LAWS(SC)-1981-1-52

KAMLA KANYALAL KHUSHALANI Vs. STATE OF MAHARASHTRA

Decided On January 06, 1981
KAMLA KANYALAL KHUSHALANI Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) This petition has been filed by the sister of the detenu praying that the detenu be released because the safeguards provided by the Constitution have not been complied with. The detenu was arrested on 20-10-1980 when only the grounds of detention were served on him. On 5-11-1980 the documents and materials on the basis of which the order of detention was passed were supplied to the detenu. On the 18th November 1980, the detenu made a representation to the Government which was disposed of as late as the 15th December, 1980. In support of the petition, Mr. Jethmalani has submitted two points on which alone, in our opinion, the petition must succeed.

(2.) In the first place, it was pointed out that as already held by this Court the grounds served on the petitioner were not accompanied by the documents and materials which formed the bans of the order of detention, hence the safeguards contained in Art. .22 (5) of the Constitution not having been complied with, the continued detention of the detenu became void. Secondly, it was argued that even though the detenu had made a representation on 18-11-1980, the same was disposed of a month thereafter and no explanation for this delay has been furnished by the respondents. This Court has held in numerous cases that the representations of the detenus should be disposed of as soon as possible and even an unexplained delay of 12 to 14 days has been held to be fatal to the order of detention. Reliance has been placed by Mr. Jethmalani on two decisions of this Court in Smt. Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 which was later followed in Smt. Shalini Soni v. Union of India, (1980) 4 SCC 544 as regards the first case, which is a decision of two Judges of this Court, it has clearly held that before an effective representation can be made by the detenu, he must be supplied with the documents and materials which formed the basis of the grounds of detention. Unless this is done, there could be no question of making any representation, much less an effective representation against the order of detention. In this connection, Bhagwati, J., speaking for the Court observed as follows.-

(3.) Mr. Rana for the State has submitted that the observations extracted above do not form the ratio of the decision because in a subsequent para of the decision, Bhagwati, J. had observed that at the most grounds could be given within a period of five to fifteen days of the order of detention. These observations, no doubt, are contained in paragraphs 7 and 8 of the judgment but they do not, in our opinion, form the ratio decidendi of this case but were made merely to rebut the extreme arguments that could be put forward. This Court made it very clear that even apart from the interpretation placed by the Court on Art. 22 (5) of the Constitution, the conclusion is inescapable that the documents and statements which formed the basis of the grounds of detention must be supplied to the detenu without least possible delay. It is in this context that these observations were made in paragraphs 7 and 8. Moreover, this position has been made absolutely clear by a later decision of this Court in Smt. Shalini Soni's case (supra) where a Division Bench of this Court while endorsing Smt. Icchu Devi's case (supra) observed as follows: