KAMLA KANAHIYALAL KHUSHALANI versus STATE OF MAHARASHTRA AND ANR.

Citation: [1981] 2 S.C.R. 459 · Decided: 06-01-1981 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Case Allowed
cites 2 · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

• 
459 
KAMLA KANAHlYALAL KHUSHALANI 
v. 
STATE OF MAHARASHTRA AND ANR. 
January 6, 1981 
[S, MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.] 
Conservation of Foreign Exchange and Prevention of S1nuggling Activities 
Act, 1974-Scction 3(3)-Failure to 1upply docu11if!1t/s and rnatcrials 
to the 
d1.:ft'11u-Efiect of-"cffective representation"-Meani11g of. 
In a petition under· Art. 32 of the Constitution the petitioner detenu com· 
A 
8 
-plained that though the grounds of detention were served on the dctenu on the 
C 
date of arrest (October 20, 1980) the materials and documents on which the 
order of detention was based were not supplied to him till November 5, 1980 
and that his representation dated November 18, 1980 was disposed of nearly 
a month later (December 15, 1980) and that the failure on the part of the detain-
ing authority to supply the requisite documents and materials and 
the 
un-
explained delay in the disposal of the representation constituted violation of 
the safeguards contained in Art, 22(5) of the Constitntion which vitiated the 
D 
.order of detention. 
Allowing the petition, 
HELD': I~ is well settled that the law of preventive 
detention has 
to 
<atisfy a two-fold test : ( 1) that the protection and 
the guarantee afforded 
under Art. 22(5) of the Constitution are complied with, and (2) that the pro-
cedure ifl just and reasonable. 
(4630] 
E 
Before an "effective representation" could be made by the detenu he must 
be supplied with the documents and materials which form the basis of the 
grounds of detention and unless this is done there could be no question of 
making any representation, much less an "effective representation" against the 
order of detention. 
The documents and materials relied upon in the order 
,,-- of detention form an integral part of the grounds and must be·supplied to the 
."' 
detenu pari passu the grounds of detention. [461B] 
Smt. lcc/zu Devi Clzoraria v. 
Union of India & Ors. (1980] 4 SCC 531 
and Srnt. Slwlini Soni & Ors. 
v. 
Union of India & Ors. [1980] 4 SCC 544 
referred to. 
If procedure under Art. 21 has to be reasonable, fair and just, then the 
F 
words 'effective representation' appearing in Art. 22(5) must be construed so 
G 
aa to provide a real and meaningful opportunity to the detenu to explain his 
case to the detaining authority in his representation. If the words 'effective 
representation' are interpreted in an artificial or fanciful manner, then it would 
defeat the very object not only of Art. 22(5) but also of Art. 21 of the Consti-
tution. It is settled law that it is of the utmost importance that all the necea-
sary safeguards laid down by the Constitntion under Art. 21 or Art. 
22(5) 
should be complied with fully and strictly and any departure from any of the 
H 
<afeguards would vitiate the order of detention. [463E-F] 
Maneka Gandhi v. Union of India [1978] 2 SCR 621 referred to. 
A 
B 
c 
D 
E 
F 
G 
II 
460 
SUPREME COURT REPORTS 
[1981] 2 S.C.R. 
In tho intant caso not only were the documents and materials not supplied 
to the detenu alongwith the order of detention but there ha4 been an un,explain· 
ed delay of about 25 days ill disposing of tho repre.entatlon of tho detenu. 
'[4658) 
[Despite repeated warnings by this Court the detaining authorities do not 
care to comply with tho spirit and tenor of the safeguards contained in Art, 
22(5) of tho Constitution. There should be no difficulty in keeping copies of 
tho documents and materials referred to in tho order of detention and supply-
ing them to tho detenu along with tho order of detention. This dereliction on 
the part of the detaining authorities results in the relea')e of persons indulgi11g 
in such anti~national activities as smuggling though on merits the deto.tions 
in suitable cases may bo justified.] 
ORIGINAL JURISDICTION : Writ Petition No. 5873 of 19.80. 
(Under Article 32 of the Constitution.) 
Ram Jethmalani and Miss Rani Jethmalani for the Petitioner. 
O. P. Rana and M. N. Shroff for the Respondents. 
The Judgment of the Court was delivered by 
FAZAL ALI, J.-This petition has been filed by the sister of the 
detcnu praying that the detenu be released because the safeguards pro· 
vidcd by tl:!e constitution hav·~ not been complied with. 
The detcnu-
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 18
Excerpt shown. Read the full judgment & AI analysis in Lexace.