Holding

The detaining authority's failure to furnish the required statements and documents with reasonable expedition makes the detention not in accordance with law, rendering it invalid.

Summary

Ramchandra A. Kamat was detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and arrested on 5 September 1979. He sought to make a representation against his detention but was denied copies of the statements and documents referred to in the grounds of detention, despite repeated requests by his counsel. The detaining authority delayed furnishing the documents until 26-29 September 1979, causing an unreasonable delay in the representation process. The Supreme Court held that the authority must provide such documents with reasonable expedition to enable an effective representation, and that failure to do so renders the detention procedurally invalid. Consequently, the Court ordered Kamat's release, allowing the petition.

Issues considered

Whether the detaining authority's delay in providing copies of statements and documents referred to in the grounds of detention violates the procedural requirements of the Conservation of Foreign Exchange Act and the detainee's right to make an effective representation.
Whether the detaining authority is obligated to furnish copies of all documents relied upon in the grounds of detention upon the detainee's request.
Whether the detention is invalid because the procedural safeguards under the Act and Article 32 of the Constitution were not complied with.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
Constitution of Indias. Article 32

Subjects

detentionforeign exchange actright to representationprocedural fairnesshabeas corpusArticle 32detaining authoritydocument productionfundamental rights

Judgment

1072

A RAMCHANDRA A. KAMAT
v.
UNION OF INDIA AND ORS.
February 20, 1980
[S. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.]
Conservation of Foreign Exahange and Prevention of Smuggling Activittes
B Act 1974, Section 3-Delay by detaining authority in furnishing copies of
statements and documents referred to in the order of deten(ofV-Detention
whether viJiared.
The petitioner was directed to ·be detained by an order dated1 August 31 1
1979 under section 3(1) of the Conservation of Foreign Exchange :ind Pre-
vention of. Smuggling A.ctivities Act, 1974 and in pursuance thereof was
arrested on September 5, 1979. He was served with the grounds of detention
c on the same day. The petitioner's advocate wrote a letter dated September 7,
1979 to the detaining authority-second respondent stating that it was not
possible to 1nake an effective representation without the copies of statements
and documents referr'ed to in detention order. The detaining authority did not
take any action on the letter but forwarded it to the Deputy Secretary tv the
Government of India who by a oommunication dated September 10, 1979
acknowledged its receipt ,arut requested the advocate to contact the Deputy
D Director, Directorate of Enforcement, Bombay regarding the· supply of copies of
statements and documents. As no further communication was received, the
advocate addressed a letter da.ted September 14, 1979 to the Deputy Direct.or
to supply him copies of the statements and documents. The Deputy Director
in his communication dated September 22, 1979 requested the advocate to see
him on September 24, 1979 to take inspection of the documents. On insp~ct-
ing the docun1ents the advocate was not satisfied and insisted on supply of
E copies of docun1rnts, Which were supplied on three days, September 26, 1979,
September 28. 1979 and September 29, 1979. On October 5. 1979 the peti-
tioner made his representation a.gainst the detention.
In the writ petition, it was contended on behalf of the petitioner that as
there was unrcas.onab1e delay in furnishing of the statements and documt:nts
referred to in the grounds of detention and the right to make an effective J
P representation \WlS denied, the detention could not be said to be according to
the procedure prescribed by law. On beha·lf of the detaining authority it wc:s
contended rhat the constitutional right of the p'etitioner to make an effective
representation had not been infringed and that it was not incumbent upon the
detaining authority to supply copies of all documents relied up0n in ~he grounds
of detention and that the grounds of detention were sufficiently det.aileJ Si) as
to enable the petitioner to make an effective representation against the deten-
G lion.
Allowing the petition,
HELD : 1. The detaining authority failed to act with reasonable expedi~
tton in furnishing the statements and documents referred to in the gr')unds of
detention. The detention is therefore not in accordance with the proc·l;!ctu1e
contemplated under law, and the continued detention is not warranted.
H [1077Gl
2. It is r.ettled law that the 34>PJYJpriate authority is bound to give s.n opnor-
tunity to the cletenu to make representation and to consider the representation
RAMACHANDRA A. KAMAT v. UNION (Kailasam, !.) 107 ,J
•
of the detenu as early as possible. There should not be any delay in .the A
matter of consideration. [ 107 4G]
Jayanarayan Sukut v. Shue of West Bengal, [1970] 3 SCR 225, referred to.
3. (i) The right to make a representation is a fundamental right. The
representation thus made should be considered expeditiously by the Government.
In order to make an effective representation, the detenu is entitled to obtain
information re~ating to the grounds nf detention. When the grounds uf deten-
tion are served on the detenue he is entitl'ed to ask for copies of the state-
ments and documents referred to in the grounds of detention to enable him
to make- an effective representation. When the detenu makes a request for
•
such documents, they should be supplied to him expeditiously. [!075E]
(ii) When the Act contemplates the furnishing of grounds of detention
within five days of the order of detention, the intention is clear that the state·
ments and dncurr1ents which are referred to in the grounds of deteution and
\vhich are required by the d'etenu should be furnished with reasonable expedi..
0
tion. [1076B]
4. If chere is undue delay in furnishing the statements and documw.t&
referred to in the grounds. of detention the right to make an effe\:tive repre-
sentation is denied. It is the duty of the detaining authority to satisfactorily
explain the delay, if any, in furnishing of the documents. [1076A, 1075G]
5. It m<1oy not be n'ecessary for the. detaining authority to supply copies of D
the documents relied upon in the grounds of detention at the time when the
ground are furnished to the detenu but once the detenu states that for
effective represe.ntation it is necessary that he should have copies of the t>tate--
ments and documents referred to in the grounds of det'ention it iS the duty
of the detaining £Juthority to furnish them with reasonable expedition. The
detaining authority cannot decline to furnish copies of the documents on the
ground tha.t the grounds were sufficiently d'etailed to enable the petitioner to E
make an effective representation. [1077D-E]
ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 1323 of 1979.
(Under Article 32 of the Constitution.)
Ram Jethama/ani and Harjinder Singh and M. M. Lodha for the
Petitioner. F
U. R. LaUt, A. V. Rallgam and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
KAILASAM, J.-Th~ Petitioner Ramchandra A. Kamat has preferred
this petition under Art. 32 of the Constitution of India praying for the
issue of writ of Habeas Corpus directing his release by quasting the
G
order of his detention da'ed 31-8-1979 passed by second respondent,
Additional Secretary to the Government of India, Ministry of Finance.
The petitianer was directed to be detained by an order dated 31st
August, 1979 under S. 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Ac'.ivities Act, 1974. In pursuance of
the order, the petitioner was arres'.ed on 5-9-1979. He was served H
with the grounds of detention on the same day. The Petitioner
through his advocate by a letter dated 7-9-1979 wrote to the s~cond
1074 SUPREME COURT REPORTS (1980] 2 ;; C.R.
'
A respondent stating that it was found that the detaining authonty rclkd
upon a number of statements of various persons including the dctenu
as well as documents referred to in the grounds, but the detenu was
not furnished with the copies of the same. The Advocate stated that
detenu desires to make a representation against the order of detention
but found that without the copies of documents referred to in the
• grounds of detention order it is not possible to make an efbctive re-
presentation. A reply to his letter was sent to the Advocate by Mr.
Thawani, Deputy Secretary to the Government of India, wherein he
acknowledged the receipt of the Jetter of the Advocate dated 7-9-1979. '._ ~
By this Jetter the Deputy Secretary requested the Advocate to contact '
the Deputy Director, Directorate of Enforcement, Bombay, who it was ·
c stated, had been suitably advised regarding supply of copies of state-
ments and documents, relied upon in the detention order dated
31-8-1979. It may be noted that the detaining authority, the second
respondent did not acknowledge the Jetter from the detenu's advocate
or take any action by himself but directed the Deputy Secretary to
D address the communication dated 10-9-1979 referred to above. Though
the letter states that the Deputy Director, Bombay has been suitably
advised regarding the request for supply of copies of statemen's and
documents relied on in the detention order nothing further was done by
the Deputy Director of Enforcement, Bombay. On the 14th Septem-
ber, 1979, the advocate not having received any communication,
E addressed a let~cr to the Deputy Director enclosing a copy of the :etter
which he received from the Deputy Secretary and requested the Deputy
Director to supply him on behalf of his clien: copies of the relevant
statements and documents referred to and relied upon in the order of
detention at an early date. In reply to the letter of 14·9-i9 by the
Advocate, the Deputy Director in his communication dated 22-9-1979 -~
F requested the advocate to see the Deputy Director on 24-9-1979 at
1430 hours to take inspection of the documents. On inspe~ting the
documents the advocate was not satisfied and insisted on supply of
copies of documents and ultimately copies were supplied on 3 days,
namely, on 26-9-79, 28-9-79 and 29-9-79. The representation was
made by the detenu on 5-10-79.
G
It is settled law that the appropriate authority is bound to give an
opportunity to the detenu to make representation and to consider the
representation of the detenu as early as possible. There should not be
any delay in the matter of consideration.
The Constitutional Bench of this Court in Jayanarayan Sukul v.
H State of West Bengal(') has held that the fundamental right of the
detenu to have representation considered by the appropriate Govern-
(!) [1970] 3 S.C.R. 225.
go~ - '13. Trv1

RAMCHANDRA A. KAMAT v. UNION (Kailasam, J.) I 075

me'nt will render meaningless if the Government will not deal with the A
matter expeditiously. The Court observed :
"It is established beyond any measure of doubt that the
appropriate authority is bound to consider the represema-
tion of the dctenu as early as possible. The appropriate
Government itself is bound to consider the representation as B
expeditiously as possib:e. The reason for immediate consi-
deration of the representation is too obvious to be stressed.
The personal liberty of a person is at stake. Any delay
would not only be an irresponsible act on the part of the
appropriate authority but also unconstitutional because the
Constitntion enshrines the fundamental right of a detenu to c
have his representation considered and it is imperative that
when the liberty of a person is in peril immediate action
should be taken by the relevant authorities.
The same view has been expressed by this Court in a 'number of
cases vide See_rvai's Constitutional Law of India, Vol. I, page 542.
paragraph 12.82. D
The right to make a representation is a fundamental right. The
representation thus made should be considered expeditiously by the
Government. In order to make an effective representation, the detenu
is entitled to obtain information relating to the grounds of detention.
When the grounds of detention are served on the detenu, he is entitled
to ask for copie« of the statements and documents referred to in the
grounds of detention to enable him to make an effective representation.
When the detenu makes a request for .such documents, they should be
supplied to him expeditiously. The detaining anthority in preparing
the grounds would have referred to the statements and documents
relied on in the grounds of detention and would be ordinarily available F
with him-when copies of such documents are asked for by the detenu
the detaining authority should be in a position to supply them with
reasonable expedition. What is reasonable expedition will depend on
the facts of each case.
It is alleged by the detenu that there had been unreasonable dela)
G
in furnishing of the statel)lents and documents referred to in the
grounds of detention. It is the duty of the detaining authority to
satisfactorily explain the delay, if any, in furnishing of these docu·
ments. We arc in this context not referring to the statements and
documents not referred to in the grounds of detention for it may be
that they are no: in the possession of the detaining authority and that H
reasonable time may be required for furnishing copies of the relevnnt
documents, which may not be in his possession.
1076 SUPREME COURT REPORTS [1980] 2 s.c.R.

A If there is undue delay in furnishing the statements and documents
referred to in the grounds of detention the right to make effective re-
presentation is denied. The detention cannot be said to be according
to the procedure prescribed by law. When the Act contemplates the
furnishing of grounds of detention ordinarily withi'n five days of the
order to de~"ntion, the intention is clear that the statements and docu-
B ments which are referred to in the grounds of detention and which
are required by the detenu and arc cX]l"'Cted to ln in possession of the
detaining authority should be furnished with reasonable expedition. . ~-
It will have to be considepod on the facts of the case whether there "·
was any unexplained delay in furnishing the statements and documents ·
c relied on in the grounds of detention. The detenu was arrested on
5-9-1979 and his advocate by a letter dated 7-9-1979 Annexure 'C'
to tJix writ petition wrote to the detaining authority stating that for
making an effective represe'ntation, he must have copies of statements
and documen'.s referred to in the detention order. He prayed that
the copies of the statements and documents may be furnished to him.
p This letter was received by the detaining authority on the 10th of
S"ptember, 1979 and a communication was addressed 'not by the
detaining authority but by Mr. Thawani, Deputy Secretary on the
same date. It is not clear whether the detaining authority applied his
mind and realised the necessity for furnishing of the docurll'"nts to the
detenu expeditiously. The communication was addressed by the
Deputy Secretary to the Advocate of the detenu informing him that
the Deputy Director of Enforcement at Bombay had been suitably ad-
vised regarding the request for supply of copies of statem"nts and
documents relied on in the detention order. One would have expected
that the detaining authority or the Deputy Secretary acting on his . ,
behalf, to hav::o directed the Deputy Director of Enforcement, Bombay ~
F
to furnish the necessary documents expeditiously to the Advocate as
requested or to the detenu himself. The direc'.ion in the communica-
tion from the Deputy Secretary was not immediately complied with.
The Advocate for the detenu wrote again on the 14th September, 1979
reminding the Deputy Director of the communications, he had received
G from the Deputy Secretary. The Advocate requested that the copies
of the relevant statements and documents referred to and relied upon
in the detention order may be supplied to him. This letter was replied
by the Deputy Director on the 22nd September, 1979 in which the
Advocate was asked to have inspection of the documents i'n his pre-
mises between 1430 hours on 24-9-1979. The copies of the sPatements
H and documents requested by the Advocate for the detenu and directed
by the Deputy Secretary to be furnished to the Advocate were not
furnished to him instead the Deputy Director asked tho Advocate to
RAMACHANDRA A. KAMAT v. UNION (Kailasam, J.) I 077

have inspection at the Deputy Director's office. After inspecting the A
documents on 22/24/25-9-1979, he insisted of having copies which
were supplied on the 26th, 27th and 28th of September, 1979.
The explanation given by the detaining authority regarding tte
delay in furnishing copies as seen in his counter affidavit is that the
, constitutional right of the petitioner to make effective representation had B
not been infringed. According to the detaining authority "it was not
incumbent upon the detaining authority to supply copies of all the
documents relied upon in the grounds of detention to the petitioner
alongwith the grounds within 5 days of detention as petitioner has
contended. In this context it would be relevant to state that the
grounds were sufficiently detailed so as to enable the petitioner to make c
an effective representation against the detention." He further stated
that all steps were taken to comply as expeditiously as possible. It
may not be necessary for the detarning authority to supply copies of
all the docum.ents relied upon in the grounds of detention at the time
when the grounds are furnished to the detenu but once the detenu
states that for effective representation it is necessary that he should D
• have copies of the statements and documents referred to in the grounds
of detention, it is the duty of the detaining authority to furnish them
with reasonable exp"'-dition. The detaining authority cannot decline to
furnish copies of the documents on the ground that the grounds were
sufficiently detailed to enable the petitioner to make an effective re-
E
presen'ation. In this case, the detaining authority should have taken
reasonable steps !o provide the detenu or his advocate with the. state-
ments and documents as early as possible. The reply to the detenu
was not sent by the detaining authority and it is not clear whether be
appreciated the necessity to act expeditiously. As noted already, a
communication was sent by the Deputy S'cretary to the Deputy F
Director, who did not comply with the direction and furnish copies otl
the statements and documents. After a lapse of 12 days i.e. on
22-9-1979, the Deputy Director offered inspection.
Taking into account the facts and circumstances of the case and
explanation furnished by the detaining authority, we are of the view
G
that the detaining authority failed to act with reasonable expedifon in
furn;shing the statements and documents referred to in the grounds of
detention. On the facts of the case, therefore, we are satisfied that
the detention is not in accordance with the procedure contemplated
under law. The continued detention is not warranted. The order of
liis release has already been issued by this Court.
H

N.VK. Petition allowed.