SMT. SHALINI SONI ETC. versus UNION OF INDIA & ORS. ETC.

Citation: [1981] 1 S.C.R. 962 · Decided: 24-10-1980 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Case Allowed

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Judgment (excerpt)

962 
A 
B 
c 
SMT. SHALINI SONI ETC. 
v. 
UNION OF INDIA & ORS. ETC. 
October 24, 1980 
[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.] 
Representatfon to the Advisory Board under section 3 of Conservation of 
Foreign Exchange and Preve111io11 of Smuggling Activities Ac1, 1974, nature of-
Constitution of India, 1950, Article 22(5), scope 
of, 
explained--Words and 
phrase~ '"Grounds" under Article 22(5) meaning of. 
Allowing the petitions, the Court 
D 
HELD : (1) The representation by the detenu under the COFEPOSA has 
not to be made in any prescribed form. There is no formula nor any magical 
incantation like "open seasame" to 1fe repeated or chanted in order to qualify 
a 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 
E 
of Article 22(5) of the Constitution. [9650-E] 
F 
G 
H 
In the instant case the communication dated July 27, 1980 by the counsel 
for the detenu in W.P. 4344 of 1980 was a ·representation which was in law 
required to. be considered. The said representation admittedly not having. been 
considered the detenu was entitled to be set at liberty. [965H-966A, C] 
(2) The obligation imposed on the detaining authority, . by Article 22(5) of 
the Constitution, to afford to the detenu the earTiest opportunity of making a 
representation, carries with it the imperative implication that the representa-
tion shall be considered at the earliest opportunity. 
Since all the constitu-
tional protection that a dt,tenu can claim is the little that is afforded by the 
procedural safeguards prescribed by Article 22(5) read with Article 19, the 
Courts have a duty to rigidly insist 1hat preventive detention procedures be fair 
,and strictly observed. A breach of the procedural imperative must lead to the 
release of the detenu. [966B] 
(3} Article 22(5) has. two facets: (i) communication of the grounds on 
which the order of detention has been made; (ii) opportunity of making a 
representation against the order of detention. 
Communication of the grounds 
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 arbitra-
riness and automatism. [966G] 
SHALINI SONI v. UNION (Chinnappa Reddy,!.) 
(4) It is an unwritten rule of the law, constitutional and administrative, 
•that whenever a decision making function is entrusted to the subjective satis-
faction of a statutory functionary, there is an implicit obligation to apply his 
mind to pertinent and proximate mattecs only, eschewing the irrelevant and 
the remote. 
Where there is further an express statutory obligation to com· 
municate 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 pro-
ximate matters and should comprise all the constituent facts and, materials that 
went in to make up the mind of the statutory functionary and not merely the 
inferential conclusions. 
Now, the decision to detain a person depends on sub-
jective satisfaction of the detaining authority. The Constitution and the sta· 
tute cast a duty on the detaining authority to communicate the grounds of 
-detaining to the detenu. 
The grounds communicated must reveal the whole 
-0f the factual material considered by the detaining authority and not merely 
the inferences of fact arrived at. 
The same result would follow if the 
.matter is looked at from the point of view of the second facet of Art. 22(5), 
namely the opportunity to make a representation against the order of detention. 
,[966H·D] ' 
(5) The "grounds" under Article 22(5) .of the Constitution do not mean 
mere factual inferences but mean factual inferences plus factual material which 
led to such factual inferences. 
The "grounds" must be self-sufficient and 
self-explanatory. Copies' of documents to which 
reference is made in the 
.. grounds" must be supplied to the detenu as part of the "gronnds". [1967E·F] 
Smt. lcchu Devi Choraria v. Union of India & Ors., [1981] I S.C

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