T.U. Mehta, J.
1. The petitioner herein is the wife of the detenu named Abdul Kadar Abdul Rehman Papad of Surat, and has challenged the detention of her husband ordered by the respondent No. 1, who is the District Magistrate, Surat, under Section 3(1)(c)(i) of the Maintenance of Internal Security Act, 1971 (which is hereinafter referred to as "The Act") as amended by Ordinance No. 11 of 1974. The said order of detention is passed by the above said authority on 7th October, 1974. By a letter of the same date the respondent No. 1 communicated to the detenu the following three grounds of detention:
1. On 12-2-1971 a car bearing registration No. BMZ-6380 in which you were sitting was searched by the Police on the kutcha road near Rameshwar Mahadev close to Kavi in Broach district. The search resulted in the recovery of smuggled goods valued at Rs. 24500/-. inquiries revealed that you had contributed money for the purchase of the smuggled goods under seizure. In this connection the Assistant Collector, Customs (Adjudication), Surat, vide his adjudication Order No. 201/1971 dt. 10-11-1971 has imposed a penalty of Rs. 200/- on you.
2. On 9-6-74 two cars bearing registration Nos. MRW-5687 and BJD-7985 were seized by the Customs officials at Narmada Bridge at Broach containing smuggled goods valued at Rs. 1,05,000/-. Inquiries revealed that you were concerned in carrying these seized smuggled goods.
3. On 25-7-1974, the Customs officials Surat, seized smuggled goods worth Rs. 26,856/- from car bearing registration No, GJL-7064 on the road leading to Bhagwa in Olpad taluka. These customs officials also seized smuggled goods worth Rs. 93,400/- on the same day from Bhagwa near Sena Creek. Inquiries revealed that you had been seen on the night on 24/25-7-74 going towards the Bhagwa coast and that you are involved in the smuggling of these goods.
It is clear, therefore, that you are engaged in smuggling of goods and I am satisfied that it is necessary to detain you with a view So preventing you from continuing to do so.
The first of these three grounds is challenged as vague and stale as it refers to an incident which is more than 3 1/2 years old. The second and the third grounds are challenged as absolutely vague giving no details or materials which would enable the detenu to make any representation to the Government. A further challenge with which these grounds are faced is that they reveal a total non-application of mind by the detaining authority. For this last mentioned contention heavy reliance was placed on the affidavit filed by respondent No. 1 (the detaining authority) and the subsequent affidavit filed by Shri Bina Nath Mehta, Collector of Central Excise, Ahmedabad, on 9th instant during the course of hearing of this petition.
2. Reference to the petition shows that the petitioner has also challenged the constitutional vires of Ordinance No. 11 of 1974 but during the course of the arguments this contention as regards the vires of Ordinance has not been pressed on behalf of the petitioner.
3. During the pendency of these proceedings on November 16, 1974 the president of India made a declaration in exercise of powers conferred upon him by Clause (1) of Article 359 of the Constitution of India, suspending the enforceability of Articles 14, 21 and 22(4), (5), (6) and (7) with respect to the orders of detention made under Section 3(1 )(c) of the Act. This declaration applies also to the pending proceedings has hence even this matter is covered by it.
4. As per this Court's order passed on November 20, 1974, respondent No. 4, the Union of India was at its own request allowed to be joined as a party to these proceedings.
5. As a result of the above referred Presidential declaration made under Article 359 of the Constitution, the learned Counsel for the Union raised the following three preliminary contentions:
1. This petition which challenges the original order of detention passed by the first respondent on September 22,1974 is not maintainable after the Advisory Board gave its report and the State Government acting on that report had made an order under Section 12 of the M.I.S.A. confirming the order of detention and directing continuance of the detention.
2. In view of the suspension of pending proceedings for enforcement of the rights under Articles 14, 21 and Clause (4), (5), (6) and (7) of Act. 22 by the Presidential order dated November 16, 1974 issued under Article 359(1), the present petition requires to be scrutinised to find out whether in substance, intent and purpose it is a petition for enforcement of rights under the suspended clauses of Article 22. It was contended in this connection that in this particular case, in substance and intent this Special Criminal Application seeks the enforcement of the fundamental rights under Article 22 and, therefore, the hearing of the petition should be suspended for the period mentioned in the Presidential Order dated November 16, 1974.
3. While the Presidential Order is in force, the High Court cannot issue any writ of habeas corpus or any other writ, order or direction under Article 226 of the Constitution releasing the detenu unless the case fails under any of the following three exceptions, namely:
(a) detention is in clear contravention of the mandatory provisions of M.I.S.A. (b) detention is mala fide and (c) the M.I.S.A. is held to be ultra vires, or Section 3(l)(c) inserted by Ordinance 11 of 1974 into M.I.S.A. is held to be ultra vires.
All there contentions have been exhaustively dealt with by us in the judgment delivered by us on 5th inst. In Special Application No. 142/74 Rasulbhai Muradbhai Sindhi v. Shymal Ghos and Ors. XVI G.L.R 642. For the reasons stated in that judgment, these preliminary contentions are rejected.
6. With regard to these preliminary contentions, it should be noted that during the course of hearing of Special Criminal Application No. 142/74 the judgment given by a Division Bench of Kerala High Court on two of these contentions in O.P. No. 4357 of 1974 was not available. But when this matter was being heard, a copy of the said judgment was available and, therefore, the learned Counsel for the Union drew our attention to the said judgment and requested us to reconsider the view which we have taken in Special Criminal Application No. 142/74 by forming a larger bench. We find that the learned Judges of the Kerala High Court have proceeded on the ground that since the provisions contained in Section 8(1) of the Act are similar to those contained in Article 22(5) of the Constitution, the application of the provisions contained in Section 8(1) of the Act, would substantially amount to the consideration of the provisions contained in Article 22(5) and, therefore, in view of the suspension of remedies under Articles 21 and 22(4) to (7) of the Constitution, the procedure contemplated by Section 8(1) of the Act cannot be applied to the detenus till the Presidential declaration remains in force. This very contention was taken up by Shri Vakharia on behalf of the Union in some of the cases and has been considered by us in our judgment in Special Criminal Application No. 142/74. Even after perusing the judgment recorded by the High Court of Kerala on this point, we don't see any reason to reconsider the view taken by us, and with due respect to the learned Judges of that High Court, we find ourselves unable to take a view which is different from the one which is taken in Special Criminal Application No. 142/74.
7. The learned Counsel for the Union also raised certain legal contentions arising out of the application of Section 16A to the case of the present detenu. Before stating these contentions, it should be noted that according to the respondents, the provisions of Section 16A of the Act are applied to the case of this detenu with the result that the detenu is liable to be detained without making any reference to the Advisory Board for a period of one year from the date of the detention. In this connection, it should also be mentioned that in the affidavit in reply which was sworn by respondent No. 1, (the detaining authority) on 25th November, 1974, he made the following statement:
I further say that the case of the detenu was thereafter referred to the Advisory Board constituted under the Act and the Advisory Board after considering all the material on the basis of which the order was passed and after considering the representation made on behalf of the detenu has reported to the State Government that there is sufficient cause for the detention of the detenu.
However, during the course of hearing on 9th December, 1974, the learned Government Pleader submitted a further affidavit by which it was requested that the above quoted lines should be omitted from the affidavit-in-reply. Thus, this statement now no more remains in the affidavit-in-reply. To-day on behalf of the Union, one more affidavit is produced to show that the declaration contemplated by Section 16A of the Act has been issued by the Government of India on 4th November, 1974. This declaration has also been sent to the State Government. Under the circumstances, it is now an admitted position that the case of the present detenu Is governed by the provisions contained in Section 16A of the Act.
8. The contentions raised by Shri Nanavati, the learned Counsel for the Union regarding the consequences arising from the application of Section 16A can be briefly stated as under:
1. In cases in which Section 16A is invoked, vagueness of a ground of detention would not vitiate the order of detention because before the stage of consideration of detenu's representation by the Advisory Board reaches after the lapse of a year from the date of detention, particulars or details of the vague grounds can be supplied to the detenu at any time.
2. In cases where Section 16A is applied, the Government is not bound to make reference to the Advisory Board before one year from the date of detention and hence it is also not bound to consider the detenu's representation during that period because the procedural provisions contained in Article 22(4) to (7) are not enforceable during the existence of the Presidential declaration under Article
359. Under the circumstances, the release of the detenu on the plea of vagueness of grounds cannot be made before the stage of consideration of representation by the Advisory Board is reached.
3. So far as the provisions contained in Section 8(1) of the Act are concerned, non-compliance thereof on the plea of vagueness of grounds should not result in the forthwith release of the detenu as Articles 21 and 22 (4) to (7) are not enforceable during the existence of the Presidential declaration and invocation of Section 16A suggests that the procedural safeguards contemplated by Section 8(1) of the Act are not available to the detenu till the opinion of the Board is obtained. In such cases instead of ordering the release of the detenu, the Court may give directions to the detaining authority to supply particulars.
To-day after filing one more affidavit to prove the issuance of the declaration under Section 16A of the Act, Shri Nanavati, has added one more contention which is as under:
The result of the declaration made by the Government of India, under Section 16A of the Act is that the original order of detention made by respondent No. 1 is now not open to scrutiny as it stands substituted by the order of the Central Government passed in form of declaration under Section 16A and, therefore, it is this order under Section 16A which forms the legal basis of the detention of the detenu on and from 4th November, 1974. Since this order is passed by the Government of India after having reasons to believe that the detenu smuggled or is likely to smuggle goods in the area specified in the said order, the detenu cannot be released so long as this order is not separately put into challenge in this petition. In this connection, it was also contended that even if it is found that the first respondent had not applied his mind at the time of passing the original order of detention, the Government of India having applied its mind under Section 16A, the detenu cannot be released so long as it is found that the Government of India did not apply its mind at the time of considering the materials afresh under Section 16A.
9. The first of these three contentions, raises the question whether in cases wherein vague grounds are initially supplied, furnishing of particulars and necessary materials regarding these vague grounds subsequently in Court during the course of the hearing of Habeas Corpus petition would remove the vice of vagueness. The contention was that vagueness of a ground assumes importance because a vague ground takes away the detenu's right of making an effective representation to the Government but in cases wherein necessary details regarding vague ground are supplied, the vice of vagueness is removed and the detenu is enabled to make an effective representation to the Government. It was further pointed out that but for the application of Section 16A, the reference to the Advisory Board is required to be made within 30 days from the date of detention and while doing so, the representation of the detenu is also required to be sent to the Board. Therefore, the detenu should be furnished with necessary materials regarding the vague grounds before this period of 30 days is over. But when Section 16A is applied this period of 30 days is extended to one year, and hence the details as regards the vague grounds can be supplied at any time during the period of one year from the date of detention without any prejudice to the detenu.
10. This argument involves the consideration of the compliance with the specific provisions of Section 8(1) of the Act which requires that the grounds of detention should be supplied to the detenu "as soon as may be, but ordinarily not later then 5 days, and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of the detention". We have already held in Special Criminal Application No. 142/74 that the provisions of the Act contain some statutory safeguards as distinguished from the constitutional safeguards contained in Article 22 of the Constitution. We have also held that the safeguards which are contemplated by Section 8(1) of the Act are in nature of conditions attached to the continued detention of a particular detenu and, therefore, if these conditions are not fulfilled, the whole detention becomes liable to be set aside. Under these circumstances, the view which we have taken is that the statutory safeguards which are provided by Section 8(1) of the Act, are of a very substantial nature and, therefore, it is the duty of the Court to see whether for the purpose of a continued detention of a detenu, these safeguards are complied with or not.
11. The question is whether the invocation of Section 16A of the Act has any effect upon the statutory safeguards which are provided by the Act in Section 8(1). Section 8(1) contemplates two main safeguards for a detenu. They are: (i) he should be supplied with the grounds of his detention within the time stipulated by the section, and (ii) he should be given an 'earliest opportunity' of making a representation against the order of detention to the appropriate Government. These are the two barest safeguards which the law contemplates in case of every detenu. The invocation of Section 16A does not and cannot do away with any of these two safeguards, because, Section 16A is concerned only with the situation wherein the ordinary rule of making a reference to the Advisory Board within the period of 30 days is substituted by the rule wherein this reference can be made within the period of one year from the date of detention. In order to appreciate the provisions of Section 16A in their proper perspective, it would, at this stage, be necessary to quote it. The relevant portion of the same is as under:
16A. (1) Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention has been made under this Act may be detained without obtaining the opinion of the Advisory Board for a period longer than three months but not exceeding one year from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting other persons to smuggle goods, and the Central Government has reason to believe that such person-
(i) smuggles or is likely to smuggle goods, or
(ii) abets or is likely to abet other persons to smuggle goods, into, out of or through any specified area as defined in Clause (c) of Section 11H of the Customs Act, 1962.
The marginal noted with regard to this section are as under:
Cases in which and circumstances under which persons may be detained for longer than three months without obtaining opinion of Advisory Board.
A bare perusal of the provisions of this section shows that it is enacted with a view to see that in certain specific types of cases the reference to the Advisory Board which is contemplated by Section 10 of the Act is not made within 30 days from the date of detention. Section 16A has thus absolutely no effect on the provisions contained in Section 8. It is obvious that the question of making a reference to the Advisory Board would arise to be considered only after the grounds for detention are supplied to the concerned detenu within the time stipulated by Section 8. Thus Section 8 on one hand and Section 10 as well as Section 16A on the other, operate totally in different fields and are enacted with reference to totally different stages of detention. Therefore, it is difficult to comprehend how merely because the period of making reference to the Advisory Board is extended to one year from 30 days, it can be contended that the requirement of Section 8 are in some manner modified.
12. So far as the first contention which is raised by Shri Nanavati is concerned, the real question which arises to be considered is whether in cases wherein the detenu is originally supplied with grounds which are vague, the particulars which would enable the detenu to make proper representation to the Government can be supplied at a subsequent stage or not. We find that proper answer to' this question is found from the fact that Section 8 itself contains two very important safeguards to the detenu namely, that the grounds are to be supplied to him "as soon as may be" and the opportunity to make a representation to the Government against the order of detention is also to be afforded to him at the "earliest opportunity." So far as the period within which the ground are to be supplied, Section 8 provides not merely a general direction that they should be supplied 'as soon as may be' but it also gives specific direction that ordinarily these grounds should be applied not later than 5 days. However, in exceptional circumstances, they can be supplied within 15 days from the the date of his detention but even in such exceptional circumstances, Section 8 requires that reasons should be recorded in writing for not giving the grounds within the period of 5 days. Thus the use of the expressions "as soon as may be" and "earliest opportunity" together with the outside limit of the time during which the grounds are required to be supplied, clearly and unequivocally evidence an intention of the Legislature that it is the right of the detenu to know the grounds of his detention at the earliest possible opportunity. It cannot be gain-said that the grounds which is vague is no ground at all. If the detenu has a right to make an effective representation against his detention it is difficult to conceive how he can make any representation at all unless the grounds give him a clear as to the charges which he is called upon to meet with. Under the circumstances one thing which clear is that a vague ground is no ground and whenever a vague ground is given for the detention of a particular person, he is robbed of his important right of making representation against the order of his detention.
13. Now the question is whether this vagueness can be remedied and if so, when and in what manner. Here the contention of Shri Nanavati was that since the representation is to be utilised by the Advisory Board for the purpose of giving its opinion, and since by the invocation of Section 16A reference to the Advisory Board is delayed for a period of one year, the vice of vagueness in the grounds would be mitigated if the detenu is supplied with the required particulars at any time before the reference to the Advisory Board is made. If this contention is accepted, it would mean that for a period of one year when the reference is made to the Advisory Board, the detenu can be robbed of his opportunity to make representation for want of proper grounds. This would totally nullify the provisions of Section 8(1) of the Act. No construction can be put to a statute which would nullify the express intention of the Legislature as conveyed through the enactment of a section.
14. In the State of Bombay v. Atmaram reported in A.I.R. 1952 S.C. 157, the Supreme Court had an occasion to consider when and under what circumstances particulars of a vague ground can be properly supplied to the detenu. There the detenu was detained by the Government of Bombay under Preventive Detention Act (Act 4 of 1950). The ground of his detention which was supplied to him was alleged to be containing no particulars and, therefore, it was attacked inter-alia on the ground of vagueness. The detenu thereafter filed a writ petition in the High Court of Bombay and -pending the disposal of that writ petition, the Commissioner of Police sent a communication to the respondent whereby some further particulars were supplied. The question which arose before the Supreme Court for consideration was when and under what circumstances the supply of further particulars would cure the defect of original vagueness. After stating that without getting information sufficient to make the representation against his order of detention, it is not possible for a detenu to make the representation to the Government, and therefore, his right to make the representation would be rendered illusory, the Supreme Court is found to have observed as under:
The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be either the grounds which were not elements to bring about the satisfaction of the Government or they were such grounds there has been a breach of the provisions of the first part of Article 22(5) as those grounds for the order of detention were not conveyed to the detained person "as soon as may be.
In paragraph 10 of the reported judgment, the Supreme Court has also considered the importance of the time factor for the purpose of communication of the grounds to the detenu. There the Court has taken into account the expression "as soon as may be" with reference to the supply of the grounds to the detenu and the expression "earliest opportunity" with reference to the opportunity which the detenu is required to be afforded for making a representation to the Government, and has held that the time factor suggested by the two expressions is very material from the point of view of the detenu. Thereafter in paragraph 15 of the reported judgment, the Supreme Court has considered the validity of the argument that the supplementary grounds cannot be given after the grounds are first given to the detenu. On this question the Supreme Court has clarified that if by "supplementary grounds" is meant "additional grounds" i.e. the conclusions of facts required to bring about the satisfaction of the Government, the furnishing of any such additional grounds at a late stage would amount to an infringement of the first mentioned right in Article 22(5) of the Constitution as the grounds in the order of detention must be before the Government before it is satisfied about the necessity for making the order. The Court has further observed that while the above referred type of additional grounds could not be given after the grounds are furnished in the first instance, the other type of the grounds, namely, the particulars about the ground which is already conveyed to the detenu and which was already in existance at the time of his detention can be furnished provided they are furnished so as not to come in conflict with giving the earliest opportunity to the detained person to make a representation. Thus even in cases wherein the Supreme Court has found it permissible to supply the details of the grounds which already existed at the time of ordering the detention of the detenu, the Supreme Court has insisted that the furnishing of these particulars should not come in conflict with giving the earliest opportunity to the detenu to make his representation. Under the circumstances, if the contention of Shri Nanavati that in view of the invocation of Section 16A of the Act, the detenu can be supplied with the particulars of a vague ground, at any time before reference is made to the Advisory Board, he taken as correct, it would obviously offend the ratio of the above referred decision of the Supreme Court in Atmaram's case. It is evident that if this contention prevails, the requirement of Section 8(1), namely, that the grounds should be supplied "as soon as may be" would be rendered nugatory. In this connection we may also note that our discussion on second and third contentions of Shri Nanavati shows that the Supreme Court has consistently taken a view that the State Government is obliged to consider the representation of the detenu not only as early as possible but also independently of the action by the Advisory Board vide Jayanarayan Sukul v. State of West Bengal . If this be so, there would be no point in saying
that the vagueness of a ground can be remedied by supplying particulars -at any time before opinion of the Advisory Board is obtained, because the adoption of any such procedure would result in non-supply of the grounds till vagueness is removed.
15. However, our discussion of the facts of the case, which is made hereafter, will show that even if it is believed that vagueness can be remedied by supplying particulars at a late stage without offending the spirit and letters of Section 8(1), in this case, no such effort is made by the respondents even at this stage with the result that the grounds Nos. 2 and 3 remain as vague as they were when supplied to the detenu. We propose to consider this aspect of the matter after completing the consideration of other contentions raised by Sari Nanavati on behalf of the Union.
16. Coming to the second contention of Shri Nanavati, it was submitted that in view of the application of Section 16A to this case, the Government is not bound to make reference to the Advisory Board before one year before the date of the detention and since the scheme of Sections 9 to 12 of the Act reveals that the representation of the detenu is to be considered by the Government only after it is placed before the Board, the Government is not bound to consider and dispose of the detenu's representation at any time before the opinion of the Board is obtained. It was contended that under such circumstances if the matter comes before this Court under Article 226 of the Constitution, this Court cannot order the release of the detenu on the ground of vagueness of the grounds supplied to the detenu.
17. It is difficult to comprehend how the jurisdiction of this Court to release the detenu in a writ of Habeas Corpus under Article 226 is in any manner affected by the fact that as a result of the invocation of Section 16A, the Government is not bound to refer the matter to the Advisory Board before one year from the date of the detention. Reference to the Advisory Board under Section 9 is obviously for the purpose of enabling the State Government to take proper decision under Section 12. This Court is not concerned with that reference. As observed by Methew, J. in Prabhu Dayal v. Dist. Mag. Kamrup as "to what the Advisory Board might do in exercise of its jurisdiction is not the concern of the Court". In Special Criminal Application No. 142/74 also was have considered this aspect of the matter and have agreed with the view taken by the Allahabad High Court in Prem Dutta v. Superintendent, Central Prison that the High Court has no concern with the proceedings of the Advisory Board and that the fact that law has provided an Advisory Board for advising on cases of Preventive Detention, does not mean that the right of the High Court to grant a writ of Habeas Corpus is taken away. In Special Criminal Application No. 142/74 Section 19A was not applied but we find that the application of Section 16A to the case of a particular detenu makes no difference in the matter.
18. Moreover, the basic postulate of the contention that the Government is not bound to consider the detenu's representation before obtaining the opinion of the Advisory Board is patently wrong. We have already pointed out above how the provisions of Section 8 of the Act require that the detenu shall be supplied with the grounds of detention "as soon as may be" and how he should be afforded "an earliest opportunity" to make a representation. Implicit in these requirements is the obligation on the State Government to consider and dispose of representation of the detenu at the earliest opportunity.
19. Supreme Court had occasions to consider the question whether the State Government is obliged to consider the detenu's representation as expeditiously as possible after its receipt or not. In Sk. Abdul Karim and Ors. v. The State of West Bengal , Ramaswami, J., speaking for the Court has in this connection observed as under:
A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority u to deal with the representation. But it is necessarily implicit in the language of Article 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it.
Proceeding further, his Lordship has observed as under:
But it is a necessary implication of the language of Article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind it and if necessary take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality. It is, therefore not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached If the view point contended for by the respondent is correct, the constitutional right under Article 22(5) would be rendered illusory.
In a subsequent decision in Pankaj Kumar Chakrabarty and Ors. v. State of West Bengal , Shelat J. speaking for the Court has observed on this point as under:
If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases u to be considered by the Board and not by the appropriate Government, Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board. But, what would happen in cases where the detention is for less than 3 months and there is necessity of having the opinion of the Board? If counsel's contention were to be right the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory.
In that case the Court considered Sections 7, 8,9 and 13 of the Preventive Detention Act, 1950. Applying the above principles to these sections of the Preventive Detention Act, the Court has observed as under:
The obligation under Section 7 is quite distinct from that under Sections 8 and 9. If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addresse the Government and not directly to the Board.
These observations show that the construction which the Supreme Court has put on the provisions of Article 22(5) of the Constitution, is the same which they have put on the pan materia provisions of the Preventive Detention Act, namely, Sections 7, 8 and 9. Thereafter in Jayanarayan Sukul v. Slate of West Bengal , the
Supreme Court reviewed the whole legal position on this point in view of some apparent conflict between the case of Shyamal Chakraborty v. Commissioner of Police, Calcutta and Pankaj Kumar
Chakrabraty and Ors. v. The State of West Bengal W.P. No. 377 of 1968 dated on 1-5-1969. After reviewing the case law on the subject, the Supreme Court has stated four principles which emerge with regard to the representation of detenu as under:
First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a corelative duty to the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board.
The same view is thereafter taken in Niranjansingh v. State of M.P. .
20. In view of this settled position of law, the contention of Shri Nanavati that the Government is not bound to consider the representation of the detenu till the same is considered by the Advisory Board is found to be totally unacceptable. Shri Nanavati, however, contended that all the above referred decisions are with reference to Article 22(5) of the Constitution and since the enforcement of this Article is suspended by the Presidential declaration under Article 359, these decisions would be of no use while interpreting the provisions of the Act. According to Shri Nanavati, insertion of Section 16A, exhibits the legislative intent that in absence of the enforcement of Article 22(5), the State Government has no obligation to consider the representation before the said representation is considered by the Advisory Board. We do not find any substance in this contention because the right of the detenu to have his representation considered at an earliest opportunity is the right which flows from the provisions of a special statute, namely, the Act in this case and since the language of Article 22(5) is the same as employed by the Legislature in Section 8(1) of the Act and since the construction of that language should be the same, we are of the opinion that whatever the Supreme Court has said on this point with reference to Article 22(5) would also apply to the provisions contained in Section 8(1) of the Act. As a matter of fact, in Pankaj's case to which reference is already made above, the Supreme Court has applied the same principle with regard to the interpretation of Sections 7 to 9 of the Preventive Detention Act, 1950. In view of this, the respondents should fail even in the second contention.
21. So far as the third contention of Shri Nanavati is concerned, it should be noted that it contains nothing but a restatement of the first two contentions in a different form. In Special Criminal Application No. 142/74 we have held that supply of grounds to the detenu and affording the detenu an opportunity to make an earliest representation against these grounds as contemplated by Section 8(1) of the Act, are not mere matters of procedure but amount to conditions which are attached to the detenu's continued detention. This is what we have stated in that judgment:
The Presidential Order also mentions that Article 21 is one of the specified Articles and for the enforcement of those rights, it is not open to the citizen to approach the Court and the proceedings which are pending at the date of the Presidential order for the enforcement of such right would also be suspended. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Now Section 8(1) of the M.I.S.A. does not deal with any procedure. It lays down conditions for the continued detention of a detenu against whom an order of detention has been passed. If the mandatory provisions of Section 8(1) of the M.I.S.A. are not complied with, namely, that the grounds of detention are not furnished as contemplated by Section 8(1), the continued detention of the person concerned would be illegal and would be in violation of Section 8(1). Similarly, if the grounds of detention are vague and do not afford an adequate opportunity to the detenu to make an effective representation against the order of detention, again it would mean that the condition on which the detention can be legally continued is not complied with. It is not a condition precedent to the passing of the order of detention but it is a mandatory provision making it incumbent upon the authorities concerned to supply the detenu with the grounds of detention and to furnish him with the earliest opportunity of making a representation against the order to the appropriate Government and if these conditions are not satisfied, then the further detention of that person would be illegal.
Thus if once it is held that the provisions of Section 8(1) operate as conditions attached to the continued detention and if these conditions remain unfulfilled it would be trite to suggest that this Court cannot order the release of the detenu and that the only order which could be passed is to compel the detaining authority to furnish the particulars of vague grounds.
22. The last contention raised by Shri Nanavati on behalf of the Union during the course of the hearing was that since the Government of India have invoked Section 16A in this case, the original order of detention passed by respondent No. 1 is now not open to any scrutiny as it stands substituted by the declaration made under Section 16A. We find this contention so flimsy that it requires to be stated only to be rejected. Curiously however, it was argued quite seriously and hence we feel it necessary to consider it at some length.
23. We find that this contention smacks of a total misconception of the purpose for which Section 16A is enacted. We have already quoted this section in the earlier part of this judgment. The obvious purpose of the provisions of this section is to provide for the circumstances under which a detenu can be detained for longer than 3 months without obtaining the opinion of the Advisory Board. In this connection if reference is made to Section 10 of the Act, it will be found that according to that section reference to the Advisory Board should be made within 30 days from the date of detention. Section 16A makes an exception to the rule of making reference within 30 days and provides that so far as particular class of cases are concerned the period of making reference to the Advisory Board can be longer than 3 months but not exceeding one year from the date of detention. The section, therefore, stipulates the classes of persons in whose case the period of making reference to the Advisory Board can be extended. In order to determine whether the case of a particular detenu falls within any of the classes mentioned in Section 16A, the section provides that the Central Government must have "reason to believe" that such a detenu belongs to any of the classes mentioned in the section. Thus the "reason to believe" which is contemplated by this section is merely for the purpose of deciding whether a particular detenu falls within any of the classes mentioned in the section and not for the purpose of either the detention or continued detention of that detenu. The result, therefore is that the declaration which is contemplated by Section 16A does not amount to a fresh order of detention. In fact, the invocation of this section does not even "continue" the detention. It merely provides for the extension of time of reference to the Advisory Board. It is apparent that even the Central Government itself does not treat this declaration under Section 16A as a fresh order of detention, because, otherwise, it would have supplied separate grounds for that detention. Under the circumstances this last contention which is advanced by Shri Nanavati on behalf of the Union is totally devoid of any point.
24. This disposes of all the legal contentions raised on behalf of the Union of India by Shri Nanavati. We therefore now proceed to consider the merits of the case. This again takes us to the three grounds of detention which are quoted in the earlier portion of judgment. Reference to these three grounds show that grounds Nos. 2 and 3 are completely vague and do not supply any particulars to the detenu to show how and in what manner he is connected with the incidents which are referred to therein. So far as ground No. 2 is concerned, it first gives the details regarding the seizure of the goods contained in two Ambassador cars at Narmada Bridge, Broach. Then this ground alleges as under:
Enquiries revealed that you were concerned in carrying these seized smuggled goods.
Obviously this allegation which seeks to connect the detenu with the incident which is mentioned in the prior portion of the ground, is totally insufficient to show how the detenu was concerned in carrying the seized smuggled goods. If in this connection a reference is made to the affidavit-in reply filed by the detaining authority, it is found that It contains the following allegations:
4.2. I say that the material also disclosed that on 9-6-74, 2 cars bearing registration Nos. MRW 5687 and BJD 7985 were searched by the Customs officials at Broach and from the car bearing No. BJD 7985, fabrics of foreign origin and mechanical lighters of foreign origin of the total value of Rs. 42640/- were found. From the car bearing No. MRW 5687, fabrics of foreign origin worth Rs. 59560/- were recovered. All these goods were seized as they were smuggled goods. The material also disclosed that the Customs officers thereafter investigated the case and it was revealed that the detenu was concerned in carrying and transportation of the said goods in the said two vehicles.
This is the only explanation which is given by the detaining authority with regard to ground No. 2. It is apparent that though this explanation gives the details as regards the incident of seizure, it gives no details to show how the detenu was concerned in carrying and transportation of the smuggled goods. The affidavit-in-reply, therefore, is not capable of supplying any further particulars to the detenu, or to this Court, and it is as vague as the ground which is originally supplied to the detenu. Let us now see whether there is any further material produced in the record of this case to show the particulars of this ground. These further materials are sought to be supplied by the subsequent affidavit filed by the Collector of Customs, Ahmedabad, during the course of the hearing of this petition. Therein the deponent states as under in para 6:
The detenu is a Memon and stays in Surat. The Department had received intelligence report that in Surat, three Memons (including the detenu) have formed a syndicate known as "Memon Group Syndicate". On 8-6-1974, Mr. P.R. Palia, Inspector of Customs M.S. Surat, had received an information that the Memon Group of Surat had consigned smuggled goods in one yellow car bearing GJD 8597 or 7985 and that another green Ambassador car was to join that yellow car before passing the Broach bridge. It was also informed that the smuggled goods were worth about Rs. 80,000/-. The information was recorded by the Customs Inspector and was conveyed by a lightning call to the Superintendent of Customs Broach. Annexed here to and marked Ann. 2 is a statement on oath by the said Inspector Mr. P.R. Palia. Pursuant to this information, both the cars were intercepted by the MS staff Broach at the Broach bridge. A search of the cars resulted in seizure of goods worth above Rs. 70.000/- which on detailed valuation were found to be of Rs. 1,05,000/-. Inquiry in respect of participation of the detenu in this smuggling is still going on. I say that DRI-1 report is highly confidential and disclosure thereof is against public policy. However, to satisfy the conscience of the Hon'ble Court, the Department is prepared to show these DRI-1 reports to the Hon'ble Court.
A close scrutiny even of this part of the affidavit of the Collector of Customs shows that it does not give any particulars which would connect the present detenu with the incident in question. As a matter of fact, the above referred excerpts conclusively show that the inquiry in respect of the participation of the detenu in this affair is still going on. The natural presumption therefore would be that even at this stage, the department is not certain how the present detenu is concerned with the incident.
25. From these materials, it is clear that even at this stage when the matter was heard by the Court, the respondents have not been able to supply any necessary details either to the detenu or to the Court to show how and in what manner the detenu "was concerned" in carrying the smuggled goods.
26. Now so far as the ground No. 3 is concerned, a perusal thereof shows the same thing. In the first portion of this ground details as regards the incident are mentioned and only the following allegation is made to show how the accused was connected with this incident. The allegation is:
Inquiries revealed that you had been seen on the night of 24/25-7-74 going towards the Bhagwa coast and that you are involved in the smuggling of these goods.
The only information which this ground conveys to the detenu is that he was "involved" in the smuggling of these goods. How and in what manner he was involved is not stated in this ground. Let us now, therefore, see whether the affidavit-in-reply throws any light on the alleged "involvement" of the detenu in the alleged incident.
27. In para 4.3 the detaining authority has stated with reference to to this ground as under:
The material also disclosed that on 25-7-74 the Customs officials at Surat had seized smuggled goods worth Rs. 26,856/- from a car bearing No. GLL 7064 while it was intercepted on the road leading to Bhagwa. The said smuggled goods consisted of fabrics of foreign origin and playing cards of foreign origin. The persons who had been occupying the said car ran away before they could be apprehended. The Superintendent of Customs, Surat, investigated this case and it was revealed that the said goods belonged to the detenu and were transported in the said car at his instance.
The point to be noted is that though the ground No. 3 which is supplied to the detenu refers only generally and vaguely to the involvement of the detenu in the smuggling of the goods in question, the portion of the affidavit-in-reply which is quoted above shows two specific conclusions, which the detaining authority arrived at after checking the materials which were placed before him. These two conclusions were (i) that the goods belonged to the detenu, and (2) that they were transported in the car at his instance. An obvious inference which can be drawn from this is that before the detaining authority passed the order of detention, he had before him the materials which clearly disclosed to him that the smuggled goods belonged to the detenu and that they were transported at his instance. The question, therefore, is if the detaining authority was in possession of these two very important facts which clinched the issue, what was the reason which prompted him to make a general and vague allegation about mere involvement of the detenu in the incident. Obviously the detaining authority has not preferred to convey his own conclusion from the facts checked up by him to the detenu so that the detenu could make his representation effectively and properly to the Government to convince the latter that he was not in any manner "involved" in the matter.
28. In this connection we may also see what the Collector of Customs has to say with regard to this ground. In para 7 of his affidavit he states with regard to ground No. 3 as under:
7. So far as the third ground of detention is concerned, this seizure was also pursuant to an information received by the Department. On 24th July, 1974, late at night, the Department had received an information that some contraband goods were landed on the bank of Tunda creek at 21 hrs. at Bhagwa Mor Village and that three Ambassador cars would start with contraband goods from Tunda Falia for Surat via Devji Cross Roads and Bhagwa Mor-Olpad Road. Acting on this information, the officer had kept a watch on Devji Cross Road and one officer Shri Y.C. Barot had with the help of Police, inspected one car bearing No. GJL 7064 and by working on the clues, the officers were able to seize further goods worth about Rs. 92.400/- from village Bhagwa Mor on Tunda creek. Annexed hereto arid marked Ann. 3 (colly) are the statements of both of the officers who were concerned with the seizure of the said goods. One mechanic driver S.V. Kumarati has given a statement which refers to the detenu but since further investigation is going on, it is not in public interest or for safety of witnesses to make further disclosures at this stage.
An interesting fact which should be noted with regard to these allegations is that they no where disclose either that the goods in question belonged to the detenu or that they were transported at his instance. It Is, therefore, difficult to understand from what materials the detaining authority came to the conclusion that the goods in question belonged to the detenu and that they were transported at his instance. Be that as it may, the fact remains that even the affidavit filed by the Collector of Customs taken at its face value, does not reveal the particulars enabling the detenu to make a representation against his detention to the Government.
29. This scrutiny of grounds Nos. 2 and 3 completely reveals that the grounds are vague and have remained vague even upto this date.
30. The contention of the learned Government Pleader Shri Desai, however, was that these grounds cannot be considered vague because they convey to the detenu in ground No. 2 that he was concerned in carrying and transporting smuggled goods and in ground No. 3 that he was involved in the smuggling of the goods in question. According to the learned Government Pleader, therefore, these allegations would be quite sufficient to enable the detenu to make his representation before the Government and to convince the Government that he is totally innocent. We find that any approach of this kind is totally unwarranted. The general phrases like 'concerned in' 'or 'involved in' convey nothing. One may be concerned in transportation of a particular vehicle either as an owner or as a hirer or as a driver. He may be concerned in the/transportation also as a principal actor or as an abettor. The question is which out of these various alternatives the detenu should prefer and should explain in his representation. Suppose the detenu presumes that the allegation that he was concerned in transporting the goods means that he was himself driving the vehicle in question and the State Government is possessed of the materials which show that he was concerned in transporting the smuggled goods not as a driver but as the owner, his representation is bound to be rejected, and this rejection would purely be the result of the vagueness of the ground which is conveyed to him. If such grounds are accepted as proper, it would surely make the detenu's right to obtain the grounds and to make representation at the earliest stage totally illusory.
31. So far as the third ground is concerned, it contains the vice of vagueness even in a greater degree because, it merely says that the detenu was "involved" in the smuggling of goods. One would be involved as an owner, another person would be involved as a carrier, a third person would be involved as an abetter. The ground does not mention how the detenu was supposed to be involved in the affair and, therefore, the detenu would be at a loss to understand what explanation he was expected to supply.
32. As to what is a vague ground, has been considered by the Supreme Court as early as the year 1951 in Stale of Bombay v. Atmaram Shridhar Vaidya . We have already made a reference to the facts of this case. Discussing the question of vagueness, Kania C.J. has made the following pertinent observations:
The grounds which form the basis of satisfaction when formulated are bound to contain certain facts, but mostly they are themselves deductions of facts from facts.
Then proceeding further, he has observed what these grounds should indicate. Says he:
By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall. These conclusions are the "grounds" and they must be supplied. No part of such "grounds" can be held back nor can any more "grounds" be added thereto. What must be supplied are the "grounds on which the order has been made" and nothing less. The second right of being afforded the "earliest opportunity of making a representation against the order" is not confined to only a physical opportunity by supplying paper and pen only, in- order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order. It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Ordinarily, the "grounds" in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act, the detenu is suspected of being engaged in and that will bo sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him.
These observations are very much pertinent because they state that even thought the grounds are mere conclusions of facts, they should be such which would enable the detenu to make an intelligible representation against his detention. The above quoted observations of Kania C.J. bring out the following conclusions regarding the nature of the grounds which are expected to be supplied to the detenu:
(1) The grounds are conclusions of facts and not a complete and detailed recital of all facts.
(2) The conclusions should show the prejudicial acts and activities complained of.
(3) The grounds must be such that they should enable the detenu to make the representation intelligible to meet the charges contained in them, and
(4) They should therefore indicate the prejudicial act which the detenu is suspected of being engaged in.
Thus, even if it is that the grounds should be the conclusions of facts, they are not mere bald statements of conclusions but they should contain the materials which would enable the detenu to make his representation intelligible enough to meet the charges contained in them. This ratio of Atmaram's case is further explained by the Supreme Court in Dr. Ram Krishan Bhardwaj v. State of Delhi and Ors. in the following words:
in State of Bombay v. Atmaram Shridhar Vaidya
where this Court held by a majority that the person detained is entitled, in addition to the right to have the grounds of his detention communicated to him, to a further right to have particulars "as full and adequate as the circumstances permit" furnished to him so as to enable him to make a representation against the order of detention. It was further held that the sufficiency of the particulars conveyed in the 'second communication" is a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation "which on being considered, may give relief to the detained person.
It should be noted here that the grounds which were supplied to the detenu in Ram Krishan's case were to a great extent similar to the grounds which are supplied to the; detenu in this case. The Supreme Court held that such vague and general grounds are not sufficient and cannot justify the further detention of the detenu. We find that ever since the decision of the Supreme Court in Atmaram's case, the legal concept about the vagueness has sufficiently progressed. This will be clear by reference to the recent decision given by the Supreme Court in Khudiram Das v. State of West Bengal and Ors. W.P. No. 324/74 decided on 26th November, 1974, therein Bhagwati, J. speaking for the Court posed the following questions for consideration:
What does the word "grounds" mean? Does it mean only the final conclusions reached by the detaining authority on which alone the order of detention can be made, or does it include the basic facts and materials from which the conclusion justifying the order of detention are drawn by the detaining authority.
After posing this question, his Lordship has entered into a long discussion on the point and has observed as under:
The communication of the grounds of detention is, therefore, also intended to subserve the purpose of enabling the detenue to make an effective representation. If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that "grounds" mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based.
While considering this question, the Supreme Court has also quoted the following observations made by the very same Court in Golam Golam Mallick v. The State of W.B. W.P. No. 270 of 1974 dt. 12th September, 1974.
...in the context, "grounds" does not merely mean a recital or reproduction of grounds of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricated to a bare statement of conclusions of fact. It means something more. That "something" is the factual constituent of the authority. The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by "grounds" within the contemplation of Article 22(5) and Section 8, and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest.
Therefore the Court has recorded its conclusions in the following words:
It is, therefore, clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu.
Thus, the original idea that the grounds should contain merely bare conclusions which enable the detenu to make intelligible representation is clarified by this latest decision by stating that they should contain "basic facts and materials which have been taken into account by the detaining authority."
33. But even if the most conservative view of the matter is taken and the vagueness of grounds supplied to the present detenu is checked on the basis that only the conclusions which enable the detenu to make intelligible representation should be stated, we find that the grounds which are supplied to the present detenu fail in the test, inasmuch as they do not even contain the conclusions on which the detaining authority has ordered the detention. For instance, if we take ground No. 3, the affidavit-in reply makes it clear that the detaining authority after considering the materials which were placed before it came to two conclusions, namely, (1) that the goods in question belonged to the present detenu and (2) that the goods were transported at the instance of the detenu. If these two facts were the conclusions drawn from the materials placed before the detaining authority, then obviously even on the test supplied by Atmaram's case these two conclusions should have been conveyed by the detaining authority in the grounds supplied to the detenu. Since this is not done, it must follow that ground No. 3 is totally vague.
34. One more aspect which is required to be mentioned with regard to ground No. 3 is that as already noted above, it makes a general statement that the detenu was "involved in smuggling of goods" seized on 25th July, 1974. It does not show how detenu was involved, whether as an owner or as the carrier or as a servant, whether he was the exporter or the importer of the so called smuggled goods and whether he acted as a principal actor or an abetter. While the ground is blissfully vague on all these aspects, the affidavit-in-reply as already noted above, comes out with a clear allegation that these goods belonged to the detenu and were transported at his instance. Thus according to the affidavit-in-reply these facts were revealed from the investigation conducted by the Superintendent of Customs. It is thus clear that when the detention order was passed, respondent No. 1 took into consideration some materials which disclosed the above referred two conclusions. The question is what would be the effect if these conclusions are not conveyed to the detenu in the grounds supplied to him. Answer to this question is a supplied by the Supreme Court in Daktar Mudi v. State of West Bengal , wherein the
following pertinent observations are found:
...if the detention order is .held invalid on this count, it would be equally so in a case where there are other materials, on which the detaining authority could have been influenced in arriving at his subjective satisfaction but which he has not mentioned in the grounds of detention, nor communicated them to the detenu. In such circumstances whether the other materials on record had any effect on the mind of the detaining authority cannot be accepted solely on his statement, because to admit that he alone has such a right would be to accept that the mere ipsi dixit of the detaining authority would be sufficient and cannot be looked into. There is a possibility that certain materials on record would disclose that the activities of the detenu are of a serious nature having a nexus with the object of the Act, namely, the prevention of prejudicial acts affecting the maintenance of supplies and services essential to the community, and having proximity with the time when the subjective satisfaction forming the basis of the detention order had been arrived at. If thee elements exist, then the Court would be justified in taking the view that these must have influenced the subjective satisfaction of the detaining authority and the omission to indicate those materials to the detenu would prejudice him in making an effective representation. If so, the detention order on that account would be illegal.
In the above referred Khudiram 's case this view has been accepted and endorsed. Thus, these observations clearly show that the non-mention of the materials which have influenced the satisfaction of the detaining authority can, in a particular case, introduce in the grounds the vice of vagueness. Such a vice has been introduced in the ground No. 3.
35. To conclude, therefore, we have no hesitation in holding that the grounds Nos. 2 and 3 suffer from the vice of extreme vagueness.
36. We further find that the record produced in this case discloses that the detaining authority has furnished the ground No. 3 without proper application of his mind to the record of the case. We have already referred to the contents of para 7 of the affidavit-in-reply filed by the detaining authority in explanation of ground No. 3. As already stated above, this explanation shows that the material placed before the detaining authority revealed two very specific facts which completely clinched the issue. These facts were that the smuggled goods belonged to the detenu and that they were transported by the detenu. Believing that this claim of the detaining authority is correct, the very pertinent question which arises for our consideration is why the said authority preferred to state the ground No. 3 in very vague and general terms inspite of the fact authority came across the clues which were quite specific in nature and which dispensed with the necessity of resorting to any generality or vagueness. We don't expect any rational and reasonable man, much less a responsible authority like a District Magistrate, to resort to such a generality when specific and clear-cut facts were available. Under these circumstances two alternative conclusions can be drawn. They are: (1) either the said authority did not apply his mind to the material placed before him and put forward the ground No. 3 in a careless and a casual manner, (2) or he applied his mind properly and stated the ground No. 3 in general terms because the materials placed before him did not justify any other conclusion. In either of these two eventualities the ground No. 3 stands vitiated. In case of the former, non-application of mind becomes evident, while in case of the latter credibility of the claim, that the materials disclosed to the detaining authority that the goods belonged to the detenu and that they were transported at his instance, is rendered highly doubtful. Realising this situation the learned Government Pleader contended that since the affidavit-in-reply has remained unchallenged by any affidavit-in-rejoinder, the explanation contained in para 7 above referred to must be accepted as correct and the fact that the ground No. 3 makes the allegations regarding the connection of the detenu with the incident in general terms should be taken only as a defective manner of expression. We find ourselves unable to accept this contention. We fail to comprehend how any affidavit-in-rejoinder making a denial of the detaining authority's claim as to what was actually revealed from the materials placed before him, would have been, in any manner effective in view of the fact that neither the detenu nor the petitioner could be expected to know what materials were examined by the detaining authority in his office chamber before ordering detention. We also find ourselves unable to hold that the generality or vagueness of the language in ground No. 3 is merely the result of a defective manner of expression. The respondent No. 1 who has framed this ground, has himself not said so anywhere in the record of this case.
37. In order to convince us that the claim of the detaining authority that materials produced before him actually revealed that the smuggled goods referred to in ground No. 3 belonged to the detenu and that they were transported at his instance, the learned Government Pleader offered to show to us the relevant file of the first respondent. When we showed our reluctance to go beyond the materials produced in the Court record the learned Government Pleader insisted that it is not only proper, but it is also our duty to check up these outside materials to satisfy our conscience. In support of this insistence, he put reliance upon the following observation, made by the Supreme Court in the above referred decision in Khudiram v. State of West Bengal. In that case, the officer who passed the order of detention contended that though certain materials including some history sheets regarding the detenu were looked into by him before passing the order of detention, he had not taken into consideration those history sheets for the purpose of passing the order of detention. The court thereupon wanted to see the materials which were considered by the detaining authority but an objection was taken that the Court was not entitled to see these materials. Dealing with this contention, the Supreme Court is found to have made the following observations:
Where the liberty of the subject is involved it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupluously observed and the subject is not deprived of his personal liberty otherwise then in accordance with law. Section 8(1) of the Act, which merely respects the constitutional requirements of Article 22(5) insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well to examine what are the basic facts and materials which actually and in fact weighed' with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts of materials, apart from those admitted by it. which could have reasonatly influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority.
Relying upon these observations, the learned Government Pleader contended that we must see the record which is submitted by him for our reference because now it becomes our "duty' to do so. We find that the above quoted observations of the Supreme Court are not property appreciated by the learned Government Pleader. What these observations mean is that whenever the Court finds it necessary for its own purpose to look into the record containing materials which influenced the mind of the detaining authority, these materials must be produced before the Court. But these observations do not carry any right to any of the litigating parties before the Court to insist that such materials must be checked up by the Court even if the Court feels that such a checking is not necessary. There was nothing to prevent the detaining authority in this case to produce proper materials through a proper affidavit, if the said authority was so advised. These proceedings have been very hotly contested by the respondents and they have not failed to avail of any opportunity to produce in the Court record any material which they have thought proper even during the course of the arguments. Under the circumstances if they have advisely refrained from producing any material in the Court record they can't expect the Court to come to their rescue by looking at the extraneous materials which the Court does not want to look at. The above quoted observations of the Supreme Court are meant to enlarge the Court's discretionary jurisdiction in cases where the Court deems it necessary, in interest of justice, to look into the materials which are not produced in the Court record. If the court feels that in interest of justice it is necessary to see such materials, it does become its "duty" to see the same. But the Court owes no such "duty" to party to the litigation which comes forward with such a request with view to cover up the lacuna of its case. We have therefore rejected this prayer of the learned Government Pleader.
Since we find, having regard to the affidavit-in-reply filed by the detaining authority with regard to ground No. 3, that the said authority has not applied his mind to the materials before him at the time of detention, we think that this is another reason for which this petition should be allowed.
38. As stated above, two of the grounds, namely, grounds Nos. 2 and 3 are found to be vague. In addition, ground No. 3 is also found to be one which is advanced without proper application of mind. That being so on the ratio of the decision given by the Supreme Court in Prabhu Dayal v. District Magistrate, Kamrup , the entire order of detention is vitiated. In this view of the matter, it is not necessary for us to go into the question whether the ground No. 1 is vague or stale.
39. Under these circumstances, this writ petition should be allowed and the rule should be made absolute without any order as to costs. The detenu is ordered to be released on the expiry of 72 hours from 2-00, p. m. to-day.
40. Shri Vakharia representing the Union of India, prays for a certificate for leave to appeal to the Supreme Court, In view of the important and substantial questions of law involved in this matter, the said leave is granted under Article 133(l)(c) of the Constitution.