ICCHU DEVI CHORARIA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition for a writ of habeas corpus challenges the continued detention of one Mahendra Chordia under sub-section (1) of Sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act).

(2.) On 4th June, 1980 an order of detention dated 27th May, 1980 was served on Mahendra Chordia (hereinafter referred to as the detenu) and he was taken under detention. The order of detention recited that the Governor of Maharashtra was satisfied with respect to the detenu that, with a view to preventing him from smuggling goods and abetting the smuggling of goods, it was necessary to make an order directing him to be detained and by the order of detention the Governor of Maharashtra in exercise of the powers conferred under sub-section (1) of Sec. 3 of the COFEPOSA Act read with the Order of the President of India in the notification of the Government of India dated 17th February, 1980 directed that the detenu be detained under that Act, Simultaneously with the order of detention, another order dated 27th May was also issued by the Governer of Maharashtra directing that the detenu be detained in the Nasik Road Central Prison. When the petitioner was arrested and taken under detention, he was also served with a document dated 27th May, 1980 containing the grounds of detention as required by sub-section (3) of the COFEPOSA Act read with clause (5) of Article 22 of the Constitution. The grounds of detention referred to several documents and statements including two tape recorded conversations, one between the detenu and one Ahluwalia and the other between the detenu, Ahluwalia and an advocate by the name of Kumar Mehta. The detenu therefore addressed a letter dated 6th June, 1980 to the Deputy Secretary to the Government of Maharashtra requesting him to his earliest to sent "all statements documents and material" to enable him to make an effective representation against his detention. The detenu also sent a representation dated 9th June, 1980 to the Deputy Secretary once again requesting him to supply immediately the documents, statements and materials relied upon in the grounds of detention so that the detenu could make an effective representation and also specifically calling upon the Deputy Secretary to furnish the transcripts of the tapes as also to produce the original tapes for his inspection so that he could prove that the voice recorded on the tapes was not his. This representation was admittedly received by the Deputy Secretary on 14th June 1980. The detenu thereafter addressed another communication to the Deputy Secretary requesting him to supply one accurate copy of the tapes, so that he could have the tapes played in the presence of those who would recognise his voice, to enable him to lead evidence through them that the voice recorded on the tapes was not his as also to let him know on whose final satisfaction the order of detention was made. This letter though originally dated 14th June, 1980 was not despatched to the Deputy Secretary until 1st July, 1980 because in the meanwhile the detenu had been taken to Bombay and it was only after his return to Nasik Road Central Prison that the letter could be despatched through the jailor and hence the date was altered to 1st July, 1980. It appears that this letter was received by the Deputy Secretary on 8th July, 1980. But, prior to his forwarding the letter dated 1st July, 1980 to the Deputy Secretary, the detenu addressed another representation dated 26th June, 1980 to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary to the Government of Maharashtra praying for revocation of the order of detention. The detenu pointed out in this representation that, by his letters dated 5th, 6th and 14th June, 1980, he had requested for the tapes to be supplied to him to enable him to prove that the voice recorded on the tapes was not his and that this request had not been complied with and, in the circumstances, the hearing of the case before the Advisory Board would be futile. The detenu also complained in the representation that though he had asked for copies of the documents and statements relied upon in the grounds of detention, they had not been supplied to him. This representation containing the prayer for revocation of the order of detention was received by the Deputy Secretary on 30th June, 1980. Now it appears that copies of the statements and documents relied upon in the grounds of detention were forwarded by the Deputy Secretary to the Superintendent of Nasik Road Central Prison by registered letter dated 3rd July 1980 and these copies were handed over to the detenu on 11th July, 1980. Meanwhile, one Vikraman Investigating Officer of the Customs Department was deputed to the Nasik Road Central Prison along with the tapes and the tapes were played in the presence of the detenu and the Deputy Superintendent of Nasik Road Central Prison on 8th July, 1980. The representations of the detenu dated 9th June, 1980 and 26th June, 1980 were then considered by the Under Secretary on 11th July, 1980 and since in the meantime the letter dated 1st July, 1980 requesting for supply of one accurate copy of the tapes was received by the Government, the Under Secretary suggested, with reference to this request that "since the tapes were given to the detenu for inspection and played before him, the request for supply of copies of the tapes may have to be rejected" and he also recommended that the request of the detenu for revocation of the order of detention may be rejected. The Deputy Secretary approved the noting of the Under Secretary that the request for revocation of the detention order may be rejected and the file was immediately put up before the Secretary on the same day and the secretary also approved the proposal for rejecting the request for revocation of the order of detention but recommended that the Customs Department must give to the detenu the transcripts of the tapes, as otherwise he would take a stand in the Court that his defence was prejudiced. It appears that the Chief Minister endorsed the noting of the Secretary on 14th July, 1980. Pursuant to this decision of the Government, a letter dated 15th July, 1980 was addressed to the detenu rejecting his representations and declining to revoke the order of detention. It is difficult to appreciate what purpose could possibly be intended to be served by giving copies of the tapes to the detenu after rejecting his representations, but all the same, copies of the tapes were handed over to the detenu on 20th July, 1980. The detenu's mother in the meanwhile preferred the present petition in this Court and on 10th July, 1980 rule nisi was issued on the petition by this Court.

(3.) There were several grounds on which the detention of the detenu was challenged in the petition. But it is not necessary to refer to all the grounds since there is one ground which is, in our opinion, fatal to the continued detention of the detenu and it will be sufficient if we confine our attention to that ground. The contention of the petitioner under this ground was that though several statements and documents were relied upon in the grounds of detention and considerable reliance was also placed on two tape recorded conversations in the grounds of detention, the detaining authority did not serve on the detenu along with the grounds of detention, copies of those statements, documents and tapes and it could not therefore be said that the grounds of detention were duly served on the detenu as required by sub-sec. (3) of Section (3) of the COFEPOSA Act and clause (5) of Article 22 of the Constitution. The petitioner urged that sub-section (3) of Section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution required that the detaining authority should, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and such grounds would comprise not merely a bare recital of the grounds of detention but also all statements and documents relied upon in the grounds of detention, because these latter would also form part of such grounds. It was also contended by the petitioner in the alternative that, in any event, the detaining authority was bound to give copies of the statements, documents and tapes relied upon in the grounds of detention to the detenu without any avoidable delay in order that the detenu should have the earliest opportunity of making an effective representation against the order of detention. The argument of the petitioner was that, in the present case, though the detenu asked for the copies of statements, documents and materials relied upon in the grounds of detention as early as 6th June, 1980, the detaining authority did not supply copies of such statements, documents and materials until 11th July, 1980 and on that day also, what were supplied were merely copies of the statements and documents and not the copies of the tapes which were supplied only on 20th July, 1980. This delay in supplying copies of the statements, documents and tapes was, in the submission of the petitioner, wholly unjustified and the detenu was thus denied the earliest opportunity of making an effective representation and this infected the continued detention of the detenu with the vice of illegality. This ground of challenge urged on behalf of the petitioner appeared to us to be well founded and that is why, by an order dated 8th August 1980 immediately on the conclusion of the arguments, we allowed the petition and directed that the detenu be set at liberty forthwith. We now proceed to give our reasons for making that Order. We may point out straightway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler. We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order in made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation. But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it. The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards. This Court has also through its judicial pronouncements created various legal bul-works and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention.