Smt. Jyoti Rajeev Agarwal vs The Union Of India (Uoi), Through ...
2002 Latest Caselaw 82 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes herself as the wife of the detenu Rajeev Agarwal s/o. Sanwarmal Agarwal has challenged the order dated 16.8.2001 passed by the 2nd Respondent Mr. Som Nath Pal, Jt. Secretary to the Government of India, Ministry of Finance, Department of Revenue, 'B' Wing, 6th floor, Janpath Bhavan, Janpath, New Delhi 110001, detaining the detenu under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), hereinafter referred to as C.O.F.E.P.O.S.A. Act'.

The detention order alongwith the grounds of detention, which are also dated 16.8.2001, was served on the detenu on 10.9.2001 and their true, copies are annexed as Annexures 'A' and 'B' respectively to this petition.

2. The prejudicial activities of the detenu prompting the 2nd respondent to pass the impugned order are contained in the grounds of detention (Annexure 'B').

Since in our judgment a reference to them is not necessary for the adjudication of grounds 5(ii)(a), 5(ii)(b) and 5(ii)(c) pleaded in the petition, on which grounds, in our view this petition deserves to succeed, we are not adverting to them.

3. We have heard learned Counsel for the parties.

Ground 5(ii)(a) in sum and substance reads thus:

Ordinarily the grounds of detention are required to be served on the detenu within a period of 5 days from the date of service of the detention order on the detenu, but in no case later than 15 days from the date of service of the detention order on the detenu. It has further been pleaded in the said ground that documents and the material on which the grounds of detention are founded are required to be served on the detenu pari pasu, i.e., together.

Ground 5(ii)(b) in sum and substance reads thus:

In the instant case although the detention order and the grounds of detention were served on the detenu on 10.9.01, but the documents on which the grounds were founded were not served on the said date, but instead were served two days later, i.e., on 12.9.01.

Ground 5(ii)(c) in sum and substance reads thus:

Since the documents on which the grounds were founded were not served on the detenu alongwith the grounds of detention there was no valid service of the detention order on the detenu in the eyes of law and consequently the impugned order is rendered mala fide and ab initio null and void.

4. Mr. Maqsood Khan, learned Counsel for the petitioner, emphatically urged that since the expression grounds of detention used in Article 22(5) of the Constitution of India does not merely mean factual inferences but also includes the factual material which led to such factual inferences and on 10.9.01 the detenu was only served with copy of the detention order and the grounds of detention and not the material or documents on which the grounds of detention were founded, there was non-communication of grounds of detention to him in terms of first facet of Article 22(5) of the Constitution of India and his fundamental right guaranteed by the first facet of this Article was violated. Mr. Maqsood Khan also urged that since the documents were only supplied to the detenu two days later, i.e., on 12.9.2001 the detenu's fundamental right guaranteed by the second facet of the said Article, of making a representation against the detention order at the earliest opportunity was also infracted.

5. Grounds 5(ii)(a), 5(ii)(b) and 5(ii)(c) have been replied to in para 5(ii)(a)(c) of the return of the Detaining Authority. In substance the reply therein is as under:

As per the information given by the Additional Director, DRI, Mumbai, the detenu surrendered before P.C.B.-C.I.D. (Prevention of Crime Branch - Crime Investigation Department) of the Mumbai Police, in the late evening of 10.9.2001, around 11 p.m.. The detention order and the grounds of detention were served on him on 10.9.01 itself. Since there was urgency of shifting him to Nasik Central Prison in accordance with the detention order and the relied upon documents were voluminous, running into 2500 pages, it was not practical to serve them on the detenu at the place of surrender. On 12.9.01, after the detenu has been lodged in Nasik Road, Central Prison; in the said prison, the said documents were served upon the detenu; his acknowledgement having been taken on each page. This exercise lasted an entire day. Considering the aforesaid circumstances the detention order, grounds of detention and relied upon documents have been served upon the detenu without any unreasonable delay and the service, as is manifest from the above, was a continuing process.

It has further been averred in the said paragraph that the grounds of detention and the relied upon documents are to be communicated to the detenu ordinarily not later than five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, not later than 15 (fifteen) days there from and since the documents were served on the detenu within five days of his detenion, the service was in consonance with the provisions contained in Section 3(3) of the C.O.F.E.P.O.S.A. Act.

6. Mr. R.M. Agarwal learned Counsel for the Respondent Nos. 1 and 2 urged that the decision rendered by the Supreme Court in the case of Icchu. Devi Choraria v. Union of India and Ors. , provides that the documents need not be furnished to the detenu along with the grounds of detention and ordinarily, so long as they are served upon him within five days from the date of his detention and in exceptional circumstances, for reasons to be recorded in writing, not later than 15 days from the date of his detention, his detention would not be vitiated. Mr. Agarwal made his submission on the passage reproduced below, contained in the said case. The said passage is contained in para 5(ii)(a-c) of the return of the Detaining Authority and reads thus:

There can therefore be no doubt that on a proper construction of Clause (5) of Article 22 copies of the (5) of the documents, statements and other material relied upon in the Grounds of detention should be furnished to the detenu along with the grounds of detention in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.

7. We have perused the averments contained in grounds 5(ii)(a), 5(ii)(b) and 5(ii)(c) of the petition, those contained in para 5(ii)(a)(c) of the return of the Detaining Authority wherein the said ground has been replied to and heard learned Counsel for the parties. We find merit in grounds 5(ii)(a), 5(ii)(b) and 5(ii)(c).

8. The Supreme Court in the oft-quoted case of Smt. Shalini Soni v. Union of India and Ors. , in paragraph 7, has held that...grounds in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the 'grounds'.

(emphasis supplied)

9. Article 22(5) of the Constitution of India provides thus:

22. Protection against arrest and detention in certain cases.-

(1) ....

(2) ....

(3) ....

(4) ....

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

A perusal of the aforesaid Article would show that the detenu has two distinct fundamental rights, namely:

(a) of being communicated by the Detaining Authority the grounds on which the detention order has been made against him;

(b) of being afforded by the Detaining Authority the earliest opportunity of making a representation against the order.

9A. Since the Supreme Court in Shalini Soni's case (supra) and in a plethora of other cases also, to which, to eschew prolixity, we do not intend referring to, has held that grounds include the material on which the grounds are founded, the documents on which the grounds of detention are founded would also constitute the grounds of detention, within the meaning of Article 22(5) of the Constitution of India.

And that being so, when on 10.9.01 only the bare grounds of detention and not documents on which the grounds of detention were founded, were furnished to the detenu, it cannot be said that grounds, within the meaning of Article 22(5) of the Constitution of India, were served on the detenu and that being so, the detenu's fundamental right of being communicated by the Detaining Authority, as soon as maybe, the grounds on which he was being detained, guaranteed by the first facet of Article 22(5) of the Constitution of India, would stand violated.

In our view, the second facet of the detenu's fundamental right, guaranteed by Article 22(5) of the Constitution of India, namely of making a representation at the earliest opportunity was also violated. In our judgment, the moment on 10.9.01 the detention order along with the grounds of detention was served on the detenu his fundamental right of making a representation at the earliest opportunity saw the light of the day, because the said material was the necessary constitutional pre-requisite for exercising it. Since it was furnished to him in a truncated form it rendered its exercise an empty formality. We make no bones in observing that the detenu could only effectively exercise it on 12.9.01, because on that date the documents on which the grounds of detention were founded were furnished to him.

10. Mr. R.M. Agarwal learned Counsel for respondent Nos. 1 and 2 strenuously contended that since under Section 3(3) of the C.O.F.E.P.O.S.A. Act grounds could be supplied to the detenu ordinarily within five days of the date of detention and in exceptional cases within 15 days, for reasons to be recorded in writing, therefrom, and admittedly in the instant case the documents were supplied to the detenu on 12.9.01, i.e., within two days of his detention, the impugned order of detention would not be vitiated in law. To fortify his submission he placed reliance on the passage quoted by us earlier in lcchu Devi Choraria's case, (supra). To repeat the said passage reads thus:

There can therefore be no doubt that on a proper construction of Clause (5) of Article 22 copies of the (5) of the documents, statements and other material relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.

11. We have reflected over Mr. Agarwal's submission and carefully perused the said passage. In our judgment it does not lay down the ratio that the grounds of detention and the documents on which the grounds are founded, can be furnished separately on the detenu. In our view, what it lays down is that they should be served together; ordinarily within five days from the date of detention and in exceptional circumstances, for reasons to be recorded in writing, within fifteen days therefrom.

12. In our view, there is no merit in Mr. Agarwal's submission.

13. In our judgment, it would have been perfectly permissible under Section 3(3) of the C.O.F.E.P.O.S.A. Act had the Officers only served on the detenu copy of the detention order on 10.9.01 and the grounds of detention along with the documents on which they were founded on 12.9.01. But we do not even have an iota of doubt in our minds that since the documents on which the grounds of detention are founded are grounds of detention, within the meaning of Article 22(5) of the Constitution of India, the Officers of the Detaining Authority could not have served the bare grounds of detention on 10.9.01 and the material on which they were founded on 12.9.01.

14. we may mention that the view which we have taken is founded on a number of decisions rendered by the Apex Court which were cited by Mr. Maqsood Khan, learned Counsel for the petitioner. To eschew prolixity, we are only referring to the following three decisions which have been rendered by a Bench of three Judges, they being:

(a) Ranjit Singh @ Ajit Singh v. State of Punjab and Ors. Criminal Writ Petition No. 281 of 1981, decided on 5.2.1981.

(b) Gurucharanbir Singh v. State of Punjab Criminal Writ Petition No. 96 of 1981, decided on 5.2.1981.

(c) Mangilal v. B.B. Gujral and Anr. Writ Petition No. 1598 of 1981 and 1599 of 1981, decided on 7.4.1981.

In all the three decisions, the ratio laid down by the Supreme Court is that the grounds of detention have to be served pari pasu alongwith the documents on which the grounds are founded and in case the same is not done the detenu has to be released forthwith.

15. We would be failing in our fairness if we do not refer to the decision rendered by the Apex Court in the case of Ibrahim Ahmad Batti v. State of Gujarat and Ors. , cited by Mr. R.M. Agarwal, learned Counsel for respondent Nos. 1 and 2. Mr. Agarwal invited our attention to para 10 of the said decision. He urged that a perusal of the said paragraph shows that it would be permissible to separately furnish to the detenu the grounds of detention and the documents on which the same are founded.

We have examined the said decision. Apart from the fact that it was rendered by a Bench of two Judges and the three decisions of the Supreme Court, to which we have referred to in paragraph 14, were rendered by a Bench of three Judges, we find that the said decision was a decision on its particular facts.

16. For the aforesaid reasons we find merit in grounds 5(ii)(a), 5(ii)(b) and 5(ii)(c) of the petition.

17. Before proceeding to the operative part we wish to make it clear that this Court zealously upholds fundamental rights in its jurisdiction guaranteed by Article 226 of the Constitution of India. And where it finds that they have been violated, it has no compunction in granting appropriate reliefs under law. It hardly matters to it that the victim is a detenu; detained under Section 3(1) of the C.O.F.E.P.O.S.A. Act. Even such a detenu can only be deprived of personal liberty in consonance with the procedure prescribed by Articles 21 and 22(5) of the Constitution of India. And when this Court finds that such a deprivation is in violation of the aforesaid procedure, it would have no reservation in quashing the detention order and directing the forthwith release of the detenu.

18. For the said reasons we allow this petition; quash and set aside the impugned order; direct that the detenu Rajeev Agarwal s/o. Sanwarmal Agarwal be released forthwith unless wanted in some other case; and make the rule absolute.

Certified copy expedited.