VIMALCHAND JAWANTRAJ JAIN Vs. PRADHAN

JUDGEMENT

(1.) This petition is directed against the validity of an order of detention dated 13th Nov. 1978 made by the first respondent who is the Secretary to the Government of Maharashtra Home Department in exercise of the power conferred under sub-sec. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act.) The petitioner has urged several grounds before us but it is not necessary to refer to them since there is one ground which is in our opinion sufficient to dispose of the petition in favour of the petitioner. To appreciate this ground, it is necessary to state a few facts.

(2.) On 13th Nov. an order was made by the lst respondent in exercise of the power conferred on him under sub-sec. (1) of S. 3 of the Act directing the detention of the petitioner. Pursuant to the order of detention, the petitioner was arrested and he was immediately served with the grounds of detention which were embodied in a communication dated 13th Nov. 1978 addressed by the lst respondent to the petitioner. The grounds of detention were quite elaborate and they alleged various smuggling activities against the petitioner and several statements and documents were referred to and relied upon in support of those allegations. The petitioner, by his Advocate's letter dated 25th Nov. 1978, requested the 1st respondent to furnish copies of the statements and documents referred to and relied upon in the grounds of detention and stated that he required the same for the purpose of enabling him to make a representation against the order of detention. It seems that a copy of this letter was also sent by the petitioner to the Collector of Customs. The Assistant Secretary to the Government of Maharashtra, Home Department, informed the petitioner's advocate by his letter dated 27th November, 1978 that copies of the relevant documents and statements required by the petitioner for the purpose of making a representation against the order of detention may be obtained from the Collector of Customs. The petitioner thereupon addressed his advocate's letter dated 2nd Dec. 1978 to the Collector of Customs requesting him to furnish copies of the relevant documents and statements. The Assistant Collector of Customs, however, replied by his letter dated 6th Dec. 1978 stating that copies of the relevant documents and statements would be supplied after a show cause notice under the Customs Act, 1962 was issued to the petitioner. The petitioner was thus unable to get copies of the relevant document and statements from the Collector of Customs. The petitioner obviously could not wait for making a representation since the period of thirty days within which a representation must be made was expiring and he, therefore, sent a representation, D/- 4-9th Dec. 1978 to the Home Secretary and it was received by the Home Department. He by his letter dated 22nd Dec. 1978 acknowledged that the representation of the petitioner was received on 12th Dec. 1978 and intimated that the issue regarding the supply of the copies of relevant document's and statements to the petitioner was under consideration of the Government and after the issue was decided. the representation of the petitioner would be considered and a suitable reply would be given. Now it appears from the affidavit in reply filed by the 1st respondent that the case of the petitioner was in the meanwhile referred to the Advisory Board and since the meeting of the Advisory Board was fixed on 20th Dec. 1978, the representation of the petitioner was forwarded to the Advisory Board for, its consideration. The Advisory Board reported to the 1st respondent that in its opinion there was sufficient cause for the detention of the petitioner and this report was received by the 1st respondent on 6th Jan. 1979. The lst respondent, after considering the report of the Advisory Board, made an order dated 15th Jan. 1979 confirming the detention of the petitioner.

(3.) The petitioner on these facts contended that the order confirming the detention of the petitioner was passed by the 1st respondent without considering the representation of the petitioner and the detention of the petitioner was, therefore, unlawful as being in contravention of Art. 22 (5) of the Constitution. This contention has in our opinion great force and its must result in invalidation of the detention of the petitioner. It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safeguards provided in clauses (4) and (5) of Art. 22 and if any order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated in the law authorising preventive detention, because even if they are not, they would be deemed to be part of the law as a super-imposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention. The 1st respondent was, therefore, bound to observe the constitutional safeguards provided inter alia in clauses (4) and (5) of Art. 22 in detaining the petitioner. We are concerned in this case only with a complaint of violation of the provisions of clause (5) of Art. 22 and that clause reads as follows:-