Holding

A 17‑day delay in supplying the additional documents, given the circumstances, does not violate Article 22(5) of the Constitution, and the detention order stands.

Summary

Lallu Jogi Patel was detained on 31 January 1980 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). He sought copies of the documents relied upon in the grounds of detention and permission for his lawyer to interview him. The State supplied the documents after a delay of 17 days (excluding transit) and granted the interview request two days later. Patel contended that the delay violated Article 22(5) of the Constitution and the statutory requirement to furnish the grounds within five/15 days, and that the counter‑affidavit filed by a Deputy Secretary was invalid. The Supreme Court held that the counter‑affidavit was valid, the introductory facts in the grounds were not irrelevant, and that a 17‑day delay, given the volume of material (461 pages) and the need for inter‑departmental consultation in a large smuggling case, was not unreasonable. Consequently, no breach of Article 22(5) occurred and the writ petition was dismissed.

Issues considered

The adequacy of the 17‑day delay in furnishing copies of documents under Article 22(5) and Section 3(3) of COFEPOSA.
The validity of a counter‑affidavit filed by a Deputy Secretary rather than the Home Minister.
Whether introductory facts in the grounds of detention are relevant for the purpose of Article 22(5).
The effect of the delay in granting the lawyer’s interview on the detainee’s right to make a representation.
The overall validity of the detention order under COFEPOSA.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1), s. 3(3)
Customs Acts. 108
Gujarat Condition of Detention (COFEPOSA) Order, 1975s. Rule 14(xii)

Subjects

habeas corpuspreventive detentionCOFEPOSAArticle 22(5)Article 22(6)delay in furnishing groundscounter‑affidavitsmugglingconstitutional law

Judgment

f-·-

353

A\

HASMUKH S/O BHAGWANJI M ..PATEL
v.
THE STATE OF GUJARAT & ORS. B

August .4. 1980
[R. S. SARKARIA AND R. S. PATHAK, JJ.]
Writ of habeas corpus, issuance of-Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, Section 3-Concept of .~rounds of
detention explained-Filing of counter-affidavit by an officer who authenticated
c
the detention order passed by the Home Minister and issued the .same under
the rules of business is perfectly valid-Introductory facts or history of the case
in the grounds of detention cannot be co'nsidered as irrelevant--Delay of 17
days excluding the time taken for communication in transit in the overall facts
of the case is not so unreasonable as to amount to an infraction of the consti-
tzttiona/ imperatives in Article 22(5) of the Constitution. D
Lallu Jogi Patel was detained on January 31, 1980 by an order of detention
dated January 30, 1980 passed by the Minister of Home Affairs, Gujarat St~.te
under Section 3(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 and issued by the second respondent a Deputy
Secretary of Government of Gujarat, Home Department. The Order was ex-
pressed in the name of the Governor of Gujarat. On the same date, the
grounds of detention were served on the detenu. The detenu prayed for copies
E
of the statements and documents relied upon in the grounds of detention on
1
February )5, 1980. On February 1, 1980 the detenu's Advocate sought per-
mission for an interview with the detenu to seek instructions from him for
drafting his representation. On February 20, 1980 the· State Government in·
formed the Advocate that his request for interview with the detenu had been
granted. After consulting the Collector of Customs, the Home Department also,
1npplied to the detenu the documents running into 461 pages on March 7,
F
1980 which were ·actually received by the detenu on March 11, 1980, that is
after a delay of 17 days, excluding the time taken in transit etc.
Dismissing the petition, the Court
HELD : (1) In view of the fact that the original detention order was, in
fact, passed by the Home Minister against whom no personal ma/a {ides are
alleged and the said order was authenticated and issued under the Rules of G
·Business by the Deputy Secretary, Home Department {Special}, the latter's swear-
ing the counter-affidavit in the case is valid. (360 F-G]
(2) The introductory facts or history of the case incorporated in the grounds
of detention cannot be considered as irrelevant matters which went into the,
.,consideration of, the detention order. [360 G-H]
(3) A democratic Constitution is not to be interpreied merely from a lexi· B
.cographer's angle but with a realisation that it is an embodiment. of the living
'.thoughts and aspirations of a: free· people. The concept of "grounds" used
in the context of detention in Article 22(5) of the Constitution and in sub~.

•
354 SUPREME COURT REPORTS n9s11 1 s.c.R.

A. section (3) of Section 3 of COFEPOSA, therefore, has to receive an interpre·
tation which will keep it meaningfully in tune with a con\emporary notions of
liberty and fundamental freedoms guaranteed in Article 19(1), 21 and 22 of
the Constitution. [361 A-CJ
(4) In Khudiram Das v. West Bengal the Supreme Court held that the con•
stitutional imperatives enacted in Article 22(5) are two-fold: (i) The detaining
authority must, as soon as may be, that is, as soon as practicable after the
B detention, communicate to the detenu the grounds on which the order has
been made; (ii) the detaining authority must afford the detenu the earliest op·
portunity of making a .representation against the detention order and that these
two are the barest minimum safeguards which must. be observed before an-
executive authority can preventively detaio. a person; the grounds under Arti-
cle 22(5) mean all the basic facts and materials on which the order of deten-
tion is based, therefore, all the basic facts and materials which influenced the
c detaining authority in making the order of detention must be communicated'
to the detenue. [361 D-G]
(5) While the expression "grounds" in Article 22(5), and fer that matter,
in ~ection 3(3) of the COFEPOSA, includes not only conclusions of fact but
also all the "basic facts" on which those conclusions are founded, they are
different from subsidiary facts or further particulars or the basic facts. The
distinction between "basic facts" which are essential factual constituents of the
D "grounds" and their further particulars or subsidiary details is important. While
the "basic facts" being integral part of the "grounds" must, according to Sec-
tion 3(3) of COFEPOSA "be communicated to the detenu, as soon as may
be, after the detention, ordinarily not later than five days, and in exceptional
circumstances and for' reasons to be recorded in writing, not later than 15·
days from the date of detention", further particulars of those grounds, in com-
pliance with the second constitutional imperative spelled out from Article 22(5)
E in Klzudi Ram's, case, are required to be ~ommunicated to the detenu, as soon
as may be practicable, with reasonable expedition. It follows, that if in a
case the so-called "grounds of detention" communicated to the detenu lack the
basic or primary facts on which the conclusions of fact stated therein are
founded, and this deficiency is not made good and communicated to the detenuo
within the period specified in Section 3(3), the omission wilL be fatal to tho
validity of the detention. Jf, however, the grounds communicated are elaborate
F and contain all the "basic facts" but are not comprehensive enough to cover
all the details or particulars of the "basic facts", such particulars also, must
be supplied to the detenu, if asked for by him, with reasonable expedition, within
a reasonable time. What is "reasonable time conforming with reasonable expedi-
tion", required for the supply of such details or further particulars. is a question•
of fact depending upon the facts and circumstances of the particular case. In
the circumstances of a given case, if the time taken for supply of such additional
G
particulars, exceeds marginally, the maximum fixed by the statute for communi-
cation of the grounds it may still be regarded "reasonable", while in the facts
of another case, even a delay which does not exceed 15 days, may be unjustified,
and amount to an infraction of the second constitutional imperative pointed out
in Klzudi Ram's case. [362 C-H, 363 A]
In the· instant case there is no breach of the first constitutional imperativ"
H embodied in Article 22(5). The grounds supplied to the detenu were elaboratO-
and full and contained all the "basic facts" although they did not set out alt
the details or particulars of those "basic facts" relied upon or referred to
therein. [363 A-BJ
HASMUKH v. GUJARAT (Sarkaria, /.) 355

(6) In the totality of the circumstances of the present case, the period A
of 17 days taken in considering the supply of the copies was not an unreasonably
long period which could amount to a denial of the detenu's right to make an
effective representation and, therefore, .infraction of the constitutional impera-
tives in Article 22(5) of the Constitution. Firstly, the detenu was indulging
in smuggling out silver from India and exporting it to the Gulf countries in
a big way and the smuggling activity attributed to the detenu had international
ramifications resulting in consultation with several authorities supervising the B
Customs. The Government had to consult the Collector of Customs and even
summon and discuss in a high level meeting before ordering the supply of the
copies. Secondly, the documents and statements of which the copies were
sought covered more than 461 pages. Preparation of such a bulky record
could be time consuming if the aid of some appliance like the Zerox machine
were not available to prepare the copies by mechanical process. Thirdly, in
spite of the grant of the request of the detenu's lawyer to interview the former :.c
and the supply of the copies the detenu did not make any representation to
the detaining authority or for the consideration of the Advisory Board which
is a relevant circumstance to be taken into account for determining whether
the delay in supplying the copies has, . in fact, prejudiced the detenu's right
to make a speedy and effective representation. [363 C-E, H, 364 A-D-G]

D
Khudi Ram v. State of West Bengal, [1975] 2 S.C.R. S32, Go/am v. The
State of West Bengal, W.P. 270 of 1974 dated 12-9-74; Prab/m Dayal Deorah
etc. v. District Magistrate, Kamrup & Ors.. A.LR. 1974 S.C. 183. referred to.

ORIGINAL JURISDICTION : Writ Petition No. 449 of 1980.
I

(Under Article 32 of the Constitution) E

Soli J. Sorabjee, M. G. Karmali, Vineet Kumar and Mukul
Mudgal for the Petit,ioner.
~
;, J. L. Nain and M. N. Shroff for the Respondent.
F
The Judgment of the Court was delivered by,

SARKARIA, J.-This is a petition under Article 32 of the Consti-
tution for the issuance of a writ of habeas corpus.

On January, 31, 1980, an order of detention, dated January G
JO. 1980 under Section 3 (1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (for
short, called the COFEPOSA), issued by the second respondent,
Shri P. M. Shah, Deputy Secretary to the Govemniernt of Gujarat,
Home Department, was served on Lallu Jogi Patel (hereinafter
referred to as the 'detenu'). The order was expressed in the H
name of the Governor of Gujanat. On the same date (January 31,
1980)~ the grounds of detention were served on the detenu.

I
356 SUPREME COURT REPORTS [19811 1 S.C.R.
A The grounds of detention served on the detenu are very elabo·
rate and detailed. They also contain the introductory background,
jlJIC]uding th,e history oJf the detenu. It is stated herein that the
detenu was previously detained by an order, dated Septemb,er 1974.
of the Govetrnment of India, under Section. 3 of the Maintenance
of Internial Security Act (MISA). On, the repeaQ of MISA and
the commencement of COFEPOSA, a fresh order, dated December
19, 1974, under the COFEPOSA, was served on the detenu.
The detenu's writ petition for a writ of habeas corpus was
dismissed by the High- Court of Gujarat on May 6, 1976 in view • \~·
of the Presidential Order, dated Ju:n,e 27, 1975, made under Article ~,,,.
c 359(1) of the Constitution which had suspended the iights under
Articleli 14,- 21 ar~d 22 011 the Constitution. The detenu was, ~·
however, released on March 21, 1977. As stated in the 'grounds',
his activities were kept under surveillance by the Customs Depart·
ment. In or about July 1979, the detenu attempted to smuggle
gold, but he was not successful. Calls booked by the detenu to
D
various telephone numbers of othter suspected smugglers wefei.
however, detected.
On November 21, 1979, the detenu hatched a conspiracy
with one Umar Bakshi to smuggle wrist-watches and silver out of
the country to Dubai. In pursuance of that conspfracy, . on
E October 9, 1979, the detenu and the said Umar Bakshi smuggled
about 45 slabs of silver in the vessel "'Saraswati Prasad" registered
in the name of Ravia Kalan of Daman.

On November 30, 1979, 23 slabs of silver weighing, in aggre-
gate, 692.527 kgs. valued at Rs. 15,65, 111, were 5eized by the
F officers of the Collectorate of Central Excise and Customs from a
truck which was intercepted near village Pipodara. The occupants
-of the motm-truck disclosed their, identi~ies as (1) Kailashchandrla( ·
Shantilal Jain, (2) Mohmed Hussain Hanif Mohmed Pathan, the
driver, and (3) Babukhan Istiyarkhan Ahmed Path~n. ,the cleaner.
all of Udaipur. The statements of these persons recorded under
G Section 108 of the Customs · Act and the other circumstantial
evidence collected. revealed that the detenu was engineering the whole
process of attempting to smuggle the silver out of India in conspiracy
.with Umar Bakjhi and others. In para 35 of the 'grounds', it is
mentioned:
H "The detaining authority, viz., the State ·Government
considered it against the public interest to disclose the sources
of the intelligence referred in paragraphs 3, 4, 6 and 30 and
-- )-*-<)--• ~

•
HASMUKH v. GUJARAT (Sarkaria, J.) 357

further considered it against public interes.t to disclose further 'A.
facts contained in various intelligence reports referred to in
the aforesaid paragraphs_ 3, 4, 6 and 30."
On February 15, 1980, the detenu se~c a letter, throefgh the
Superintendent Jaili requesting for the supply of cop!es of state·
ments a:nd documents relied upon in the grounds of deterution. · :B
,According to the counter filed by Shri Shah, Deputy Secretary
'
to Government of Gujarat, this letter was received by the State
Government on February 18, 1980. The State Government then on
February 22, addressed a letter to the Sponsoring Authority (lCollector
of Customs. Ahmedabad), enquiring whether furnishing copies of
documents would not prejudice public interest.
On February 25, 1980, the· Collector wrote back to the State
Government that it was not necessary to supply the copies of the
statements and documents asked for by the detenu, "as the grounds
of detention served on him were quite elaborate to enable the
D
detenu to make effective representation". The Collector sen.t copies
ot' the required statements to the State Government and the latter
received the same on February ~9, 1980.
On .March 4, 1980, the second respondent (Deputy Secretary,
Home Depar•tment) arranged personal discussion with the Collector
to solicit his considered view. As a result, on March 5, 1980, the E
Collector sent a letter to the State Government, stating ,(hat he had
no objection .to furnish the detenu with relevant documents.
As per letter, dated March 7, 1980, ihe Section Officer of the
;.,;;~ Home Department sent the releva:nrt documents runnill/g into 461
..;• pages, to the detenu through the Superintendent, District Prison, F
Rajkot, by regis.tered ackoowledgemem.t due. The said documents
were received by the detenu on March 11. ·1980 at Rajkot. Thus,
after excluding the time taken in transit, there was a delay of 17
days in furnishing copies to ·the detenu.
",, Earlier, on February 1, 1980, Shri P. K Nair, Advocaite had G
addressed a letter to the Chief Minister of Gujarat asldng for
permi.ssion for an interview with the detenu to seek instructions
from him for drafting his representa1ion. On February 12, 1980,
the Secretary to Chief Minister ·wrote in reply to the Advocate, that
his request for having an .interview with the detenu was being looked
into by . Government iln the Home Department. This letter of the H
Advocate, according to the counter-affidavit filed by Shri Sbah, was
receiv.:d by him on February 30, 1980 through the Chief Minister's

;~-·. \
~·. J ' • .::,i

•
358 SUPREME COURT REPORTS [1981] 1 S.C.R.

A Secretariat. Qn February 20, 1980, the State· Government informed
the Advocate that his request for interview with the detenu had
been granted.
Mr. Soli Sorabji, appea11ing for the petitio~er, challenges the
validity of the detention on, ihese grounds:
B ll) There has been impermissible delay in furnishing copies
of the documents and statemems relied upon in the grounds of
detention.
(2) There was unreasonable delay of about 20 days in granting
interview lo the detenu with his lawyer, as a result of which, the
statutory right of the detenu under; rule 14 (xii) of the ·Gujarat
c Condition of Deten.tion (COFEPOSA) Order 1975 has been rendered
meaning1ess. The combined effect of these undue delays (Nos. 1
arid 2) is that the detem1 has been denied his constitutional right
to be afforded the . earliest opportunity of making an effective
represeillJtatjon against his detention., and thus there has .been a·
D violation of Articles 21 and 22 (!5) of the Constitution.
In support of Nos. (1) and (12), the learned counsel .has
referred to Khudi Ram Das(I); .Jayanaryan Sukul v. State of West
Bengal( 2); Madhav Hayawadanrao Hoskot v. State of Maharashtra( 1)·
.and Ramchandra A. Kamat v. Union ~f India & Ors.(4)
E (3) The counter-affidavit filed in iiesponse to the· rule nisi issued
by this Court, has not been affirmed by the detaining authority;
but by another officer, on the basis of information derived from the·
record, only.
· (4) Irrelevant matter has been taken into consideration.
F In reply to these contentions. Mr. Nain, appearing for the·
respondent-State has urged these points:
(a) (i) The 'grounds of detention' which were served on the·
deten;u simultaneously }with the order Olf dfltention, were elaborate
and full and ))ad apprised the detenu of all the information necessary
for 1making an effective representation against his detentioo. "Grounds
G of detention", as held by this Court in State of Bombay v. Atma·
Ram Sridhar Vaidya( 5), iq. Article 22 (5) means only 'conclusions
of facts' and not all the evidence or factual details considered by the·
(I) [1975] 2 S.C.R. 832.
(2) [1970) 3 S.C.R. 225.
H (3) [1979] I S.C.R. 192.
(4) [1980] 2 S.C.R. 1072.
(5) [1951) S.C.R. 167.
HASMUKH v. GUJARAT (Sarkaria, J.) 359

detaining authority ill1 passing the impugned order. What Article
22 (5) obligates is that the 'grounds of detention' should be communi·
cated to the detenu at the earliest. This constiJt:utional obligation
was fully discharged when the elaiborate grounds of detention
containing the substance of all the material facts. were served on the
detenu.
B
(ii) In these circumstances, the detenu had no further cons-
titutional right to be supplied with the details and sources of the
information on which the order of detention was passed. Reference
has also been made to Vakil Singh v. State of Jammu & Kashmir.( 1)
(b) The detenu as is apparent from the grounds of de,tention
is engaged in smuggling activity in a big way. having international c
..,4. ramifications. Investigations were going on to unravel the entire
gang of international smugglers in league with the detenu. The
detaining authority had, therefore, to consider as to whether the
disclosure of this infonnation asked for by the detenu, at that stage,
would not be detrimental to public interest, and. if so, whether it
would be in the public interest to invoke Article 22 (6) of the D
Constitution to withhold the copies asked for by the d~tenu, for some
time. For this important purpose consultatfon with the Collector
who was supervising the investigations, was necessary. The docu·
ments of which the copies were asked for, also run into seyeral
hundred pages. If these inter-departmental consultations, prepara- E
tion and despatch of the copies took 17 days, . in a case where the
detenu has been indulging in smuggling activity of this magnitude,
the delay in supplying the copies was neither inordinate, nor unreaso-
nable. Reference.has been made to the counter-affidavit filed on behalf
of respondents 1 and 2.
(c) The period of delay in allowing the detenu to interview
his lawyer, was of no consequenoe. First, Article 22 in terms,
denies. to the detenu the right to consult a lawyer or to be defended
· by a counsel of his chloice. This conceissio:u has, hDwever, been
conceded by the State Government under rule. 14 (xii), and there
also, it is not an indefeasible right as it is contingent ,upon the grant
G
of permission by the State Government. There is a di'stinctioii.
'.!Jetween a, constitutional right and a de\l'easible statutory ifight.
Delay in grant of the interview with the lawyer in no way affects
the constitutional· right of the detenu to make a representation.
Secondly, no written request for supply of copies of the documents,
prior to February 18, 1980 had been received from the detenu anci e
the lawyer's request for interview with the detenu was granted on
(1) A.1.R. 1974 S.C. 2337..
I '

360 SUPREME COURT REPORTS f1981J 1 S.C.R.

A Februariy 20, 1980. The time taken for considering the lawyer's
request for interview cannot be combined with or added to the
period taken for supply of the copies.
(d) Lastly, the delay in supply of copies or in grantiing the
interview with the lawyer did not in any way prejudice the detenu.
B The copies were demanded and the interview with the lawyer were
sought, professing that these were required for the purpose of
making an effective representation. But this professed purpose was
merely a /pretence because the copies were n'either. necessary, :t1fO!r
intendoo to be used for any such purpose. Despite the grant of these
. twin requests and the despatch of the copies ,'.on March 7 and their
c receipt on March 17, the detenu never filed any representation,
although the Advisory Board was ;to meet shortly thereafter on
March 24, 1980. Instead. he rushed t.o this Court and filed the
writ-petition on March 17. 1980. This conduct of the detenu
i~ not making any representation, despite opportunity, shows that
no prejudice has been caused to hlm merely by the fact that the
D
copies were despatched to him after 17 days of receiving his request.
(e) Under the statute even "grounds" \ of detention can be
communicated to the detenu, in exceptional cases within 15 days
of the detention. If the "grounds" communicated within the
prescdbed p·~riod are elaborate then supply of further particulars
E only two days after the expiry of the fifteen days period prescribed
fo~ communicating the "grounds" in exceptional cases, cannot be
said to be unreasonably belated.

Contentions 3 and 4 canvassed by Shri Sorabji need not detain
us. Shri Nain has produced fof the perusal of the Court the
original official record from which it i.s clear that the detention order ·~
\
was passed by the Home Minister. It was authenticated and issued
under the Rules of Business by Shri P. M. Shah, Deputy Secretary,
Home Department (Special) who has sworn the counter-affidavit in
thls case. No personal mala fides are alleged against the Minister.
It was, therefore. not necessary for the Minister to file the counter
G
himself. Contention 3 is, therefore, overruled.

What the learned counsel characterises as "irrelevant" matter
incorporated in the grounds of detention, are really introductory
facts or history of ihe case. We, therefore, negative -contention 4,
also.
iff
Indeed, the main arguments of the learned counsel are Nos.
(1) and (2) that there has been unreasonable delay in supplying the
:·-~- -;.

HASMUKH v. GUJARAT (Sarkaria, ].) :161

copies of the material documents and statements relied upon or A
referred to in .the grounds of detention. To appreciate these conten.·
tions, it is necessary to have a clear id~ of the import and scope
of the expression 'grounds' used in the context of 'detention' in
Article 22 (5) of the Constitution and in sub-section (3) of Section
3 of COFEPOSA. A democratic constituti!on is not to be inter-
preted merely from a lexicographer's angle but with .the realisation B
that it is an embodiment of the living thoughts and aspirations of
a free pe0ple. "A constitution" said Benjamin Cardozo, "states or
ought to state not rules for the passing hour, but principles for an.
expanding fllture". The concept of "grounds'', thferefore, bas to
receive an interpretation which will keep it meaningfully in tune
with . the contemporary notions of liberty and fundamental freedom
c
·guaranteed in Articles 19 (!), 21 and 22 of the Gonstitution. It
is not necessary to notice all the numerous cases in which this
expression in the context of Article 22 (i5) has come up for consider-
ration. It will suffice to make a brief reference t.o a few of them
which &Te in point. In Galam v. The State of West Bengal('). D
this Court held that in the context of Article 22 (5) 'grounds' does
not merely mean a recital or reproduction of a ground of saitisfaction
of the authority in the language of Section 3 of the Act; nor is its
connotation restricted to a bare statement of conclusions· of fact.
It means something more. That 'something' is the factual consti-
tuent of the 'grounds' on. which the subjective sati'sfaction of the
authority is based. This decision was approved by a larger Bench
in Khudiram Das v. West Bengal, ibid, wherein Bhagwati, J.
speaking for the Court, said : "The constitutional imperatives
enacted in Article 22 (5) 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 th:e girounds oru which thq F
order has been made; and (ii) the detailning authority must afford
the detenu the earliest opportunity of making a re{J1"esentation against
the detention order. These are the barest minimum safeguards
which must be observed before an executive authority can preventively
detain a person". It was explained that 'grounds' under Article
G.
22 (5) mean all the basic facts and materials on which the order
of detention is based, therefore, all the basic facts and materials
which influenced the detaining authority in making the order of
detention, must be communicated to the detenu. It was further
clarified that such "basic facts and materials" would be different
from "other partik:ulars" spoken of in sub-section (3) 'of Section 3 H
of M.I.S.A.
(J)W.P. No. 270 of 1974, decided on 12th September, 1974.
362 SUPREME COURT REPORTS [19811 1 S.C.R.

A Earlier, in · Prabhu Dayal Deorah etc. v. District Magistrate,
:Kamrup & Ors.(1), Mathew, J., speaking for the majority, eluci-
. 'ctated the position, thus:
"The detenu has a dght under Article 22 (5) of the
Constitution to be afforded the earliest opportunity of making
B. a representation against the order of detention. That constitu-
tional right includes within its compass the right to be furuished
with adequate particulars of the grounds of detention order." ;
From these decisions it is clear that wlllle the expression "grounds"
in Article 22 GS), and for that matter, in Section 3 (3) of the
COFEPOSA, includes not only conclusions o~ fact but also all the
c 'basic facts' on which those conclusions are founded, they are
different from subsidiary facts or further particulars of the basic
facts. The distinction between "basic facts" which are essential
factual constituents of the "grounds" and their further particulars
or subsidiary details is important. While the "basic facts" being
integr.al part of the "grounds" must, according to Section 3 (3) of
COFEPOSA "be communicated to the detenu, as soon as may be,
after the detention, ordinarily not later th:an five d!JYS, and iln.
exceptionai circumstances and for reasons to be recorded in writing,
not later than 15 days• from the date of detention", further particulars
oli those grounds, in compliance with the second constitutional
E imperative spelled out from Article 22 (5) in Khudi Ram's case, are
required to be communicated to the detenu, as soon as may be
practicable, with reasonable expedition. It follows, that if in a
case the ·so called "grounds of detention" communicated to the
detenu lack the basic or primary facts on wliicli the conclusions of
fact stated therein are founded, and this deficiency is not made good
F and communicated to the detenu within the period specified in
Section 3 (3), the omission will be fatal to the validity of the deten-
tion. If. however, the grounds communicated are elaborate ar:d
contain all the "basic facts" but are not comprehensive enough to
cover all the details or particulars of the "basic facts'', such parti-
culars, also ,must be supplied to the detenu. if asked for by him,
wjth reasonab~e expedition, within a reasonable time. What is
"reasonable time conforming with reasonable expedition'', required
for the supply of such details or further particulars, is a question
of fact depending upon the facts and circumstances of tire parti-
cular case. In the circumstances of a giveri case, if the time taken
H for supply of such additional particulars, exceeds marginally, the
maximum fixed by the stafote for communication of the grounds
(1) A.I.R. 1974 S.C. 183.
HASMUKH v. GUJARAT (Sarkaria, J.) 363

it may still be regarded "reasonable", while in the facts of another A
case, even a delay whtch. does not exceed 15 days, may be unjustified,
and amount to an infraction of the second constiutional imperative
po.inted out in Khudi Ram's case (Supra).
· In the instant case, the grounds supplied to the detenu were
elaborate and fatll and contained all the "basi:c facts'', although B
they did not . set out all the details or particulars of those "basic
facts" relied upon or referred to therein. There was thus no breach
of the first constitutional imperative embodied in Article 22 (5).
The short question, therefore, for consideration ils: Was the period
of 17 days (exclusive of the time taken for communication in transit)
for the supply of the further, particulars of the basic facts to the c
detenu "unreason.able" in the circumstances of the case ? In the
instant case, several causes contributed to tbi's "delay". Firstly,
this js a case in which the detenu was, ac.cording to the allegations
in the g;r.ounds of detention an.d the aveaments in1 the counter-
affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the
· Government of Gujarat, indulging in smuggling out silver from D
India and exporting it to the gulf countries in a big way. This
silver. which _was the subject of this illegal activity, Wias of huge
value. The smuggling activity attributed to the detenu had inter-
n:ational ramifications. The Collecto!r of Customs was supervising
the investigations that were going on at several places, in several
E
countries, to uneart'h and detect all the persons who were involved
in this large scale organised smuggling of international dimensions.
~t was, th[erefore, not unreasonabJe fuI'I thtj detaining auth:ority to
consult the Collector of Customs as to the possible detrimental
effect of the supply of the copies, at that stage, on the investigations
which were still going on. Such 1: a query from or consultations
F
with the Collector was necessary, to enable the detaining authority
to . make up its mind as to whether ·or not, it would be advisable
to withhold i;ru the public interest the supply of the copies asked
for by the detenu or any part thereof under Article 22 ~6). Indeed,
at one stage, the Collector wrote back that the supply
I
of the copies,
at that stage, would be detierimental to the investigations which G
were in pr<)gress and it also might endanger the safety of the
witnesses and informants. The Government, therefore, summoned
' the Collector and discussed the matter at a high level meeting and
then directed the Collector to supply the copies. Secondly, the
documents or statements of which copies were sought covered more
than 461 pages. Preparation of such a bulky record could be time H
consuming, if the aid 0£ some appliance like the' ZEROX machine
were not available to prepare the copies by mechanical -process.
364 SUPREME COURT REPORTS l198ll 1 S.C.R.
I
A The third reason for delay-which is in the nature of an
explanation-given by the respondent is that it has not caused
any p~ejudice to the right of the detieinu to make an effective
representation, since the grounds of detention communicated to him
were elaborate and full. Indeed, in the counter-affidavit an alter-
native stand taken by the respondent is, that the detaining autho-
B rity was not under any constitutional or statutory obligation to
supply copies of these additional materials because the ground~
communicated to the detenu were elaborate. Shri Nain has also
tried to support this reasoning.
In view of the law enunciated in Khudi Ram's case, ibid, .thi~
c stand taken by the respondent is utterly unsustainable.
Be that as it may, in the totality of the circumstances of this
present case we do not think that the period of about 17 days
taken in considering the supply· of the copies was an unreasonab!y ·
long period which could amount to a denial of the detenu's right
D to make an effective representation. In considet'lng the reasonable-
ness or otherwise of the time taken in supplying the copies, the
circumstance that the· grounds of detention already communicated
to the detenu were very ella,borate and full is not altogether irrele-
vant. The copies were despatched to the detenu by regtstered
post on March 7, 1980 and were received by him on March 11, 1980
at Rajkot. The Advisory Board was scheduled to meet shortly
thereafter on March 24, 1980. Th.e detenu was also allowed by
an order, dated February 20, 1980, to be interviewed by his lawyer.
Although the GovernmeTut took more than two weeks to consider
the lawyer's request to interview the deteuu, the fact remains that .
this permission was granted only two - days after the despatch of
F. >the detenu's application for obtaining copies o:f the additional
documents or materials. In spite of the grant of the detenu's
lawyer's request · for interview with his client and the supply of
the cop)es, the detenu did not make any representation to the
detaining authority or for the consideration of tbe Advisory Board.
This is also a relevant circumstance to be taken into account for
G determining whether the delay in supplying the copies, has, in fact,
prejudiced the detenu's right to make a speedy and effective
representation.
According to the petitioner his lawyer by a letter, dated
February 1, 1980. sought an interview to enable him to draft his
H representation. But no application for obtaining copies of the
material documents had been made by the detenu till February
15/18, 1980; when it was put in a course of communication to the

.. l
HASMUKH v. GUJARAT (Sarkaria, J.) 365

Government, while permission for interview with the lawyer was A
granted on ·the 20th February.
In short, on a consideration of all the circumstance of this
• particulars case, we are of opinion that the detay of 17 days in
question, was not so unreasonable as to amooot to an infraction of
the constitutional imperatives in Article 22 (5) of the Constitution. B
These, then, are the reasons in support of our order, dated
May 9, 1980 by which we dismissed the writ petition.

S.R. Petition dismissed.

3-647 S.C. Jndia/80