Jagjit Pal Singh Anand vs Union of India (UOI) and Others

Y.K. Sabharwal, J.—The Joint Secretary to the Government of India, Ministry of Finance (Department of Revenue) by order dated 7th November, 1989 passed in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 directed the detention of the petitioner with a view to preventing him from dealing in smuggled goods otherwise than by engaging in concealing, keeping and transporting smuggled goods. Along with the grounds of detention the detenu was supplied with the relied upon document mentioned in the list enclosed with the grounds of detention. The order of detention and the continued detention of the petitioner is under challenge in this petition.

Learned Counsel for the petitioner submits that the order of detention and continued detention of the petitioner is illegal as some of the documents on which the detaining authority relied upon in passing the order of detention were not legible documents and as such there was no proper and effective communication of the order of detention which includes not only the grounds of detention but also the documents relied upon by the detaining authority in making the order of detention. The documents said to be illegible are mentioned in Para 12 of the writ petition. In Para 17 of the petition the detenu has pleaded that he requested the detaining authority to supply legible copies of the documents as mentioned in Para 12 of the petition but the same have not been supplied in spite of the request. Counsel submits that non-supply of legible documents tantamounts to non-supply of the relied upon documents which makes the detention illegal and vocative of Article 22(5) of the Constitution. The writ petition was filed on 13th December, 1989. From the counter-affidavit filed by Shri A. K. Batabayal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue it appears that the legible copies of the documents complained of were supplied to the detenu on 5th January, 1990. Shri Batabayal has also deposed that the detenu was given legible copies of the documents but in pursuance of his representation dated 28th November, 1989 the legible copies of the asked for documents were again given to the detenu on 5th January, 1990. There is also no dispute about the fact that the meeting of the Advisory Board was fixed for 9th January, 1990. The 6th and 7th January, 1990 were holidays being Saturday and Sunday.

Adverting to the plea that the detenu was given legible copies of the relied upon documents, I may notice only some of the documents about which complaint has been made in Para 12 of the petition. On opportunity being afforded by the Court even learned Counsel for the respondent could not read the documents marked C-62, C-160, C-161, C-166 and D-92. It is not necessary to give a complete list of illegible documents. It stands established that the legible copies of the aforesaid relied upon documents were not supplied to the petitioner along with the grounds of detention or even within 15 days of the passing of the order of detention.

It is well settled that the order of detention as also the grounds of detention and the documents relied on by the detaining authority in reaching subjective satisfaction have to be supplied to the detenu ordinarily within 5 days of the passing of the order of detention or in exceptional circumstances within 15 days of the passing of the order of detention. There can be no proper communication of the order of detention if some of the documents accompanying the order of detention that are supplied to the detenu are not legible. It will amount to non-supply of those documents. In the grounds of detention the detaining authority has stated that he had relied upon the documents mentioned in the enclosed list. Ordinarily the non-supply of legible copies of the relied upon documents within 15 days of the passing of the order of detention will vitiate the order of detention as there will be no communication to the detenu as required by Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It is the obligation of the detaining authority to ensure that legible copies of relied upon documents are supplied to the detenu. In the present case the detenu made a representation dated 21st November, 1989 and made a grievance about the supply of illegible documents and requested for supply of legible copies of documents so that he could make an effective and purposeful representation. The legible copies of documents were, however, supplied as late as on 5th January, 1990 which can hardly be considered as reasonable time for preparation of the legible copies of the documents. The next two days, namely, 6th and 7th January, 1990 being holidays, on the- facts and circumstances of the case there is hardly reasonable time available to the detenu to prepare his case for presentation before the Advisory Board which met on 9th January, 1990.

Learned Counsel for the respondent relied on the decision of P. K. Bahri, J. In Sanjeev Kumar Aggarwal v. Union of India Crl. Writ 89/89 decided on December 12, 1989 in support of the contention that no prejudice had been caused to detenu in making representation to the Advisory Board on account of non-supply of the, documents. The said decision, however, has no applicability to the facts and circumstances of the present case. In the cited case the Court was considering the documents which had been casually mentioned in the grounds of detention and gist of the said documents stood reproduced in the grounds of detention. On those facts, it was held that no prejudice had been caused to the detenu in making representation to the Advisory Board. In the present case however, this Court is considering the effect of non-supply of the legible copies of the relied upon documents and not the documents which are casually referred in the grounds of detention.

In view of the aforesaid discussion, in my opinion, the detenu''s right guaranteed under Article 22(5) of the Constitution has been violated on account of non-supply of legible documents along with the ground of detention or within 15 days thereafter or within a reasonable time even after the request made in that regard by the detenu. In view of this conclusion, it is not necessary to consider other contentions urged in support of challenge to the order of detention.

For the aforesaid reasons, the writ petition is allowed. The rule is made absolute and the order of detention and the continued detention of the petitioner is quashed. The petitioner is directed to be set at liberty forthwith, if not required in any other case.