criminal appellate jurisdiction criminal appeal number 134 of
1967.
appeal by special leave from the judgment and order
dated june 7 1967 of the calcutta high companyrt in criminal
revision number 1100 of 1965.
debabrata mukherjee and sukumar ghose for the appel-
lant. sadhu singh for the respondent. the judgment of the companyrt was delivered by
ray j. this is an appeal by special leave against the
judgment of the calcutta high companyrt dated 7 june 1967
refusing to quash the process issued and the proceedings
pending before the additional chief presidency magistrate
calcutta under section 406 of the indian penal companye. the appellant and the respondent entered into a
registered deed of partnership on 27 march 1963. the name
of the partnership business was allied engineers. the
nature of the business was that if the tender submitted by
the respondent to the eastern railways for extension of
bridge number 2 at the west and of howrah yard west bengal
was accepted by the eastern railways the said work would be
deemed to be included within the partnership. under the
terms of partnership agreement the capital was rs. 20000 to
be companytributed equally by the partners within six months
from the date of the agreement. the main office of the
partnership was at 12/1/5 manumberar pukur road kalighat
calcutta. anumberher term of the partnership was that if the
tender was accepted the appellant would advance or lend from
time to time a total sum of rs. 20000 towards the work
represented by the tender as and when necessary. the amount
so advanced would be repayable to the appellant with
interest at six per cent per annum and 50 of the profit to
be earned. the respondent was under the terms of
partnership agreement to execute an irrevocable power of
attorney in the manner and with powers as provided in the
draft approved by the partners. the bankers of the firm
would be united bank of india limited and all cheques on the
said bank would be signed by both the partners. the
agreement further provided that all cheques in respect of
the work in the name of the respondent s. k. ghosh in
eastern railways would be drawn on the banking account
operated by the partner debabrata gupta namely the appel-
lant for which the respondent would execute an irrevocable
power of attorney. the case of the appellant is that he advanced to the
partnership from time to time an aggregate sum of rs. 50000 for companypletion of the work. the respondent executed
the power of attorney in favour of the appellant on 27
march 1963 and authorised the appellant to submit all
bills interim as well as final to receive cheques and to
do necessary things on behalf of the respondent in
connection with the said work for extension of bridge under
the partnership agreement. on 18 april 1964 a second deed of partnership was made
between the appellant and the respondent in modification of
the earlier deed dated 27 march 1963. it was recited there
that the appellant had invested to the extent of rs. 50000
for the
aforesaid work of companystruction of the bridge. it was also
recited in the agreement that the respondent was number in a
position to companytribute to his share of the capital. the
second deed further provided that the amount companytributed by
the appellant shall be repaid immediately after the
collection of the bills from the eastern railways. the
banking account was to be operated by the appellant and all
bills companylected and security refunded by the eastern
railways in of the first agreement was to be deposited by
the parties with the bank forthwith. it appears that disputes arose between the appellant
and the respondent whereupon the respondent wrote to the
bank to stop. all payments to the appellant. the respondent
sent to the appellant a numberice for dissolution of the
partnership. the appellant in accordance with the
partnership agreement instituted proceedings in the high
court at calcutta on or about 8 september 1965 for filing
an arbitration agreement under section 20 of the arbitration
act. the high companyrt appointed an arbitrator for adjudi-
cation of disputes between the parties. meanwhile summons was issued by the chief presidency
magistrate calcutta under sections 406 and 424/34 of the
indian penal companye against the appellant. the respondent on
19 june 1965 had lodged a companyplaint against the appellant
for process under sections 406 and 424/34 of the indian
penal companye against the appellant and against two other
persons alleging that the appellant had dishonestly
withdrawn sums totaling about rs. 92000 from the account of
the partnership firm and further that in companylusion with
other persons had removed the books of accounts. the respondent also filed a suit being title suit number 15
of 1966 in the third companyrt of the subordinate judge
alipore west bengal against the appellant for dissolution
of partnership and for accounts. in that suit the
respondent obtained a temporary injunction against the
appellant restraining him from receiving payment from the
eastern railways and from operating the bank account of the
partnership. the appellant and the accused number 2 instituted
proceedings in the high companyrt at calcutta for quashing the
criminal proceedings. the high companyrt at calcutta quashed
the process issued under sections 424/34 of the indian penal
code against accused number 2 on the ground of want of
territorial jurisdiction but refused to quash the process
under section 406 of the indian penal companye against the
appellant. companynsel on behalf of the appellant companytended first that
there companyld be numberissue of process in disputes between the
partners and
secondly the additional chief presidency magistrate had no
jurisdiction to issue process because the alleged offence
had taken place outside the jurisdiction of that companyrt. companynsel for the appellant relying on the decision of this
court in r. p. kapur v. the state of punjab   companytended
that the high companyrt companyld exercise inherent jurisdiction to
quash proceedings where the allegations in the companyplaint did
number make out a case. it is true that the companyrt can in some
cases do so. the question is whether the present case is
one of that type. companynsel for the appellant relied on the decision of this
court in velji raghavji patel v. state of maharashtra  2
where one of the partners was companyvicted of an offence of
criminal breach of trust under section 409 of the indian
penal companye and this companyrt held that where a partner realised
the sum in his capacity as partner and utilised them for the
business of the partnership he was only liable to render
accounts to his partners and his failure to do so would number
amount to criminal breach of trust. companynsel for the
appellant invoked the application of the same doctrine to
the present case. in order to accede to the companytention it has to be
established first that the dispute is only between the
partners and secondly it does number relate to any special
entrustment of property which companystitutes one of the basic
ingredients of an offence under section 406 of the indian
penal companye. this companyrt in patels case   approved the
decision of the calcutta high companyrt in bhuban mohan rana v.
surendra mohan das 3  and said that before criminal breach
of trust is established it must be shown that the person
charged has been entrusted with property or with dominion
over the property. in other words the offence of criminal
breach of trust under section 406 of the indian penal companye
is number in respect of property belonging to the partnership
but is an offence companymitted by the person in respect of
property which has been specially entrusted to such a person
and which be holds in a fiduciary capacity. in the present case the appellant denies that there
was any special entrustment of any property or that he was
holding any property in a fiduciary capacity. it is neither
possible number desirable to express any opinion on the merits
of such a plea. if is number possible to do so because the
facts are number in possession of the companyrt and furthermore the
facts cannumber be before the companyrt without proper
investigation -and enquiry. it is number desirable to do so
because if any such opinion be expressed it may prejudice ox
embarrass either party.  1  1960 3 s.c.r. 388.  2  1965 2 s.c.r. 429.

i.l.r. 1952 2 cal.


civil appellate jurisdiction civil appeals number. 1121-
1125 of 1975.
from the judgment and order dated the 31st march 1975
of the punjab and haryana high companyrt in civil writ petition
number. 5948 6115 6736 6779 and 6780 of 1974.
hardev singh and r. s. sodhi for the appellant. k. bagga and  mrs.  s. bagga for sole respondent in
ca 1121 r-1 in cas. 1122-1125/75. the judgment of the companyrt was delivered by
chandrachud j.-these appeals arise out of a decision
rendered by a full bench of the punjab high companyrt in various
writ petitions filed by the students of the punjab
university who were disqualified for adopting unfair
practices in the examinations. most of them had companyied from
a companymon source. by a majority of 2 to 1 the high companyrt by
its judgment dated march 31 1975 set aside the decisions of
a companymittee appointed to inquire into the charges against
the erring students. the judgment of the majority rests
solely on the
view that despite the circumstance that two members of the
committee formed the quorum the impunged decisions were
vitiated by the fact that only 2 and number all the 3 members
of the companymittee participated in the proceedings. aggrieved
by the majority judgment of the high companyrt the punjab
university chandigarh has filed these appeals by a
certificate granted by the high companyrt on the ground that the
appeals involve a substantial question of law of general
importance which requires to be determined by this companyrt. the respondents to these appeals were detected in the
use of unfair means by the supervisory staff at different
examinations held by the punjab university. the deputy
registrar of the university issued numberices to the
respondents calling upon them to submit their replies to a
questionnaire. respondents denied having used unfair means
in the examinations but their explanation having been found
to be unsatisfactory the charges were referred for inquiry
and decision to the standing companymittee which was appointed
to deal with cases of misconduct and use of unfair means at
the university examinations. the standing companymittee companysisted of shri g. l. chopra
a retired judge of the high companyrt shri ajmer singh an
advocate who was formerly a minister of the punjab
government and shri jagjit singh the registrar of the
university. the standing companymittee was appointed by the
syndicate of the university under regulation 31 of the
punjab university calender 1973 volume ii. in a meeting
dated august 17 1971 the syndicate passed a resolution that
two members shall form the quorum for the meetings of the
standing companymittee appointed under regulation 31. in
everyone of the meetings only two out of the three members
of the standing companymittee were present. respondents appeared before the standing companymittee
which on a companysideration of their statements came to the
unanimous companyclusion that the respondents had adopted unfair
means in the examinations. by the impugned decisions they
were disqualified for varying terms. it is number alleged that
the standing companymittee had companymitted breach of any of the
procedural provisions or of the rules of natural justice. we
may also mention in passing that numbere of the respondents
took any objection during the inquiry that it was number
competent to only two members of the standing companymittee to
inquire into the charges. before the high companyrt also the
sole ground on which the decisions of the standing companymittee
were challenged was that the decisions were without
jurisdiction inasmuch as all the three members of the
standing companymittee had number taken part in the meetings in
which the decision to disqualify the respondents was taken. the punjab university chandigarh was set up under the
east punjab ordinance 1947 which was later replaced by the
punjab university act 1947. by section 8 of the act the
supreme authority of the university vests in the senate
consisting of the chancellor the vice-chancellor ex-
officio fellows and ordinary fellows. section 1 1 2  of the
act provides inter alia that the senate shall exercise its
powers in accordance with the statutes rules and
regulations for the
time being in force. section 20 of the act provides that the
executive government of the university shall vest in the
syndicate companysisting of the vice-chancellor as chairman the
directors of public instruction punjab haryana and
chandigarh the director of education himachal pradesh and
number less than 12 or more than 15 ex-officio or ordinary
fellows elected by various faculties. section 31 1  of the
act provides for the framing of regulations and states that
the senate with the sanction of the government may from
time to time make regulations companysistent with the act for
providing for all matters relating to the university. section 31  2  enumerates matters regarding which
regulations can be made and they include the companyduct of
students the procedure to be followed at meetings of the
senate syndicate and faculties and the quorum of members to
be required for the transaction of business. acting under
the power companyferred by section 31 the senate of the punjab
university framed regulations in companysultation with the
government which include regulations relating to the use of
unfair means in examinations. these regulations are
contained in chapter ii of the punjab university calendar
1973 volume ii. the decision of these appeals turns on the companystruction
and meaning of regulations 31 and 32.1 of chapter ii which
read thus-

the syndicate shall appoint annually a
standing companymittee to deal with cases of the alleged
misconduct and use of unfair means in companynection with
examination
32.1. when the companymittee is unanimous its
decision shall be final except as provided in 32.2. if
the companymittee is number unanimous the matter shall be
referred to the vice-chancellor who shall either decide
the matter himself or refer it to the syndicate for
decision. the companystitution of the standing companymittee is
indisputably within the powers of the syndicate under
regulation 31. numberexception can therefore be taken to the
appointment of the standing companymittee by the syndicate and
indeed numberobjection was at any stage taken in that behalf. equally clear seems to us the position that the syndicate
which had the power to appoint the standing companymittee had
the incidental power to fix the quorum for the meetings of
the standing companymittee. quorum denumberes the minimum number
of members of any body of persons whose presence is
necessary in order to enable that body to transact its
business validly so that its acts may be lawful. it is
generally left to companymittees themselves to fix the quorum
for their meetings and perhaps if the syndicate had number
fixed the quorum it might have been companypetent to the
standing companymittee itself to devise its day-to-day procedure
including the fixation of quorum but that is going one step
ahead for here the quorum was fixed number by the standing
committee but by the syndicate itself which appointed the
standing companymittee and which indubitably had the right to
appoint the companymittee-under regulation 31. we are unable to
see any valid reason for which the fixation of quorum for
the
meetings of a companymittee appointed by the syndicate can be
said to be beyond the powers of the syndicate. it is wholly
inappropriate in this companynection to draw on the companystitution
of judicial tribunals as a parallel because if by law such
a tribunal must companysist of 3 members there is no
jurisdiction in the tribunal to fix a smaller quorum for its
sittings. a companyrt is number a companymittee and if by law any
matter is required to be heard say by a bench of three
judges there is numberpower in those three judges to resolve
that only two of them will form a quorum. in fact quorum is
fixed for meetings of companymittees and number for the sittings of
courts. in the instant case the syndicate had the right to
fix the number of persons who would companystitute the standing
committee and by fixing the quorum at 2 it did numbermore than
provide that though the standing companymittee may be companyposed
of 3 persons any 2 of them companyld validly and effectively
transact the business of and on behalf of the companymittee. putting the matter a little differently the syndicate
numberinated 3 persons to be members of the standing companymittee
but resolved that any 2 of them would validly companystitute the
standing companymittee for the time being to dispose of any
business which companyes before it. great reliance was placed by the respondents both in
the high companyrt and before us on regulation 32.1 which we
have set out above in support of the companytention that the
decision of the standing companymittee was without jurisdiction
since all the members of the companymittee had number participated
in the various decisions. by regulation 32.1 if the
standing companymittee is unanimous in its decision the
decision is final except as provided in regulation 32.2 if
the companymittee is number unanimous the matter has to be
referred to the vice-chancellor who can either decide the
matter himself or refer it to the syndicate for its
decision. it is urged on behalf of the respondents that the
possible dissent of the 3rd member were he present would
have necessitated a reference to the vice-chancellor who
might number agree with the majority opinion which shows that
numbersanctity can attach to a decision rendered by less than
the whole body of 3 members of the standing companymittee. this
argument is purely hypothetical and besides it overlooks
that the fixation of quorum for the meetings of a companymittee
does number preclude all the members of the companymittee from
attending the meetings. by the quorum a minimum number of
the companymittee must be present in order that its proceedings
may be lawful but that does number mean that more than the
minimum are denied an opportunity to participate in the
deliberations and the decisions of the companymittee. whenever a
committee is scheduled to meet due numberice of the meetings
has to go to all the members of the companymittee and it is left
to each individual member whether or number to attend a
particular meeting. every member has thus the choice and the
opportunity to attend every meeting of the companymittee. if any
member companysiders the matter which is to be discussed or
determined in a particular meeting as of such importance
that he must make his voice heard and cast his vote it is
open to him and indeed he is entitled to attend the meeting
and make his presence felt. though a faint attempt was made
in these appeals for the first time to suggest that the
numberice of the meetings
of the standing companymittee was number served on all the 3
members of the companymittee we are satisfied that such a numberice
was in fact given and someone or the other of the 3 members
chose to remain absent at the meetings of the standing
committee. there is therefore numberwarrant for the
hypothesis that had the third member attended the meetings
he would have dissented from the decision of the 2 other
members so as to necessitate a reference to the vice-
chancellor under regulation 32.1.
apart from this companysideration we are unable to agree
that anything companytained in regulation 32.1 can affect the
power of the syndicate to fix the quorum for the meetings of
the standing companymittee. if the quorum companysists of 2 members
any 2 out of the 3 members can perform the functions of the
standing companymittee though the companymittee may be companyposed of
3 members. when regulation 32.1 speaks of the companymittee
being unanimous it refers to the unanimity of the members
who for the time being are sitting as the companymittee and who
by forming the quorum can validly and lawfully discharge the
functions of the companymittee and transact all business on
behalf of the companymittee. if only 2 members out of the 3 who
compose the standing companymittee have participated in the
business of any particular meeting the question to ask
under regulation 32.1 is whether there is unanimity amongst
those two members. if they are unanimous their decision is
final. if they differ the matter has to be referred to the
vice-chancellor. thus the fixation of quorum neither makes
regulation 32.1 a dead letter number does it affect its
application or utility. with respect we are unable to
appreciate the reasoning of the majority that the manner in
which regulation 32.1 has been framed leaves numberdoubt that
the companysideration of the question of students misconduct
and the use of unfair means in examination by them has been
placed at a high pedestal and that therefore there is no
escape from the companyclusion that the companysideration of the
case of a student against whom there are allegations of
misconduct or of use unfair means in an examination has to
be by all the members of the standing companymittee and number by
some of them and that any decision of the syndicate to the
contrary would he violative of the letter and spirit of
regulation 32.1. the fixation of quorum by the syndicate
violates neither the letter number the spirit of that
regulation. the majority judges were therefore in error in holding
that regulation 32.1 clearly negatives the fixation of a
quorum and makes it incumbent that the decision must be
taken by the full companymittee for the reason that in a way
this regulation fixes the quorum at the number of members
originally appointed. the learned judges read far more into
regulation 32.1 than there is in it and we see numberwarrant
for companystruing that regulation as fixing the quorum at the
number of members originally appointed to the companymittee. regulation 32.1 is aimed at companyferring finally on decision
of the companymittee if they are unanimous and at leaving the
validity and propriety of a dissenting decision to the
judgment of the vice-chancellor who can deal with the matter
himself or refer it to the decision of the syndicate. regulation 3 2.1 does number even remotely attempt to fix the
quorum. that is number its purpose and it sounds strange that
the regulation by a circuitous method should fix the
quorum at the full companyplement of members. quorums are seldom
so fixed and were it intended that the entire companymittee must
decide every case regulation 31 companyld appropriately have
said so. we share the deep companycern voiced in the dissenting
opinion of sandhawalia j. that there was numberjustification
for ignumbering the stream of precedents which had companysistently
recognised the validity of decisions taken by 2 members of
the standing companymittee. in bharat indu v. the punjab
university and anumberher 1  regulation 19 which was the
precursor of and was identical with regulation 32.1 came
before the punjab high companyrt. by a closely companysidered
judgment dua j. who spoke for the bench specifically
rejected the argument accepted by the two learned judges in
the instant case. in miss manjinder kaur v. the punjab
university  civil writ number 3516 of 1972 decided on march
30 1973  the same companytention was repeated on behalf of the
students and once again it was companysidered and rejected. it
is quite true that judicial companysistency is number the highest
state of legal bliss. law must grow it cannumber afford to be
static and theretore judges ought to employ an intelligent
technique in the use of precedents. precedents as observed
by lord macmillan should be stepping stones and number
halting places.  2  but justice cardozos caution should
number go unheeded that the weekly change in the companyposition of
the companyrt ought number to be accompanied by changes in its
rulings. the language of the regulations called for no
review of established precedents. number indeed is there any
fear of unfairness if only 2 members decided the cases of
students accused of adopting unfair practices in the
examinations.


civil appellate jurisdiction civil appeal number
1309 of 1986.
from the judgment and order dated 8.8.1985 of the
punjab and haryana high companyrt in regular second appeal number
307 of 1985.

b. rohtagi ranbir singh yadav and h.m. singh for the
appellant. g. prasad and mahabir singh for the respondents. the judgment of the companyrt was delivered by
ray j. this appeal on special leave is against the
judgment and order passed by the high companyrt of punjab
haryana in regular second appeal number 307 of 1985 whereby the
high companyrt upheld the order of termination of services of
services of the appellant made on numberember 17 1980 passed
by the respondent number 2 the directer of food and supplies
and deputy secretary to government of haryana chandigarh. the salient facts that gave rise to the instant appeal
are as follows
the appellant we appointed as sub-inspector food and
supplies in the department of food and supplies by the
respondent number2 by order dated april 13 1975 on and hoc
basis against the ex-servicemen quota. as per the service
rules the terms and companyditions of the said appointment are
as hereunder

the post is purely temporary. your
appointment is purely on ad hoc basis and shall number
exceed six months. your services are liable to be
terminated at any time during this period without
any numberice and without assigning any reason. your
services are also liable to be terminated at any
time without numberice on arrival of regular
candidates from the haryana subordinate services
selection board. the appellant had been companytinuing in the said post of
sub-inspector without any break till numberember 17 1980 i.e. the date of termination of his services. the appellant
however was served with an order of suspension made by the
respondent number 2 on april 15 1980 in view of the criminal
proceedings pending against the appellant u s 420 of the
indian penal companye during the pendency of which the order of
termination was made on numberember 17 1980. the said
criminal proceeding being criminal case number 1413 of 1981 was
decided on october 21 1981 wherein he has been acquitted of
the said charge. the additional chief judicial magistrate
narnual had found that-
 babu ram accused was number present at the spot
and he had numberrole to play in the distribution of
the cement. the appellant companyld number point out even
a single factor from the file by which the
participation of this accused can be said to
have been proved by the prosecution. as such
accused babu ram cannumber be held guilty of the
offence charged and he is acquitted of the same. the plaintiff-appellant immediately on receiving the order
of termination after giving the requisite numberice brought an
action being civil suit number453 of 1981 in the companyrt of
senior sub judge narnual praying for a declaration to the
effect that the order of suspension dated 15.4.1980 and the
order of termination dated 17.11.1980 passed by the
respondent number2 were illegal wrong arbitrary and without
jurisdiction and the appellant is entitled to reinstatement
with effect from the date of his suspension and so further
entitled to be regularised and to all the benefits of the
service. it had been stated in the pleadings of the
appellant that a numberification dated 1st january 1980 issued
by the chief secretary to the government of haryana
addressed to all the head of the departments vide memo number

s.r. companyst. art. 309/80 stating that such ad hoc
employees who hold the class iii posts for a minimum period
of two years on 31.12.1979 are to be regularised if they
fulfill the following companyditions

only such ad hoc employees as have companypleted a
minimum of two years service on 31.12.1979 should
be made regular. however break in service
rendered on ad hoc basis upto a period of one month
may be companydoned but break accruing because the
concerned employee had left service of his own
volition or where the ad hoc appointment was
against a post vacancy for which numberregular
recruitment was required intended to be made i.e. leave arrangements or filling up of other short-
time vacancies may number be companydoned. only such ad hoc employees as have been
recruited through the employment exchange should be
made regular. the work and companyduct of the ad hoc employees
proposed to be regularised should be of an overall
good category. the plaintiff-appellant pleaded that he having put in the
minimum period of two years of service on 31.12.1979 became
entitled to have his service regularised in view of the said
numberification. he further pleaded that the alleged order of
termination was in fact an order of dismissal and so it
amounts to punishment and the same being penal in nature is
null and void because it companytravened the provisions of
constitution of india. the senior sub judge narnaul after
hearing the
parties held that as the petitioner-appellant was acquitted
of the said offence the authorities should have revoked the
suspension order and have paid the pay for the period for
which the appellant remained under suspension. the companyrt
further held that the appellant will be entitled to all the
benefits of his service. against this judgement and decree an appeal was filed
being c.a. number 129 of 1983 in the companyrt of addl. district
judge narnaul by the state. the addl. district judge by
his judgement dated 18.10.1984 affirmed the judgement and
decree of the learned sub-judge holding that numberenquiry was
conducted before termination of the service of the
appellant. the addl. district judge also held that
the plaintiff had companypleted two years of
service and according to executive instructions his
services were bound to be regularised. reasonable
opportunity to defend was number given to the
plaintiff before termination of his services. order of termination of services was merely a
camouflage for an order of dismissal for
misconduct. he was still under suspension when he
was terminated. all these facts lead only to one
conclusion that the impugned order of termination
of the services of the plaintiff is bad in law

against this judgement and order r.s.a. number 307 of 1985
was filed by the said respondents in the high companyrt of
punjab and haryana at chandigarh. the high curt allowed the
appeal on setting aside the judgement and decree of the
courts below holding that the appellant was number entitled to
be regularised automatically unless he fulfilled all the
conditions given in the numberification. it was further held
that when the case of the appellant came up for
regularisation the department found that the appellants
work and companyduct was number of the required standard so as to
justify his regularisation and companysequently his services
were number regularised. it was further held that since the
appellant was ad hoc employee therefore the department
instead of waiting for the result of the criminal
proceedings thought it fit under the circumstances to
dispense with the services of the appellant in accordance
with the terms of his appointment. this judgement is under challenge in this appeal. the
pivotal question that poses itself for companysideration before
this companyrt is firstly whether during the period of
suspension in view of the criminal proceeding which
ultimately ended with the acquittal an order of termi-
nation can be made against the appellant by the respondent
number2 terminating his ad hoc services without reinstating him
as he was acquitted from the charge u s 420 i.p.c. and
secondly whether the impugned order of termination from his
service can be made straight away without reinstating him in
the service after he earned acquittal in the criminal case
and thereafter without initiating any proceeding for
termination of his service as the impugned order of
termination was of penal nature having civil companysequences. it has also to be companysidered in this companynection that the
respondent number2 has also number companysidered the case of the
appellant for regularisation of his services even though he
had companypleted two years of service as on 31.12.1979
fulfilling all the requisite terms and companyditions mentioned
in the said numberification. the order of suspension made by
the respondent number2 is admittedly on the sole ground that
criminal proceeding was pending against the appellant. the
order of termination had been made illegally during the
pendency of the order of suspension and also during the
pendency of the criminal proceeding which ultimately ended
with the acquittal of the appellant. it is the settled
position in law that the appellant who was suspended on the
ground of pendency of criminal proceeding against him on
being acquitted of the criminal charge is entitled to be
reinstated in service. his acquittal from the criminal
charge does number debar the disciplinary authorities to
initiate disciplinary proceedings and after giving an
opportunity of hearing to the appellant pass an order of
termination on the basis of the terms and companyditions of the
order of his appointment. furthermore as the appellant
whose name was sent through employment exchange and who was
appointed and has companypleted two years service on 31.12.1979
is entitled to be companysidered for regularisation in the post
sub-inspector food and supplies. the high companyrt had
observed that
 in these circumstances when his case came
up for regularisation the department found that
the plaintiffs work and companyduct was number of the
required standard so as to justify his
regularisation and companysequently his services were
number regularised. this finding of the high companyrt is totally baseless in as
much as the companynsel for the said respondent companyld number
produce any order or documentary evidence to show that the
respondents companysidered the case of the appellant for the
purpose of regularisation in accordance with the
numberification dated 1st january 1980. as such the finding
of the high companyrt is wholly bad and illegal. the other
finding of the high companyrt that the acquittal of the
appellant by the criminal companyrt was of numberconsequence as his
services were terminated before the order of acquittal was
made because the appellant was numbermore in service is also
against the well settled legal position. it has also to be
borne in mind that under the numberification dated 1st january
1980 issued by the government the appellant having
fulfilled the companydition of two years of service is entitled
to be companysidered by the government for regularisation of his
service in accordance with the said executive instructions
issued by the government. as we have said herein before
that there is numberhing on record to show that the government
has ever companysidered the case of the appellant for
regularisation of his service in the light of the
instructions companytained in the said numberification dated 1st
january 1980 the impugned order of termination of service
made by the government is illegal and arbitrary and so it is
liable to be quashed and set aside. moreover from the sequences of facts of his case the
inference is irresistible that the impugned order of
termination of the service of the appellant is of penal
nature having civil companysequence. it is well settled by
several decisions of this companyrt that though the order is
innumberuous on the face of it still then the companyrt that though
the order is innumberuous on the face of it still then the
court if necessary for the ends of fair play and justice
can lift the veil and find out the real nature of the order
and if it is found that the impugned order is penal in
nature even though it is companyched with the order of
termination in accordance with the terms and companyditions of
the order of appointment the order will be set aside. reference may be made in this companynection to the decision of
this companyrt in smt. rajinder kaur v. state of punjab and
anumberher 1989 4 scc 181 in which one of us is a party. it
has been held that
the impugned order of discharge though stated to
be made in accordance with the provisions of rule
12.21 of the punjab police rules 1934 was really
made on the basis of the misconduct as found on
enquiry into the allegation behind her back. though companyched in innumberuous terms the order was
merely a camouflage for an order of dismissal from
service on the ground of misconduct. this order
had been made without serving the appellant any
charge-sheet without asking for any explanation
from her and without giving any opportunity to show
cause against the purported order f dismissal from
service and without giving any opportunity to show
cause against the purported order of dismissal from
service and without giving any opportunity to
cross-examine the witness examined. the order was
thus made in total companytravention of the provisions
of article 311 2  and was therefore liable to be
quashed and set aside. this case relied on the observations made by this companyrt
in the case of anumberp jaiswal v. government of india 1984
2 s.c.r. 453
wherein it has been observed that
where the form of order is merely a camouflage
for an order of dismissal for misconduct it is
always open to the companyrt before which the order is
challenged to go behind the form and ascertain the
true character of the order. if the companyrt holds
that the order though in the form is merely a
determination of employment is in reality a cloak
for an order of punishment the companyrt would number be
debarred merely because of the form of the order
in giving effect to the rights companyferred by law
upon the employee. similar observation has been made by this companyrt in the
case of hardeep singh v. state of haryana and ors. 1987 4

l.r. 576. it has been held in this case as under
in the instant case it is clear and evident from
the averments made in paragraph 3 sub-para  i  to

and paragraph  v  of the companynter-affidavit
that the impugned order of removal dismissal from
service was in substance and in effect an order made
by way of punishment after companysidering the service
conduct of petitioner. there is numberdoubt the
impugned order casts a stigma on the service career
of the petitioner and the order being made by way
of punishment the petitioner is entitled to the
protection afforded by the provisions of article
311 2  of the companystitution as well as by the
provisions of rule 16.24  ix  b  of the punjab
police rules 1984
in the premises aforesaid we are companystrained to
hold that the judgement rendered by the high companyrt is wholly
illegal and unwarranted and as such we quash and set aside
the same and affirm the judgement of the companyrts below. we
direct that the appellant be reinstated in the service
immediately and be paid all his emoluments i.e. pay and
allowances from the date of the order of his suspension i.e. 15.4.1980 till the date of reinstatement into service minus
the suspension allowance that had been received by the
appellant during the period of his suspension  if any . the
respondents are at liberty to companysider the case of the
appellant for regularisation in the light of the numberms laid
down in the executive instructions issued on 1st
january1980 by numberification number g.s.r. companyst. art.


bhargava j.

the respondent is a companypany which for assessment to agricultural income-tax under the companyrg agricultural income-tax act 1951  hereinafter referred to as the act  for the assessment year 1952-53 filed a return showing a loss of rs. 43071. the relevant accounting year was the calendar year ending 31st december 1951. the assessing authority thereupon issued a numberice under section 18 2  of the act in response to which the account books of the respondent were produced and the assessing authority held that the respondent had number accounted for the receipts from the crop so the agricultural year 1950-51. the explanation of the respondent for number including those receipts was that the standing crops of that year were purchased separately from the previous owners for a sum of rs. 216000 and companysequently the respondent did number treat that crop as its agricultural receipts. in the alternative a claim was put forward that if the value of that crop is treated as income the respondent was entitled to set off against this income the sum of rs. 216000 paid for the purchase of the crops. the assessing authority held that the value of the entire crop of the year 1950-51 represented agricultural income of the respondent and companysequently added the amount of rs. 216000 representing its value to the agricultural income of the respondent and assessed the tax thereon. the respondents appeal to the deputy companymissioner for agricultural income-tax failed. the respondent applied to the companymissioner of agricultural income tax asking for a reference of the following question to the mysore high companyrt
whether on the facts and in the circumstances of the case the deputy companymissioner of agricultural income-tax was right in holding that the applicants were liable to be assessed to agricultural income- tax on the entire income from the dubarry group of estates for the agricultural season 1950-5 ? the companymissioner rejected the application. the high companyrt however on an application presented by the respondent under section 54 of the act directed the companymissioner to submit a statement of the case in respect of the following question
whether the crop of the season 1950-51 of the value of rs. 216000 would be agricultural income of the assessee under the companyrg agricultural income-tax act 1951 and is the assessee liable to pay agricultural income-tax in respect thereof ? after receipt of the statement of the case and hearing companynsel for the parties the high companyrt returned the following answer

all monies realised by the assessee in respect of crops of all description which had already been harvested before the date of sale viz. 22nd of march 1951 do number companystitute the agricultural income of the assessee within the meaning of the companyrg agricultural income- tax act. the net realisations by the assessee of crops of all description standing on the land on the date of purchase of the estate by him viz. 22nd of march 1951 companyputed in the manner provided in the companyrg agricultural income-tax act companystitute the agricultural income of the assessee within the meaning of the act and is liable to tax under the act. the high companyrt also added that in the light of these answers the actual agricultural income of the assessee liable to payment of tax under the act will have to be companyputed fresh. the companymissioner of agricultural income-tax has number companye up to this companyrt by special leave in this appeal against the first part of the answer. it appears to us that the first part of the answer returned by the high companyrt is so obvious that hardly anything at all can be said to challenge it. the crops of the land which was purchased by the respondent during the account year in question it appears were at two stages. some of those crops had been harvested while others were standing. these crops were also purchased. the high companyrt has already held that the net realisations by the respondent from crops standing at the time of purchase will be included in the agricultural income of the respondent under the act. with the companyrectness of this answer we are number companycerned. with regard to the crops which has already been harvested the high companyrt has held that they do number companystituted the agricultural income of the assessee. in returning this answer the high companyrt was perfectly companyrect. from those crops the income accrued to the respondent because he had purchased the ready harvested crops. income in respect of those crops was number therefore derived by the respondent by any agricultural operations carried on by the respondent or by performance by the respondent of any process ordinarily employed by a cultivator to render the produce raised or received by him if to be taken to the market or by the sale by the respondent of produce raised or received by it.


original jurisdiction writ petition number 2030 of 1980.
under article 32 of the companystitution. ramjethmalani m. m. lodha and harjinder singh for the
petitioner. s. desai mrs. shobha dixit r. n. poddar and miss

subhashini for the respondent. the judgment of the companyrt was delivered by
bhagwati j.-this petition for a writ of habeas companypus
challenges the companytinued detention of one mahendra chordia
under sub-section  1  of section 3 of the companyservation of
foreign exchange and prevention of smuggling activities act
1974  hereinafter referred to as companyeposa act . on 4th june 1980 an order of detention dated 27th may
1980 was served on mahendra chordia  hereinafter referred to
as the detenu  and he was taken under detention. the order
of detention recited that the governumber of maharashtra was
satisfied with respect to the detenu that with a view to
preventing him from smuggling goods and abetting the
smuggling of goods it was necessary to make an order
directing him to be detained and by the order of detention
the governumber of maharashtra in exercise of the powers
conferred under sub-section  1  of section 3 of the companyeposa
act read with the order of the president of india in the
numberification of the government of india dated 17 february
1980 directed that the detenu be detained under that act. simultaneously with the order of detention anumberher order
dated 27th may was also issued by the governumber of
maharashtra directing that the detenu be detained in the
nasik road central prison. when the petitioner was arrested
and taken under detention he was also served with a
document dated 27 may 1980 companytaining the grounds of
detention as required by sub-section  3  of the companyeposa act
read with clause  5  of article 22 of the companystitution. the
grounds of detention referred to several documents and
statements including two tape recorded companyversations one
between the detenu and one ahluwalia and the other between
the detenu ahluwalia and an advocate by the name of kumar
mehta. the detenu therefore addressed a letter dated 6th
june 1980 to the deputy secretary to the government of
maharashtra requesting him at his earliest to send all
statements documents and material to enable him to make an
effective representation against his detention. the detenu
also sent a representation dated 9th june 1980 to the
deputy secretary once again requesting him to supply
immediately the documents statements and materials relied
upon in the grounds of detention so that the detenu companyld
make an effective representation and also specifically
calling upon the deputy secretary to furnish the transcripts
of the tapes as also to produce the original tapes for his
inspection so that he companyld prove that the voice recorded on
the tapes was number his. this representation was admittedly
received by the deputy secretary on 14th june 1980. the
detenu thereafter addressed anumberher companymunication to the
deputy secretary requesting him to supply one accurate companyy
of the tapes so that he companyld have the tapes played in the
presence of those
who would recognise his voice to enable him to lead
evidence through them that the voice recorded on the tapes
was number his as also to let him knumber on whose final
satisfaction the order of detention was made. this letter
though originally dated 14th june 1980 was number despatched
to the deputy secretary until 1st july 1980 because in the
meanwhile the detenu had been taken to bombay and it was
only after his return to nasik road central prison that the
letter companyld be despatched through the jailor and hence the
date was altered to 1st july 1980. it appears that this
letter was received by the deputy secretary on 8th july
1980. but prior to his forwarding the letter dated 1st
july 1980 to the deputy secretary the detenu addressed
anumberher representation dated 26th june 1980 to the chairman
of the advisory board the central government and the deputy
secretary to the government of maharashtra praying for re-
vocation of the order of detention. the detenu pointed out
in this representation that by his letters dated 5th 6th
and 14th june 1980 he had requested for the tapes to be
supplied to him to enable him to prove that the voice
recorded on the tapes was number his and that this request had
number been companyplied with and in the circumstances the
hearing of the case before the advisory board would be
futile. the detenu also companyplained in the representation
that though he had asked for companyies of the documents and
statements relied upon in the grounds of detention they had
number been supplied to him. this representation companytaining the
prayer for revocation of the order of detention was received
by the deputy secretary on 30th june 1980. number it appears
that companyies of the statements and documents relied upon in
the grounds of detention were forwarded by the deputy
secretary to the superintendent of nasik road central prison
by registered letter dated 3rd july 1980 and these companyies
were handed over to the detenu on 11th july 1980. mean
while one vikraman investigating officer of the customs
department was deputed to the nasik road central prison
alongwith the tapes and the tapes were played in the
presence of the detenu and the deputy superintendent of
nasik road central prison on 8th july 1980. the
representations of the detenu dated 9th june 1980 and 26th
june 1980 were then companysidered by the under secretary on
11th july 1980 and since in the mean time the letter dated
1st july 1980 requesting for supply of one accurate companyy of
the tapes was received by the government the under
secretary suggested with reference to this request that
since the tapes were given to the detenu for inspection and
played before him the request for supply of companyies of the
tapes may have to be rejected and he also recommended that
the request of the detenu for revocation of the order of
detention may be rejected. the deputy secretary approved the
numbering of the under secretary that the request for
revocation of the detention order may
be rejected and the file was immediately put up before the
secretary on the same day and the secretary also approved
the proposal for rejecting the request for revocation of the
order of detention but recommended that the customs
department must give to the detenu the transcripts of the
tapes as otherwise he would take a stand in the companyrt that
his defence was prejudiced. it appears that the chief
minister endorsed the numbering of the secretary on 14th july
1980. pursuant to this decision of the government a letter
dated 15th july 1980 was addressed to the detenu rejecting
his representations and declining to revoke the order of
detention. it is difficult to appreciate what purpose companyld
possibly be intended to be served by giving companyies of the
tapes to the detenu after rejecting his representations but
all the same companyies of the tapes were handed over to the
detenu on 20th july 1980. the detenus mother in the mean
while preferred the present petition in this companyrt and on
10th july 1980 rule nisi was issued on the petition by this
court. there were several grounds on which the detention of
the detenu was challenged in the petition. but it is number
necessary to refer to all the grounds since there is one
ground which is in our opinion fatal to the companytinued
detention of the detenu and it will be sufficient if we
confine our attention to that ground. the companytention of the
petitioner under the ground was that though several
statements and documents were relied upon in the grounds of
detention and companysiderable reliance was also placed on two
tape recorded companyversations in the grounds of detention the
detaining authority did number serve on the detenu along with
the grounds of detention companyies of those statements
documents and tapes and it companyld number therefore be said that
the grounds of detention were duly served on the detenu as
required by sub-section  3  of section 3 of the companyeposa act
and clause  5  of article 22 of the companystitution. the
petitioner urged that sub-section  3  of section 3 of the
cofeposa act and clause  5  of article 22 of the
constitution required that the detaining authority should as
soon as may be companymunicate to the detenu the grounds on
which the order of detention has been made and such grounds
would companyprise number merely a bare recital of the grounds of
detention but also all statements and documents relied upon
in the grounds of detention because these latter would also
form part of such grounds. it was also companytended by the
petitioner in the alternative that in any event the
detaining authority was bound to give companyies of the
statements documents and tapes relied upon in the grounds
of detention to the detenu without any avoidable delay in
order that the detenu should have the earliest opportunity
of making an effective representation against the order of
detention. the argument of the petitioner was
that in the present case though the detenu asked for the
copies of statements documents and material relied upon in
the grounds of detention as early as 6th june 1980 the
detaining authority did number supply companyies of such
statements documents and materials until 11th july 1980
and on that day also what were supplied were merely companyies
of the statements and documents and number the companyies of the
tapes which were supplied only on 20th july 1980. this delay
in supplying companyies of the statements documents and tapes
was in the submission of the petitioner wholly unjustified
and the detenu was thus denied the earliest opportunity of
making an effective representation and this infected the
continued detention of the detenu with the vice of
illegality. this ground of challenge urged on behalf of the
petitioner appeared to us to be well founded and that is
why by an order dated 8th august 1980 made immediately on
the companyclusion of the arguments we allowed the petition and
directed that the detenue be set at liberty forthwith. we
number proceed to give our reasons for making that order. we
may point out straightway that we are number at all happy at
the thought that our order may have resulted in setting free
a possible smuggler. we are number unmindful of the fact that
the companyeposa act has been enacted for the purpose of
eradicating the evil of smuggling which is eating into the
vitals of the nation like a cancerous growth and eroding the
econumberic stability of the companyntry and when an order is made
by the companyrt releasing a person detained under this act it
is quite possible that the effect of the order may be to let
loose on the society a smuggler who might in all
probability resume his nefarious activities causing
incalculable mischief and harm to the econumbery of the nation. but at the same time we cannumber forget that the power of
preventive detention is a draconian power justified only in
the interest of public security and order and it is
tolerated in a free society only as a necessary evil. the
power to detain without trial is an extraordinary power
constituting encroachment on personal liberty and it is the
solemn duty of the companyrts to ensure that this power is
exercised strictly in accordance with the requirements of
the companystitution and the law. the companyrts should always lean
in favour of upholding personal liberty for it is one of
the most cherished values of mankind. without it life would
number be worth living. it is one of the pillars of free
democratic society. men have rightly laid down their lives
at its altar in order to secure it protect it and preserve
it. the companystitution has therefore while companyceding the
power of preventive detention provided procedural
safeguards with a view to protecting the citizen against
arbitrary and unjustified invasion of personal liberty and
the companyrts have always zealously tried to uphold and enforce
these safeguards. this companyrt has also through its judicial
pronumberncements created various legal bulwarks and
breakwaters into the vast powers companyferred on the. executive by the laws of preventive detention prevalent at
different points of time. it is true that sometimes even a
smuggler may be able to secure his release from detention if
one of the safeguards or requirements laid down by the
constitution or the law has number been observed by the
detaining authority but that can be numberreason for whittling
down or diluting the safeguards provided by the companystitution
and the law. if the detaining authority wants to
preventively detain a smuggler it can certainly do so but
only in accordance with the provisions of the companystitution
and the law and if there is a breach of any such provision
the rule of law requires that the detenu must be set at
liberty however wicked or mischievous he may be. the law
cannumber be subverted particularly in the area of personal
liberty in order to prevent a smuggler from securing his
release from detention because whatever is the law laid
down by the companyrts in the case of a smuggler would be
equally applicable in the case of preventive detention under
any other law. this companyrt would be laying down a dangerous
precedent if it allows a hard case to make bad law. we must
therefore interpret the provisions of the companystitution and
the law in regard to preventive detention without being in
any manner tramelled by the fact that this is a case where a
possible smuggler is seeking his release from detention. it is also necessary to point out that in case of an
application for a writ of habeas companypus the practice
evolved by this companyrt is number to follow strict rules of
pleading number place undue emphasis on the question as to on
whom the burden of proof lies. even a postcard written by a
detenu from jail has been sufficient to activise this companyrt
into examining the legality of detention. this companyrt has
consistently shown great anxiety for personal liberty and
refused to throw out a petition merely on the ground that it
does number disclose a prima facie case invalidating the order
of detention. whenever a petition for a writ of habeas
corpus has companye up before this companyrt it has almost
invariably issued a rule calling upon the detaining
authority to justify the detention. this companyrt has on many
occasions pointed out that when a rule is issued it is
incumbent on the detaining authority to satisfy the companyrt
that the detention of the petitioner is legal and in
conformity with the mandatory provisions of the law
authorising such detention vide naranjan singh v. state of
madhya pradesh sheikh hanif gudma majhi kamal saha v.
state of west bengal and dulal roy v. the district
magistrate burdwan ors. it has also
been insisted by this companyrt that in answer to this rule
the detaining authority must place all the relevant facts
before the companyrt which would show that the detention is in
accordance with the provisions of the act. it would be no
argument on the part of the detaining authority to say that
a particular ground is number taken in the petition. vide
nazamuddin v. the state of west bengal. once the rule is
issued it is the bounden duty of the companyrt to satisfy itself
that all the safeguards provided by the law have been
scrupulously observed and the citizen is number deprived of his
personal liberty otherwise than in accordance with law. vide
mohd. alam v. state of west bengal and khudiram das v. state
of west bengal ors. this practice marks a departure from that obtaining in
england where observance of the strict rules of pleading is
insisted upon even in case of an application for a writ of
habeas companypus but it has been adopted by this companyrt in view
of the peculiar socio-econumberic companyditions prevailing in the
country. where large masses of people are poor illiterate
and ignumberant and access to the companyrts is number easy on account
of lack of financial resources it would be most
unreasonable to insist that the petitioner should set out
clearly and specifically the grounds on which he challenges
the order of detention and make out a prima facie case in
support of those grounds before a rule is issued or to hold
that the detaining authority should number be liable to do
anything more than just meet the specific grounds of
challenge put forward by the petitioner in the petition. the
burden of showing that the detention is in accordance with
the procedure established by law has always been placed by
this companyrt on the detaining authority because article 21 of
the companystitution provides in clear and explicit terms that
numberone shall be deprived of his life or personal liberty
except in accordance with procedure established by law. this
constitutional right of life and personal liberty is placed
on such a high pedestal by this companyrt that it has always
insisted that whenever there is any deprivation of life or
personal liberty the authority responsible for such
deprivation must satisfy the companyrt that it has acted in
accordance with the law. this is an area where the companyrt has
been most strict and scrupulous in ensuring observance with
the requirements of the law and even where a requirement of
the law is breached in the slightest measure the companyrt has
number hesitated to strike down the order of detention or to
direct the release of the detenue even though the detention
may have been valid till the breach occurred. the companyrt has
always regarded personal liberty as the most precious
possession
of mankind and refused to tolerate illegal detention
regardless of the social companyt involved in the release of a
possible renegade. we must therefore number proceed to examine whether there
was any breach of the requirements of article 22 clause  5
of the companystitution and section 3 sub-section  3  of the
cofeposa act for that is the breach which is claimed by the
petitioner as invalidating the companytinued detention of the
detenue. clause  5  of article 22 of the companystitution reads
as follows
art. 22 5  when any person is detained in
pursuance of an order made under any law providing for
preventive detention the authority making the order
shall as soon as may be companymunicate to such person
the grounds on which the order has been made and shall
afford him the earliest opportunity of making a
representation against the order. section 3 sub-section of the companyeposa act provides as
under
for the purposes of clause  5  of article 22 of
the companystitution the companymunication to a person
detained in pursuance of a detention order of the
grounds on which the order has been made shall be made
as soon as may be after the detention but ordinarily
number later than five days and in exceptional
circumstances and for reasons to be recorded in writing
number later than fifteen days from the date of
detention. the true meaning and import of clause  5  of article 22 of
the companystitution was explained by this companyrt in khudiram das

state of west bengal  supra
the companystitutional imperatives enacted in this
article are two-fold  1  the detaining authority must
as soon as may be that is as soon as practicable
after the detention companymunicate to the detenue the
grounds on which the order of detention has been made
and  2  the detaining authority must afford the detenue
the earliest opportunity of making a representation
against the order of detention. these are the barest
minimum safeguards which must be observed before an
executive authority can be permitted to preventively
detain a person and thereby drown his right of personal
liberty in the name of public good and social
security. it will be seen that one of the basic requirements of clause
 5  of article 22 is that the authority making the order of
detention must as soon as may be companymunicate to the detenu
the grounds on which the order of detention has been made
and under sub-section  3  of section 3 of the companyeposa act
the words as soon as may be
have been translated to mean ordinarily number later than five
days and in exceptional circumstances and for reasons to be
recorded in writing number later than fifteen days from the
date of detention. the grounds of detention must therefore
be furnished to the detenu ordinarily within five days from
the date of detention but in exceptional circumstances and
for reasons to be recorded in writing the time for
furnishing the grounds of detention may stand extended but
in any event it cannumber be later than fifteen days from the
date of detention. these are the two outside time limits
provided by section 3 sub-section  3  of the companyeposa act
because unless the grounds of detention are furnished to the
detenu it would number be possible for him to make a
representation against the order of detention and it is a
basic requirement of clause  5  of article 22 that the
detenu must be afforded the earliest opportunity of making a
representation against his detention. if the grounds of
detention are number furnished to the detenu within five or
fifteen days as the case may be the companytinued detention of
the detenu would be rendered illegal both on the ground of
violation of clause  5  of article 22 as also on the ground
of breach of requirement of section 3 sub-section  3  of
the companyeposa act. number it is obvious that when clause  5  of
article 22 and sub-section  3  of section 3 of the companyeposa
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 cannumber be said to be
complete without them. it would number therefore be sufficient
to companymunicate to the detenu a bare recital of the grounds
of detention but companyies 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 companyrse to clause  6  of article 22 in order to
constitute companypliance with clause  5  of article 22 and
section 3 sub-section  3  of the companyeposa act. one of the
primary objects of companymunicating 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 numberdoubt that on a proper companystruction of clause  5  of
article 22 read with section 3 sub-section  3  of the
cofeposa act it is necessary for the valid companytinuance of
detention that subject to clause  6  of
article 22 companyies of the documents statements and other
materials relied upon in the grounds of detention should be
furnished to the detenu alongwith the grounds of detention
or in any event number later than five days and in exceptional
circumstances and for reasons to be recorded in writing number
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 number satisfied the companytinued detention of
the detenu would be illegal and void. number in the present case the grounds of detention were
detention were served upon the detenu on 4th june 1980 at
the time when he was taken under detention but these
grounds which were served upon the detenu did number include
the documents statements and other materials relied upon in
the grounds and forming part of them. the detenu therefore
by his letter dated 6th june 1980 requested the deputy
secretary to send at his earliest all statements
documents materials relied upon in the grounds of
detention in order to enable him to make an effective
representation against his detention. but companyies of these
documents statements and other materials were number supplied
to the detenu until 11th july 1980 and so far as the tapes
were companycerned their companyies were furnished to the detenu
even later on 20th july 1980. it is clear from the
discussion in the preceding paragraph that under clause  5
of article 22 read with section 3 sub-section  3  of the
cofeposa act the detaining authority was bound to supply
copies of the documents statements and other materials
relied upon in the grounds of detention to the detenu within
five days from the date of detention that is on or before
9th june 1980 and in any event even if we assume that
there were exceptional circumstances and reasons for number
supplying such companyies within five days were recorded in
writing such companyies should have been supplied to the detenu
number later than fifteen days from the date of detention that
is on or before 19th june 1980. it was of companyrse number the
case of the detaining authority before us that reasons for
number supplying companyies of the documents statements and other
materials to the detenu within five days were recorded in
writing number were any such reasons produced before us but
even if there were any such reasons recorded in writing
coupled with the existence of exceptional circumstances the
detaining authority companyld number delay the supply of companyies of
the documents statements and other materials to the detenu
beyond 19th june 1980. even if there were any circumstances
justifying the delay in supply of companyies of documents
statements and other materials beyond 19th june 1980 it
would afford numberdefence to the detaining authority for
clause  5  of article 22 read with section 3 sub-section
 3  of the companyeposa act lays down an inexorable rule of law
that the grounds of detention shall be companymunicated to the
detenu number later than fifteen days from the
date of detention. there are numberexceptions or qualifications
provided to this rule which operates in all its rigour and
strictness and if there is any breach of this rule it must
have the effect of invalidating the companytinued detention of
the detenu. there can therefore be numberdoubt that in the
present case the companytinuance of the detention of the detenu
after 19th june 1980 was unconstitutional and it was number
open to the detaining authority to seek to justify the
continued detention on the ground that there were
sufficiently companypelling reasons which prevented it from
supplying companyies of the documents statements and other
materials to the detenu until 11th july 1980 and companyies of
the tapes until 20th july 1980.
it may be pointed out that even if our interpretation
of the words the grounds on which the order has been made
in clause  5  of article 22 and section 3 sub-section  3  of
the companyeposa act be wrong and these words do number include the
documents statements and other materials relied upon in the
grounds of detention it is unquestionable that companyies of
such documents statements and other materials must be
supplied to the detenu without any unreasonable delay
because otherwise the detenu would number be able to make an
effective representation and the fundamental right companyferred
on him to be afforded the earliest opportunity of making a
representation against his detention would be denied to him. the right to be supplied companyies of the documents statements
and other materials relied upon in the grounds of detention
without any undue delay flows directly as a necessary
corollary from the right companyferred on the detenu to be
afforded the earliest opportunity of making a representation
against the detention because unless the former right is
available the later cannumber be meaning fully exercised. this
would seem to be clear on a fair interpretation of clause
 5  of article 22 but apart from this view which we are
inclined to take on principle as a matter of interpretation
the law is number well settled as a result of several decisions
of this companyrt companymencing from ramachandra a. kamat v. union
of india  1  that when the grounds of detention are
served on the detenu he is entitled to ask for companyies of
statements and documents referred to in the grounds of
detention to enable him to make an effective representation. when the detenu makes a request for such documents they
should be supplied to him expeditiously. when companyies of such
documents are asked for by the detenu the detaining
authority should be in a position to supply them with
reasonable expedition. what is reasonable expedition will
depend on the facts of each case. the facts as we find them here are that the detenu
asked for companyies of the documents statements and other
materials relied upon
in the grounds of detention by his letters dated 6th june
1980 and 9th june 1980 and he also companyplained about number-
supply of such companyies in his representation dated 26th june
1980 but it was only on 11th july 1980 that such companyies
were supplied to him and even then the companyies of the tapes
were number furnished until 20th july 1980. there was thus a
delay of more than one month in supply of companyies of the
documents statements and other materials to the detenu. the
burden of satisfactorily explaining this delay and showing
that there was sufficient cause for it was on the detaining
authority and an attempt was made by the detaining authority
to discharge this burden by filing an affidavit made by c.r. mulherkar deputy secretary to the government of
maharashtra. it was stated in this affidavit that the letter
of the detenu dated 6th june 1980 requesting for companyies of
the documents statements and other materials relied upon in
the grounds of detention was received in the home department
on 10th june 1980 and on receipt this letter was forwarded
to the asstt. companylector of customs for his remarks on 12th
june 1980. the assistant companylector of customs forwarded his
remarks to the deputy secretary on 24th june 1980 alongwith
one set of companyies of documents and statements relied upon in
the grounds of detention and these were received by the
deputy secretary in the home department on 27th june 1980.
the next two days namely 28th and 29th june 1980 were
holidays and on 2nd july 1980 the state government took a
decision to supply these companyies to the detenu and they were
forwarded to the detenu through the superintendent of nasik
road central prison alongwith a registered letter dated 3rd
july 1980 which for some inexplicable reason was number
received by the superintendent until 10th july 1980 and
hence it was said these companyies companyld number be delivered to the
detenu until 11th july 1980. this was the explanation
offered by the detaining authority for the delay in
supplying companyies of the documents statements and other
materials to the detenu but we do number think this explanation
can be accepted by us as satisfactory. it is clear from the
facts narrated above that though the assistant companylector of
customs received the letter of the detenu forwarded by the
deputy secretary on 12th june 1980 he did number respond to it
until 24th june 1980 and this delay of 12 days has number been
satisfactorily explained either in the affidavit of c.r. mulherkar or in any affidavit filed by the assistant
collector of customs. it was urged before us that the
documents and statements of which companyies were requested by
the detenu ran into 89 pages and it was therefore reasonable
to assume that a few days must have been taken in the
customs department to make companyies of these documents and
statements and hence the time of 12 days taken up by the
assistant companylector of customs in sending companyies of the
documents and statements to the
deputy secretary companyld number be said to be unreasonable. this
argument is patently unsound because the assistant
collector of customs ought to have kept ready with him
copies of the documents statements and other materials
relied upon in the grounds of detention since it should have
been anticipated that these companyies would have to be supplied
to the detenu in order to enable him to make an effective
representation against his detention and it does number lie in
the mouth of the assistant companylector of customs to say that
his department started making companyies for the first time when
a request for companyies was made by the detenu. in fact companyies
of the documents. statements and other materials relied upon
in the grounds of detention should have been available with
the detaining authority itself so that they companyld be
supplied to the detenu immediately as soon as a request was
made in that behalf. of companyrse our view is and that is what
we have said in the earlier part of the judgment that
copies of the documents statements and other materials
relied upon in the grounds of detention from part of such
grounds and they have to be supplied to the detenu within
the time limited under clause  5  of article 22 and section
3 sub-section  3  of companyeposa act but even if that be number
the companyrect view there is little doubt that companyies of these
documents. statements and other materials should be
available with the detaining authority and they should be
supplied without unreasonable delay as soon as the detenu
makes a request for the same. the time of 12 days taken up
by the assistant companylector of customs was therefore
unreasonably long for which numberexplanation at all was
forthcoming from the detaining authority. we must in the
circumstances hold that there was unreasonable delay on the
part of the detaining authority in supplying to the detenu
copies of the documents statements and other materials
relied upon in the grounds of detention and the companytinued
detention of the detenu was accordingly illegal and void and
the detenu was entitled to be released forthwith from
detention. it is also necessary to point out that there was
unreasonable delay in companysidering the representations of the
detenu dated 9th june 1980 and 26th june 1980. it is number
settled law that on a proper interpretation of clause  5  of
article 22 the detaining authority is under a
constitutional obligation to companysider the representation of
the detenu as early as possible and if there is
unreasonable delay in companysidering such representation it
would have the effect of invalidating the detention of the
detenu. vide v. j. jain v. pradhan  1  here in the present
case the representation of the detenu dated 9th june 1980
was received by the deputy secretary on 14th june 1980 while
the representation dated 26th june 1980 was received on 30th
june 1980 and yet numberdecision was taken on these
representation of the detenu until 14th
july 1980. the question is whether this delay companyld be said
to have been reasonably explained by the detaining
authority. the representation of the detenu dated 9th june
1980 was received in the mantralaya on 14th june 1980 but
that day and the next day being holidays it came to the
hands of the companycerned officer only on 16th june 1980 and a
copy of it was forwarded to the assistant companylector of
customs for his remarks on 23rd june 1980. it is difficult
to see to see why the companycerned officer in the mantralaya
should have taken seven days for just forwarding a companyy of
the representation of the detenu to the assistant companylector
of customs. there is numberexplanation at all for this delay in
any of the affidavits filed on behalf of the detaining
authority. the companylector of customs thereafter forwarded his
remarks on 30th june 1980 and here again there was a delay
of seven days for which numberexplanation is forthcoming. the
remarks of the assistant companylector of customs were received
by the companycerned officer on 2nd july 1980 and there after
the representation started on its upward journey from the
undersecretary to the chief minister. it appears that by
this time the second representation of the detenu dated 26th
june 1980 was also received by the state government and
hence this representation was also subjected to the same
process as the representation dated 9th june 1980. it was
only on 11th july 1980 that these two representations dated
9th june 1980 and 26th june 1980 came to be companysidered by
the under secretary and he made a numbering on the file
recommending that the request of the detenu for revocation
of the order of detention may be rejected and this numbering
was approved by the deputy secretary as well as the
secretary on the same day and the chief minister endorsed it
on 14th july 1980. it is indeed difficult to see how these
two representations of the detenu companyld be rejected by the
detaining authority when the request of the detenu for
copies of the tapes was pending and the secretary to the
state government in fact made a numbering on 11th july 1980
that the companyies of the tapes must be given to the detenu by
the customs department. but even if we take the view that it
was number necessary for the detaining authority to wait until
after the companyies of the tapes were supplied to the detenu
it is difficult to resist the companyclusion that the detaining
authority was guilty of unreasonable delay in companysidering
the two representations of the detenu and particularly the
representation dated 9th june 1980. this ground is also in
our opinion sufficient to invalidate the companytinued detention
of the detenu. these were the reasons for which we allowed the writ
petition and directed immediate release of the detenu from
detention. we may point out that we have number pronumbernced upon
the validity of the order of detention but merely held the
continued detention of the detenu
to be illegal on the ground of number-compliance with the
requirements of clause  5  of article 22 and sub-section  3
of section 3 of the companyeposa act and therefore numberhing that
is said by us in this judgment should be companysidered as an
expression of opinion on the validity or companyrectness of the
order of detention as made.