Vijay Pal Dalmia, Advocate & Partner Vaish
Associates Advocates
Email: vpdalmia@vaishlaw.com
Mobile: 09810081079
In the case of Hansmukh v. State of Gujarat & Ors. (AIR 1981 SC 28) has held that while the expression "grounds" in Article 22(5) includes not only conclusions of fact but also all the basic facts on which those conclusions are founded, and they are different from subsidiary facts or further particulars of these basic facts.
The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important.
While the "basic facts" being an integral part of the "grounds" must, according to Section 3(3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22(5) in Khudiram case [Khudiram Das v. State of W.B., (1975) 2 SCC 81 : 1975 SCC (Cri) 435 : (1975) 2 SCR 832.] , are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition.
It follows, that if in a case the so-called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenu within the period specified in Section 3(3), the omission will be fatal to the validity of the detention.
If, however, the grounds and facts but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars, also, must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time.
What is "reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case.
In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the facts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudiram case[Khudiram Das v. the State of W.B., (1975) 2 SCC 81 : 1975 SCC (Cri) 435 : (1975) 2 SCR 832.] ."
The decisions above clarify that when detention order is based upon basic facts on which conclusions are founded, and these are different from subsidiary facts and particulars of the basic facts. Thus, the distinction must be drawn between basic facts which are essentially factual constituents of the grounds and further particulars or subsidiary details. The basic facts constitute grounds of detention.
In Attorney General for India & Ors. Vs. Amratlal Prajivandas & Ors. (1994) 5 SCC 54 it has been observed that any detention order can be issued and sustained even in case of one or sole prejudicial act, provided the detaining authority has considered the gravity and nature of the act and other circumstances and inference was drawn by the detaining authority that the person concerned could continue to indulge in similar activity. Thus, in a given case, a single act might be sufficient to sustain an order of detention and it cannot be held that one single act could never constitute the basis for a detention order. It was observed that multiplicity of ground for making or sustaining a detention order was not necessary.
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