LexHASMUKH S/O BHAGWANJI M. PATEL versus THE STATE OF GUJARAT & ORS.
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353
HASMUKH S/O BHAGWANJI M .. PATEL
v.
THE STATE OF GUJARAT & ORS.
August .4. 1980
[R. S. SARKARIA AND R. S. PATHAK, JJ.]
Writ of habeas corpus, issuance of-Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, Section 3-Concept of .~rounds of
detention explained-Filing of counter-affidavit by an officer who authenticated
the detention order passed by the Home Minister and issued the .same under
the rules of business is perfectly valid-Introductory facts or history of the case
in the grounds of detention cannot be co'nsidered as irrelevant--Delay of 17
days excluding the time taken for communication in transit in the overall facts
of the case is not so unreasonable as to amount to an infraction of the consti-
tzttiona/ imperatives in Article 22(5) of the Constitution.
Lallu Jogi Patel was detained on January 31, 1980 by an order of detention
dated January 30, 1980 passed by the Minister of Home Affairs, Gujarat St~.te
under Section 3(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 and issued by the second respondent a Deputy
Secretary of Government of Gujarat, Home Department. The Order was ex-
pressed in the name of the Governor of Gujarat. On the same date, the
grounds of detention were served on the detenu. The detenu prayed for copies
of the statements and documents relied upon in the
1 grounds of detention on
February )5, 1980.
On February 1, 1980 the detenu's Advocate sought per-
mission for an interview with the detenu to seek instructions from him for
drafting his representation.
On February 20, 1980 the· State Government in·
formed the Advocate that his request for interview with the detenu had been
granted. After consulting the Collector of Customs, the Home Department also,
1npplied to the detenu the documents running into 461 pages on March 7,
1980 which were ·actually received by the detenu on March 11, 1980, that is
after a delay of 17 days, excluding the time taken in transit etc.
Dismissing the petition, the Court
HELD : (1) In view of the fact that the original detention order was, in
fact, passed by the Home Minister against whom no personal ma/a {ides are
alleged and the said order was authenticated and issued under the Rules of
·Business by the Deputy Secretary, Home Department {Special}, the latter's swear-
ing the counter-affidavit in the case is valid. (360 F-G]
(2) The introductory facts or history of the case incorporated in the grounds
of detention cannot be considered as irrelevant matters which went into the,
.,consideration of, the detention order. [360 G-H]
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(3) A democratic Constitution is not to be interpreied merely from a lexi·
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. cographer's angle but with a realisation that it is an embodiment. of the living
'.thoughts and aspirations of a: free· people. The concept of "grounds" used
in the context of detention in Article 22(5) of the Constitution and in sub~ .
•
354
SUPREME COURT REPORTS
n9s11 1 s.c.R.
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section (3) of Section 3 of COFEPOSA, therefore, has to receive an interpre·
tation which will keep it meaningfully in tune with a con\emporary notions of
liberty and fundamental freedoms guaranteed in Article 19(1), 21 and 22 of
the Constitution. [361 A-CJ
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(4) In Khudiram Das v. West Bengal the Supreme Court held that the con•
stitutional imperatives enacted in Article 22(5) are two-fold: (i) The detaining
authority must, as soon as may be, that is, as soon as practicable after the
detention, communicate to the detenu the grounds on which the order has
been made; (ii) the detaining authority must afford the detenu the earliest op·
portunity of making a .representation against the detention order and that these
two are the barest minimum safeguards which must. be observed before an-
executive authority can preventively detaio. a person; the grounds under Arti-
cle 22(5) mean all the basic facts and materials on which the order of deten-
tion is based, therefore, all the basic facts and materials which influenced the
detaining authority in making the order of detention must be communicated'
to the detenue. [361 D-G]
(5) While the expression "grounds" in Article 22(5), and fer that matter,
in ~ection 3(3) of the COFEPOSA, includes not only conclusions of fact but
also all the "basic facts" on which those conclusions are founded, they are
different from subsidiary facts or further particulars or thExcerpt shown. Read the full judgment & AI analysis in Lexace.