S. M. Fazal Ali, J. - (1.) This petition has been filed by the sister of the detenu praying that the detenu be released because the safeguards provided by the Constitution have not been complied with. The detenu 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 18th November 1980, the detenu made a representation to the Government which was disposed of as late as the 15th December, 1980. In support of the petition, Mr. Jethmalani has submitted two points on which alone, in our opinion, the petition must succeed.
(2.) In the first place, it was pointed out that as already held by this Court the grounds served on the petitioner were not accompanied by the documents and materials which formed the bans of the order of detention, hence the safeguards contained in Art. .22 (5) of the Constitution not having been complied with, the continued detention of the detenu became void. Secondly, it was argued that even though the detenu had made a representation on 18-11-1980, the same was disposed of a month thereafter and no explanation for this delay has been furnished by the respondents. This Court has held in numerous cases that the representations of the detenus should be disposed of as soon as possible and even an unexplained delay of 12 to 14 days has been held to be fatal to the order of detention. Reliance has been placed by Mr. Jethmalani on two decisions of this Court in Smt. Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 which was later followed in Smt. Shalini Soni v. Union of India, (1980) 4 SCC 544 as regards the first case, which is a decision of two Judges of this Court, it has clearly held that before an effective representation can be made by the detenu, he must be supplied with the documents and materials which formed the basis of the grounds of detention. Unless this is done, there could be no question of making any representation, much less an effective representation against the order of detention. In this connection, Bhagwati, J., speaking for the Court observed as follows.- "Now it is obvious that when clause (5) of Article 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient 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, subsection (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 along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requirement of clause (5) of Article 22 read with Section 3, sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void."
(3.) Mr. Rana for the State has submitted that the observations extracted above do not form the ratio of the decision because in a subsequent para of the decision, Bhagwati, J. had observed that at the most grounds could be given within a period of five to fifteen days of the order of detention. These observations, no doubt, are contained in paragraphs 7 and 8 of the judgment but they do not, in our opinion, form the ratio decidendi of this case but were made merely to rebut the extreme arguments that could be put forward. This Court made it very clear that even apart from the interpretation placed by the Court on Art. 22 (5) of the Constitution, the conclusion is inescapable that the documents and statements which formed the basis of the grounds of detention must be supplied to the detenu without least possible delay. It is in this context that these observations were made in paragraphs 7 and 8. Moreover, this position has been made absolutely clear by a later decision of this Court in Smt. Shalini Soni's case (supra) where a Division Bench of this Court while endorsing Smt. Icchu Devi's case (supra) observed as follows: "The matter may also be looked at from the point of view of the second facet of Article 22 (5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual materials which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that 'grounds' in Article 22 (5) 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. In our view copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the 'grounds'.";