TaxTMI 
TaxTMI 
1980 (10) TMI 199
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....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 released 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 no 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 n....
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.... communication as a representation. So long as it contains a demand or a request for the release of the detenu in whatever form or language couched and a ground or a reason is mentioned or suggested for such release, there is no option but to consider and deal with it as a representation for the purpose of Art. 22(5) of the Constitution. The communication dated July 27, 1980 contains a demand that the detenu should be released forthwith. It mentions a reason for the demand for release, namely, that copies of statements, documents and materials relied upon by the detaining authority in arriving at the requisite satisfaction were not furnished to the detenu and that the detention was therefore, illegal. In support of the claim that the detention was illegal reference was made to a decision of the Gujarat High Court. The communication, then, ended with a reiteration of the request for the release of the detenu. We find it impossible to read the communication as anything but a representation against the order of detention. True the detenu also asked for copies of documents to enable him to make a representation if the detaining authority was not prepared to accept his demand for revoca....
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....unds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and no....
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....t to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and section 3, sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub- section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of de....
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....e observance of the requirements of law by the detaining authority". Earlier in Vakil Singh v. State of Jammu & Kashmir & Anr., one of us (Sarkaria, J.) had pointed out that apart from conclusions of fact, grounds had a factual constituent also. Grounds meant materials on which the order of detention was primarily based, that is to say, all primary facts though not subsidiary facts or evidential details. Recently in Ganga Ramchand Bharvani v. Under Secretary to the Government of Maharashtra & Ors., it was observed by one of us (Sarkaria, J.) speaking for himself and Pathak J: "The mere facts that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds`of detention', the detenus could not ma....