1980 (9) TMI 270 - SC - FEMA

Detention under COFEPOSA Act Declared Illegal: Procedural Safeguards Upheld

The Court declared the detenu's continued detention under the COFEPOSA Act illegal due to the detaining authority's failure to provide necessary documents ... Communication of grounds of detention and the detenu's right to be furnished the materials relied upon - earliest opportunity of making representation under Article 22(5) - time-limits for communication of grounds under Article 22(5) read with section 3(3) of the COFEPOSA Act - documents, statements and tape-recordings relied upon forming part of the grounds of detention - unreasonable delay in supplying materials and in considering representations vitiating continued detention - strict observance of procedural safeguards in preventive detentionCommunication of grounds of detention and the detenu's right to be furnished the materials relied upon - time-limits for communication of grounds under Article 22(5) read with section 3(3) of the COFEPOSA Act - documents, statements and tape-recordings relied upon forming part of the grounds of detention - Whether the detaining authority was obliged to furnish to the detenu, as part of the grounds, copies of the documents, statements and tapes relied upon and within the time-limits prescribed by Article 22(5) and section 3(3) of the COFEPOSA Act. - HELD THAT: - The Court held that clause (5) of Article 22 requires the authority making a preventive detention order to, as soon as may be, communicate to the detenu the grounds on which the order has been made and to afford the earliest opportunity of making a representation. Section 3(3) of the COFEPOSA Act gives effect to 'as soon as may be' by ordinarily prescribing a five-day limit and, in exceptional circumstances for reasons recorded in writing, a maximum of fifteen days from detention. The Court concluded that the grounds in their entirety must be furnished within those limits and that any documents, statements or other materials relied upon in the grounds form part of those grounds and must therefore be communicated to the detenu (subject to clause (6) of Article 22). If such materials are not supplied within the prescribed period the continued detention is rendered illegal. Applying these principles, the Court found that copies of the documents and statements were supplied only on 11th July and the tapes on 20th July despite written requests from the detenu in June; no reasons recorded in writing justified extension to fifteen days; the delay thus contravened Article 22(5) read with section 3(3) and invalidated continued detention.The detaining authority's failure to supply the documents, statements and tapes forming part of the grounds within the prescribed time vitiated the continued detention and rendered it illegal.Earliest opportunity of making representation under Article 22(5) - unreasonable delay in considering representations and its effect on validity of detention - strict observance of procedural safeguards in preventive detention - Whether unreasonable delay in considering the detenu's representations invalidated his continued detention. - HELD THAT: - The Court reiterated that clause (5) of Article 22 imposes a duty on the detaining authority not only to furnish grounds promptly but also to consider the detenu's representations at the earliest opportunity; unreasonable delay in doing so undermines the constitutional safeguard and may invalidate detention. On the facts, the detenu's representations of 9th and 26th June were not decided until mid-July; the administrative processing showed unexplained delays in forwarding and obtaining remarks from the Customs Department. The unexplained and avoidable delays in both supplying material and in disposal of representations were held unreasonable and sufficient to invalidate the continued detention.The detaining authority's unreasonable delay in considering the detenu's representations rendered the continued detention invalid.Final Conclusion: The petition was allowed and the continued detention declared illegal: the Court ordered immediate release of the detenu because the detaining authority failed to furnish the materials forming part of the grounds within the time prescribed by Article 22(5) read with section 3(3) of the COFEPOSA Act and unreasonably delayed consideration of the detenu's representations; the Court did not express an opinion on the substantive validity of the detention order itself. Issues Involved:1. Legality of the continued detention under COFEPOSA Act.2. Compliance with procedural safeguards under Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act.3. Timely communication of grounds of detention and related documents.4. Delay in considering the detenu's representations.Detailed Analysis:1. Legality of the Continued Detention under COFEPOSA ActThe petition for a writ of habeas corpus challenged the continued detention of the detenu under Section 3(1) of the COFEPOSA Act. The detenu was detained on 4th June 1980, based on an order dated 27th May 1980, issued by the Governor of Maharashtra, who was satisfied that the detenu was involved in smuggling activities. The detenu was served with the grounds of detention on the same day, which included references to several documents and tape-recorded conversations.2. Compliance with Procedural Safeguards under Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA ActThe primary contention was that the detaining authority failed to serve the detenu with copies of the statements, documents, and tapes relied upon in the grounds of detention, thereby violating Section 3(3) of the COFEPOSA Act and Article 22(5) of the Constitution. The Court emphasized that these provisions require the detaining authority to communicate the grounds of detention, including all supporting documents, to the detenu 'as soon as may be,' but not later than five days, or in exceptional circumstances, fifteen days from the date of detention.3. Timely Communication of Grounds of Detention and Related DocumentsThe detenu requested the Deputy Secretary for the documents on 6th June 1980 and repeated his request on 9th June 1980. However, the documents were only supplied on 11th July 1980, and the tapes on 20th July 1980. The Court held that the grounds of detention must include all supporting documents, and these must be communicated within the prescribed time limits. The delay in supplying these documents and tapes was deemed unjustified, rendering the continued detention illegal.4. Delay in Considering the Detenu's RepresentationsThe detenu submitted representations on 9th June 1980 and 26th June 1980, which were received by the Deputy Secretary on 14th June 1980 and 30th June 1980, respectively. The representations were only considered on 11th July 1980, and a decision was taken on 14th July 1980. The Court found this delay unreasonable and in violation of the constitutional obligation to consider the detenu's representation as early as possible. This delay further invalidated the continued detention.ConclusionThe Court concluded that the detaining authority's failure to supply the documents and tapes within the prescribed time limits and the unreasonable delay in considering the detenu's representations violated the procedural safeguards under Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act. Consequently, the continued detention of the detenu was declared illegal, and the detenu was ordered to be released forthwith. The Court underscored the importance of upholding personal liberty and ensuring that preventive detention powers are exercised strictly in accordance with the law.