SHALINI SONI Vs. UNION OF INDIA

JUDGEMENT

(1.) By our orders dated October 7, 1980, we directed the release of the three detenus whose detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was challenged in these three writ petitions. We now proceed to state our reasons.

(2.) Rajesh Soni, the detenu in Criminal Writ Petition No. 4344 of 1980 was arrested on June 27, 1980. The order of detention as well as the grounds of detention were served on him on the same day. On July 27, 1980, his Advocate addressed a communication to the Administrator, Delhi Administration, Delhi, alleging that the grounds were vague, irrelevant and non-existent, that his client was unable to make any representation as he had not been given copies of the statements, documents and materials relied upon by the detaining authority in arriving at the satisfaction that Rajesh Soni should be detained, that in view of the time limit prescribed by Sec. 3 (3) of the COFEPOSA and in view of Art. 22 (5) of the Constitution the continued detention of his client was illegal and that he was entitled to be release forthwith. Reference was made to a judgment of the Gujarat High Court where it had been held that if documents were not furnished within five days or fifteen days, as the case might be, the detenus were entitled to be released. It was further stated that if the Administrator was not revoking the detention order, copies of documents and material evidence relied upon in the grounds of detention should be forthwith supplied so as to enable the detenu to make a representation. The communication ended with a reiteration of the request that the detention order should be revoked and the detenu released forthwith. One of the main complaints of the learned counsel for the detenu was that the representation dated July 27, 1980 made by the detenu through his Advocate was never considered by the Administrator and no orders had been passed thereon till now. Copies of the documents were, however. furnished on August 6, 1980. Meanwhile the Advisory Board met on July 30, 1980. The order of detention was confirmed by the Administrator on August 9, 1980. Another complaint of the learned counsel for the detenu was that there was a delay of over one month in furnishing copies of documents which formed part of the grounds to the detenu and on that ground also the detention was vitiated. The learned counsel invited our attention to several judgments of this Court and in particular to a recent one of Bhagwati and Venkataramaiah, JJ. in Icchu Devi Choraria v. Union of India, W. P. No. 2030 of 1980 decided on 9-9-1980.

(3.) The answer of the respondents to the challenge based on the failure to consider the representation dated July 27, 1980 was that the communication dated July 27, 1980 was not a representation at all but was a mere request for copies of documents and therefore the detention could not be questioned on the ground of failure to consider the detenu's representation. The answer to the challenge based on the delay in furnishing copies of documents was that the detaining authority was not obliged in law to furnish copies of documents relied upon in the grounds of detention. All that the detaining authority was obliged to do under the law was to communicate to the detenu all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction and that obligation had been discharged in the present case. The learned counsel urged that the view taken by Bhagwati and Venkataramaiah, JJ. in Icchu Devi Choraria v. Union of India AIR 1980 SC 1983) was inconsistent with the view taken by this Court in a series of cases and that the judgment required reconsideration.