Ichhu Devi Choraria v. Union of India & Ors. (1980)

Court: Supreme Court of India

Date of Judgement: 9 September 1980

Bench: Justice P.N. Bhagwati and Justice E.S. Venkataramiah

Citation: AIR 1980 SC 1983; (1981) 1 SCR 640; 1980 SCC (4) 531

The decision in Ichhu Devi Choraria v. Union of India & Ors. is an important judgement on preventive detention under the Constitution of India. The case deals with the procedural safeguards guaranteed under Article 22(5) of the Constitution and Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).

The Supreme Court examined whether delay in supplying relied-upon documents and delay in considering representations made by the detenu rendered the continued detention illegal. The judgement strongly emphasised that preventive detention is an extraordinary power and must strictly comply with constitutional safeguards.

Facts of Ichhu Devi Choraria v. Union of India & Ors. Case

An order of detention dated 27 May 1980 was passed against the detenu under the COFEPOSA Act. The detention was executed on 4 June 1980. The order stated that detention was necessary to prevent the detenu from smuggling goods and abetting the smuggling of goods.

On the same day, the detenu was served with the grounds of detention. The grounds referred to several documents and statements, including two tape-recorded conversations.

Soon after detention, the detenu began seeking copies of the documents and materials relied upon in the grounds of detention:

• On 6 June 1980, a letter was addressed requesting all statements, documents and materials necessary to make an effective representation.
• On 9 June 1980, another representation was made to the Deputy Secretary requesting supply of the relied-upon documents, transcripts of the tapes, and production of the original tapes so that it could be shown that the voice recorded was not that of the detenu.
• On 26 June 1980, a further representation was made to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary, pointing out that earlier requests had not been complied with and that without supply of tapes, the hearing before the Advisory Board would be futile.

Meanwhile, the Investigating Officer of the Customs Department visited the Central Prison on 8 July 1980 with the tapes and played them in the presence of the detenu and the Deputy Superintendent of the Central Prison.

Copies of documents and statements were supplied only on 11 July 1980. However, copies of the tapes were supplied only on 20 July 1980.

The representations of the detenu were rejected by the Government by letter dated 15 July 1980.

A writ petition under Article 32 of the Constitution was filed by the mother of the detenu challenging the continued detention.

Legal Issues

The Supreme Court in Ichhu Devi Choraria v. Union of India & Ors. considered the following main issues:

1. Whether failure to supply copies of statements, documents and tapes along with the grounds of detention violated Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act.
2. Whether delay in supplying copies of relied-upon materials denied the detenu the earliest opportunity of making an effective representation.
3. Whether delay in considering the representations made by the detenu rendered the continued detention illegal.
4. Whether the detenu was entitled to release due to violation of constitutional safeguards.

Arguments Raised

It was contended that:

• The detaining authority did not serve copies of statements, documents and tapes along with the grounds of detention.
• Copies were supplied only on 11 July 1980, and tapes were supplied only on 20 July 1980.
• The delay was wholly unjustified.
• The detenu was denied the earliest opportunity to make an effective representation.
• Continued detention was therefore illegal and void.

Constitutional and Statutory Framework

Article 22(5) of the Constitution of India

Article 22(5) provides two important safeguards:

1. The detenu must be informed of the grounds of detention.
2. The detenu must be afforded the earliest opportunity of making a representation against the order of detention.

These safeguards form the core protection available in preventive detention cases.

Section 3(3) of the COFEPOSA Act

Section 3(3) requires that grounds of detention must be communicated to the detenu within five days from the date of detention, and in exceptional circumstances, not later than fifteen days, with reasons recorded in writing.

The Court read Article 22(5) together with Section 3(3) to determine whether the constitutional mandate had been complied with.

Observations of the Supreme Court in Ichhu Devi Choraria v. Union of India & Ors.

Preventive Detention as an Extraordinary Power

The Court emphasised that preventive detention is an extraordinary power. It allows detention without trial and constitutes an encroachment on personal liberty. Such power is tolerated in a free society only as a necessary evil for protection of public order and security.

Courts must therefore strictly examine whether constitutional and statutory safeguards are complied with. The judiciary must lean in favour of personal liberty.

The Court clearly stated that even if a person is suspected to be a smuggler, detention must strictly follow the Constitution and the law. If there is breach of any safeguard, the detenu must be set at liberty, irrespective of the nature of allegations.

Duty of the Detaining Authority

In habeas corpus petitions, once a rule is issued, it becomes the duty of the detaining authority to justify the detention and to satisfy the Court that it conforms to mandatory provisions of law.

The burden lies on the detaining authority to explain delay and demonstrate that the requirements of law were satisfied.

Supply of Documents and Materials

The Court held that the right to be supplied copies of documents, statements and materials relied upon in the grounds of detention flows directly from the right to make a representation.

Unless copies of relied-upon materials are furnished, the right to representation becomes meaningless.

On a proper interpretation of Article 22(5) read with Section 3(3) of the COFEPOSA Act, the Court held:

• Copies of relied-upon documents must be supplied along with the grounds of detention.
• In any case, they must be supplied within five days.
• In exceptional circumstances, with reasons recorded in writing, they may be supplied within fifteen days.
• Failure to comply renders continued detention illegal and void.

Delay in the Present Case

In this case:

• Requests for documents were made on 6 June and 9 June 1980.
• Copies were supplied only on 11 July 1980.
• Copies of tapes were supplied only on 20 July 1980.
• There was a delay of more than one month.

The Court examined whether this delay was satisfactorily explained.

The affidavits filed on behalf of the State Government and Customs authorities did not satisfactorily explain the delay, particularly the delay between 12 June and 24 June 1980.

Since the burden was on the detaining authority to explain the delay and no sufficient explanation was given, the Court held that there was unreasonable delay in supplying the documents.

This delay denied the detenu the earliest opportunity of making an effective representation.

Delay in Considering Representations

The Court also examined delay in deciding the representations:

• Representation dated 9 June 1980 was received on 14 June 1980.
• Representation dated 26 June 1980 was received on 30 June 1980.
• No decision was taken until 14 July 1980.

There was no explanation in any affidavit for this delay.

The Court held that unexplained delay in considering representations is sufficient to invalidate continued detention.

Prosecution Aspect

The Court also observed that even after more than six months, no charge sheet had been filed against the detenu in relation to the incidents referred to in the grounds of detention.

It observed that there should be no unreasonable delay in completing investigation and prosecuting cases if evidence justifies such action.

Ichhu Devi Choraria v. Union of India & Ors. Judgement

The Supreme Court allowed the writ petition.

It held:

• There was unreasonable delay in supplying copies of documents and materials relied upon in the grounds of detention.
• There was unexplained delay in considering the representations of the detenu.
• The constitutional requirement under Article 22(5) was violated.
• Continued detention was illegal and void.

The Court directed that the detenu be released forthwith from detention.

Conclusion

Ichhu Devi Choraria v. Union of India & Ors. is a landmark judgement in preventive detention jurisprudence. The Supreme Court clearly held that constitutional safeguards under Article 22(5) are not mere technicalities. They are fundamental protections against arbitrary detention.

Unreasonable delay in supplying relied-upon documents and in considering representations renders continued detention illegal. The decision demonstrates that courts must zealously protect personal liberty and ensure that extraordinary powers of preventive detention are exercised strictly in accordance with the Constitution and the law.