromr its constitutional
responsibility to supply all the basic facts and materials relied upon in the
D grounds to the detenu. In the instant case, the grounds contain only the
substance of the statements, while the · detenu had asked for copies of the
full text of those statements. [350E-F]

Khudiram Das· v. The State of West Bengal & Ors. [1975] 2 S. C. R.
832, referred to.
E The statements supplied to the detenus are their subsequent statements
in which' they have completely resiled from their earlier statements. It is'.
obvious that the supply of the earlier statements which were entirely in
favour of the detenus and the full texts of which have been withheld, could
not, by any reckoning, expose those persons to any harm or danger at the
hands of the agents or partisans of the detenus. If any part of the statements
of those witnesses had to be withheld in public interest, the appropriate
Ii' authority could, after due application of its mind, make an' order under
clause (6) of Article 22 of the Constitution, withholding the supply of those
portions of statements after satisfying itself that their disclosure would be
against the public interest. [351 F-G]

The detaining authority, without applying its mind to the nat11re of
the documents, the copies of which were asked for by the det~nus,
.(; mechanically refused as desired by the Collector, to supply the copies of
all the documents. It was on receiving a direction from· the Central
Government that the copies were supplied. On account of this chill
indifference and arbitrary refusal, the detenu, who had applied for copie~
on Feb. 18, 1980 could get the same only on March 27, 1980 i.e. after
more than one month. Thus, there was unreasonable· delay of more than
a month in supplying the copies to the detenus of the material that had been
H relied upon or referred to in the 'grounds' of detention. There was thus
an infraction of the constitutional imperative· that in ~ddition to the supply
of the grounds of detention, all the basic material relied upon or referred
to in those 'grounds' must be suppli.ed to the detenu with reasonable expedition
GANGA RAMCHAND v. MAHARASIITRA (Sarkaria, J.) 345

to enable him to make a full -and effective representation at the earliest. A.
What is 'reasonable' expedition is a question of fact depending upon the
circumstances of the particular case. [351 H, 352 A·CJ

[n the peculiar facts of the instant case, the delay of more than a month,
in supplying the copies of the basic materials and documents to the detenus
has Titiated the detention. [352 C·D]

ORIGINAL JURISDICTION : Writ Petition Nos.- 434-435 of 1980.
(Under Article 32 of the Constitution)

Ramjethmalani, H. Jagtiani, S. K. Dhingra and L. P. Daulat for
the :Petitioner.

M. N. Phadke arid M. N. 'Shroff. fori the Respondent (State). C

Abdul Kadar and Miss A. Subhashini for the Respondent (Union
of India).

The Judgment of the Court was delivered by : J>
SARKARIA, J.-This judgment deals ·with two writ petitions for
the issue of a writ of habeas corpus. which were allowed by us by
a sha.rt Order, dated April 23, 1980.

fo. Writ Petition 434 of 1980, the detenu is one Indru Ramchand B
Bharv:mi; while in Writ Petition 435 of 1980, the detenu is Indru's
r father, Ram Chand Bharvani. The two detenus Indru and Ram
Chand, along with others, are carrying on business in diamonds and
precious stones in partnership under the style of "M/s. Gems Impex
Corporation", 35, New Marine Lines, Bombay, since 1971.
I
On November 16, 1979, the Customs Officers at Bombay raided F
the premises of the said firm and in the course of the raid, seized ·
diamonds and pearls worth about Rs. 55 lakhs and, also, som~
jewellery and Rs. 1,40,000 in Indian currency and two gold sovereign
coins. On the following day. the Customs raided the residential
premises of the son, Indru, and seized two cameras and three wrist
watches worth about Rs. 1.50 lakhs. G

The detenus were arrested on November 23, 1979 and
interrogated. During interrogation, the detenus ·claimed that the gems
and other articles seized were not smuggled goods but were local
materials, locally acquired.' They also gave' the names of four
persons from whom these gems had been acquired. Both the father
and the son were arrested and were produced before a Magistrate.
They were released on heavy, bail subject to the condition that they

'
346 SUPREME COURT REPORTS Cl981J 1 S.C.R.

A would attend daily before the customs Officers and cooperate in the
investigation. This condition was later on relaxed,
On February 16; 1980, an order of detention, dated February
'15, 1980, purporting to have been made under Section· 3(1) o~ the
Conservation of Foreign Exchange and Prevention of Smuggling
B Activities Act, 1974 (for short called COFEPOSA) by the
State Government was served on the detenus. This order was
authenticated by the Under Secretary to the State Government. The •
grounds of detention were also served on the detenus alongwith ..
the 'order· of detention on February 16, 1980.
On February 18, 1980, the wife of the detenu, Ram Chand,
addressed a letter to the first respondent (Under Secretary to the
Government of Maharashtra), requesting him to furnish the detenus
with the material. relied upon by the detaining authority ·in the
grounds of detention. On March 25, 1980, detenu received a letter,
dated March 14, 1980 from the State Government, declining the
request for supply of copies to the deteilu. Prior to that on March
12, 1980, the detenus moved this Court by petitions under Article
32 of the Constitution, for the issue of a writ of habeas corpus.
On March 11, W80, the detenu had also sent a petition through
the Central Government, complaining of the non-supply of copies of
the neces§ary documents. They also made, by that petition, such
E representation~ as they could, praying for revocation of the order
of their detention. On April 3, 1980, the Central G_overnment wrote
to the defenus that their request for revocation had been rejected.
I , ' '

The Central Government. however, advised the State Government
to fUmish the detenus with the copies of the required .documents.
F As a result, on April 3, 1980 copies were received by the detenus
from the State Government under their covering letter, dated March
31, 1980,

On March 24, 1980, the detenu also made a representation to
the State Government -which, according to the information furnished
G at the Bar by Mr. Phadke appearing for respondent I, was declined.
Shri Ram Jethmalani, appearing for the detenus, challenges the
detention mainly on these grounds :
(1) The order of detention, purporting to have been signed by
Shri Salvi, Secretary in the Home Departmen~. to the .Government
H' of Maharashtra, is void because the concc:rned Minister of the State
Government never, in fact, passed any such order and under the
rules .0 f business framed by the Governor under Article 166 of the
GANGA RAMCHAND v. \MAHARASHTRA (Sarkaria, J.) 34 7

Constitution, Shri Salvi had no authority to pass the order A
of detention.
. (2) The detaining .authority never applied its mind to the earlier
statements of foilr persons from whom the 1detenus claimed to' have
acquired the gems in question, and in• which they had on the basis
of documentary evidence supported the contention of · the ·detenus.
B
Further, there was no evidence of smuggling in this case at all and
the detaining authority committed illegality inasmuch as it relied on
presumption under· Section 123 of the Customs Act. The use· of
this presumption was not available to the detaining authority in the
exercise of. its jurisdiction under COFEPOSA · · This shows that
there was total non-application of mind on' the· part· of the detaining
authority. ·
c
(3) The detenus made a written request to the detaining authority
on February 18, 1980 for supply of the copies of the statements and
documents relied upon in the grounds of detention, to enable them
to make an effective representation. The detaining authority,
however, callously and deliberately refused to supply the copies and D
conveyed rejection of this request by a letter, dated February 14,
.1980, which, in fact, was received by the detenus orl March 25, 1980.
It was on the direction of the Central Government that the State
Governme.nt supplied the copies of some of the statements to the
detenus on April 3, 1980. The detenu had a constitutional right
to be afforded a fair and full. opportunity of making an effective
representation against his detention. The refusal and the belated E
supply bf these copies had violated that right of the detenu. Even
Jnow, copies of the earliest statements ofi the four persons, as is
apparent from their statements, have not been supplied to the detenus.
On account of •this delay, the detention is vitiated.
(4) The detenu's representation, dated March 11, 1980, made to
F
the Central Government for revocation of. the detention under Section
11 of the COFEPOSA has been wrongly rejected by an unauthorised
person. Under the Rult;s of Business, only the. Revenue Minister
of the Union Government was authorised to deal with and reject that
representation. But it seems that the representation was never put
up before the Minister. G
(5) The representation, dated March 24, 1980, made by the
· / detenus to the detaining authority is now reported to have been
rejected on April 8, 1980. But the question still remains as to who
passed the order of rejection.' If this representation was rejected
by a person other. than the Minister who alone was competent to do
so, under the Maharashtra Rules of Business framed undbr Article H
l 66 of the Constitution, · then such rejection would be illegal.

'..,:
348 SUPREME COURT REPORTS [198ll l S.C.R.

A As regards (1), Shri Phadke, appearing for the respondent-State,
has submitted for the perusal of the Court the original record from.
which it is apparent that the matter was put up by the Secretary.
Shri P. G. Salvi to the Minister concerned and the order of detention
was, in fact, passed by the Minister. The first contention is therefore,
devoid of merit.
B
Similarly, it is clear from the office records that the represenation,
dated March 24, 1980, of the det1~nus was considered by the Adviser
to the Governor of Maharashtra, the State then being under
President's rule. The Adviser was competent under the Rules of
Business framed under Article 166 to deal with and reject such
c representation. We therefore, do not find any force in Contention (5),
either.
Indeed, Shri Jethmalani has concentrated mainly on Contention
(3).

In reply to this contention, Shri Phadke submits that the grounds
D of detention were as elaborate as possible, that the substance of the
statements, of which copies were asked for by the detenus, had been
incorporated in those 'grounds' which were served on the detenus,
that in such a situation, the 'grounds' served on the detenu, 'were ·
more than sufficient to enable him to make an effective representation.
It is contended that under the Constitution, the detenu has got a
E right to be furnished only with .the grounds of detention, that is,
conclusions drawn from· facts and not matters of detail. or any other
matter which is not referred to or relied upon in the grounds of
detention. This, according to Shri Phadke, was one of the reasons
that impelled the State Government to refuse the supply of the copies
to the detenu. The second reason, according to the counsel was that
·F the supply of the further information would have exposed the
informants to bodily harm at the hands of the agents of the detenus,
that the matter being still under investigation, the disclosure at that
stage of the information would have adversely affected the investigation
and harmed public interest. ·
G Let us at the outset be very clear about the. precise factual
position. The request for copies was made by the detenus on
February 18, 1980. After a deiay of more than three weeks, this
request was rejected by the State Government and that rejection was
communicated to the detenu, by letter dated March 14, 1980. This
letter was received by the detenu only on March 25, 1980. This
H. delay ,in transit, also, was unusual and inordinate. On March 27,
1980, the Central Government advised the State Government to supply
the copies. Thereupon, it seems, that within three days the copies
GANGA RAMCHAND V. MAHARASHTRA (Sarkorio, /.) 34 9

were put in a course of communication to the detenus by the State A
Government under their covering Jetter, dated March 31, 1980, and
were actually received by the detenus on April 3. 1980: The very
fact that soon after the directions of the Central Qovernment copies
were ready and despatched· to the. detenus within three days thereof,
shows that .there was no physical difficulty in preparing and supplying
the copies to the dete~us, with due promptitude. B
, ,
To justify the refusal to supply the copies the stand taken by
the State Government in the affidavit filed on their behalf by Shri
P. G. Salvi, Secretary to the Government, Home Department, is as
follows :
I

"(a) Looking at the exhaustive grounds furnished to the c
detenu and also the fact that the four persons named therein had
denied before the Customs Officers that they sold the diamonds
in question or gave them on 'jhangad' basis was communiCated
to the detenu it was not necessary to furnish any copies of
statements and documents to the detenu to enable him to make
D
an effective representation against his detention.
(b) After the application on behalf of the detenu dated 18th
February 1980 was received, a communication dated 27th
February W80 was received from the Collector of Customs
(Preventive), Bombay. This letter clearly suggested that copies
should not be given-Annexure "A"."
Annexure "A" to the affidavit is a letter, dated February 27, 1980,
from the Collector of Customs, Bombay, addressed to the Secretary
to the Government of Maharashtra, Home Department, in reply to
the latter'5 letter, dated February 19, 1980. In para 2 of this letter,
the Collector has stated :
F
"In the case in which the captioned detenus are involved,
investigation, to unearth the conspiracy and find out the other
persons involved in it, are in progress. It appears from the
material under seizure that the case has wide ramifications, which
need to be investigated from variqus angles. Hence, furnishing
copies of· the statements and documents at this stage G
would be detrimental to the investigation in progress from
prosecution point of view and might even endanger the life of
such of those witnesses who have either deposed · against the
detenus or provided clues. Under these circumstances,
furnishing of copies of statements and documents relied upon
in the grounds for detaining the aforesaid accused at this stage, H
would not be in public interest. However, we have no objection
for furnishing copies of the. panchanamas."
2--647' S.C. India/80
350 SUPREME COURT REPORTS [19811 1 S.C.R.

.A In this affidavit, Shri Salvi has not stated that he had persorially
applied' his mind to what the Collector. had said in his letter, dated
February 27, W80, nor has he affirmed that he had intimated to the
detenu that the copies bad been refused in exercise of the discretion
under Article 22(6) of the Constitution, on the ground that the
disclosure of that information was, in the opinion, of the Government,
B not in the public interest. ·

It is well settled that "the constitutional imperatives enacted in
Article 22(5) ·of the Constitution are two-fold : (i) the detaining
authority must, as soon as may be, that is, as s90D. as practicable
after the· detention, communicate to the detenu the grounds on which
c the order has been made; and (ii) the detaining authority must afford
the detenu the earliest opportunity of making a representation against
the detention order. In the context, 'grounds" does not merely mean
a recital or reproduction of a ground· of satisfaction of the authority
in the language of Section 3; nor is its connotation restricted to a
bare statement of conclusion of fact. "Nothing less than all the basic
D facts and materials which influenced the detaining authmity in making
the order of detention must be communicated to the detenu". This
is the ratio of the .decision in Khudiram Das v. The State of West
Bengal & Ors.(1), to which one of us (Sarkaria, J.) was a party. This
principle was enunciated after an exhaustive survey of the. authorities
by Bhagwati, J. who delivered the opinion of the Court It is,
E
therefore, not necessary to burden this judgment by noticiIDg all the
other decisions which were examined in that case. The mere fact
that the grounds of detention served on the detenu are elaborate,
does not absolve the detaining authority from its constitutional
responsibility to supply all the basic facts and materials relied upon
F in the grounds to the detenu. In the instant case, the grounds
contain only the sub$.'ance of the statements, while the detenu had
asked for copies of the full text of those statements. It is submitted
by the learned counsel for the petitioner that in the absence of the
fu!J texts of these statements which had been referred to and relied
upon in the 'grounds' of detention, the detenus could not make an
G effective representation and there is disobedience of the second
constitutional imperative pointed out in Khudiram's case. There is
merit in this submission.
The second reason for non-supply of the copies given by Shri
Salvi, it may be recalled, is that the Collector bad said that the supply
of the copies at that stage would be detrimental to the investigation
H
and public interest. This "so-called1' reason also was unsustainable .
(') [1975] 2 S. C. R. 832.
:~

GANGA RAMCHAND v. MAHARASHTRA (Sarkaria, J.) 351

in law. Shri Salvi does not appear to have applied his mind to the A
question whether or not the supply of these copies would be injurious
to public interest. He appears to have mechanically endorsed what
bad been written to him by the Collector in his letter, dated February
27, 1980. The detenu had asked for copies of three .kinds of
documents : (a) His own statements which, according to the grounds
of detention,. were in consistent and contradictory to each other, (b)
Copies of the statements of his father, who is the detenu in Writ
Petition No. 435 / 80. These statements, also, according to the grounds
,
B

of detention, were mutuaily inconsistent. (c) The full texts of the
statements made by the four persons, whose names, particulars and
substance of their statements were mentioned in the grounds of
detention. c
As regards the first two categories of statements the substance
of which was already in the knowledge of the deponents, no question
of their disclosure being harmful to the public interest could arise.
Nor could the supply of the full text of those statements, by any
stretch of imagination, be said to be such that it might endanger the D
lives of the deponents. Regarding category (c), the substance of the
statements of the four persons mentioned in the grounds of detention
had already been disclosed to the detenus. It was therefore, not
reasonably possible to say that the disclosure of the full texts of their
statements would endanger their safety· or harm public interest. In
the copies of the statements of those persons which was ultimately E
supplied to the detenus after undue delay on the direction of the
Central Government, there is a rreference to the earlier statements ·of
these four persons in which they had, on the basis of some account
books and documents, supported the contention of the detenus that
the latter had acquired the gems in qµestion from those persons. The
statements. supplied to the detenus are their subsequent statements in F
which they have completely resi!ed from their earlier statements. It
is obvious that the supply of the earlier statements which were entirely
in favour of the detenus and the full texts of which have been with-
held, could not, by any reckoning, expose those persons to any harm
or danger at the hands of the agents or partisans of the detenus.
G
Be that as it may, if any part of the statements of those witnesses
had to be withheld in public interest. the· appropriate authority. could,
after due application of its own mind, make an order under clause
(6) of Article 22 of the Constitution, withholding the supply of those
'.POrtionis of statements after satisfying itself that their disclosure
would be against the public interest. In the instant case, the detaining H
authority, without applying its mind to the nature of the documents,
the copies of which were asked for by the detenus, mechanically
352 SUPREME COURT REPORTS l1981J 1 S.C.R.

A refused as desired by the Collector, to supply the copies of all the
documents. Indeed, it was on receiving a direction from the Central
Government that the copies were supplied. On account of this chill
indifference and arbitrary refusal, the detenu, who had applied for
copies on February 18, 1980, could get the same only on March 27,
1980, i.e., after more than one month. Thus, there was unreasonable
B delay of more than a month in supplying the copies to the detenus,
of the material that had been relied upon or referred to in the
"grounds" of detention. There was thus an infraction of the
constitutional imperative that in addition to the supply of the grounds
of detention, all the basic material relied upon or referred to in those
"grounds" must be supplied to the detenu with reasonable expedition
c to enable him to make a full and effective representation at the earliest.
Of course, what is "reasonable expedition" is a question of fact
depending upon the circumstances of the particular case. In the
peculiar facts of the instant case, we are of opinion that the delay'
of more than a month, in supplying the copies of .the basic materials
D and documents ·to the detenus has vitiated the detention.
It was on this short ground, we, by our Order, dated April 23,
1980, had allowed the writ petitions and directed the release of the .
detenus.
' Petition allowed.
N. K. A.