Noormohmad Ismail Shaikh vs Commissioner of Police and Others

A.P. Ravani, J.—Petitioner has been detained under the relevant provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 as per order of detention dated April 28, 1987 passed by the Commissioner of Police, Vadodara. At the time of service of the detention order, petitioner has been served with the grounds of detention also.

Learned Counsel for the petitioner has assailed the legality and validity of the detention order on the ground that the copies of the externment order dated April 3, 1983 and the judgment and order dated August 21, 1985 passed by this High Court quashing and setting aside the earlier detention order passed under the relevant provisions of the Act have not been supplied to the detenu and this has resulted into infraction of petitioner''s fundamental right under Article 22(5) of the Constitution of India inasmuch as he has not been able to make effective representation against the order of detention. This challenge is sought to be met by the learned Counsel for the respondents staling that the order of externment dated April 3, 1983 has been mentioned in the grounds of detention "only as a passing observation". This is so stated in para !0 of the affidavit in reply filed by the detaining authority. As regards the judgment and order of this High Court is concerned, it is submitted by the learned Counsel for the petitioner that it has also been referred to in the grounds of detention as "passing observation". However, in the affidavit in reply filed by the detaining authority, it is only stated that the contention raised by the petitioner is not tenable. We do not see any merit in the contention raised by the learned Counsel for the respondents. A detenu is entitled to receive all the vital and documents materials on the basis of which the grounds of detention have been framed. There may be cases in which mere reference to certain documents might have been made and those documents may not be forming part of the basis of the detention order. In some cases it may be possible for the detaining authority to make out a case that though the documents are referred to in the grounds of detention, they are not required to be supplied to the detenu. However, in the facts and circumstances of the case and particularly in view of the fact that two separate paragraphs have been mentioned in the grounds of detention, which clearly indicates that each paragraph has material bearing on the past activities of the detenu. While referring to this past activity, aforesaid two documents have in terms been referred, to, and, therefore, it cannot be said that the documents referred to and relied upon by the detaming authority while framing the grounds of detention were inconsequential or not material. The order of externment dated April 3, 1983 and the judgment and order of this High Court dated August 21, 1985 by which the previous order of detention was set aside cannot be said to be inconsequential or the documents of no significance. Moreover, these documents do not seem to have been referred to for considering alternative less drastic measures. In the facts and circumstances of the case these documents are very much important documents. Reading of the grounds of detention itself shows that while arriving at the subjective satisfaction the detaining authority has relied upon these documents as material and important documents. Therefore, in order to give an opportunity to the detenu for making effective representation against his detention order, copies of these documents ought to hove been supplied to him. Non supply of copies of these documents has resulted into infraction of the petitioner''s fundamental right under Article 22(5) of the Constitution of India inasmuch as the petitioner has been denied an opportunity to make effective representation against the detention order. It can also be stated that the petitioner''s fundamental right to be communicated about the grounds of detention has also been violated on account of non supply of the aforesaid documents.

Therefore, on the aforesaid ground alone, the petitioner/detenu is required to be released forthwith and his continued detention is required to be held illegal.

In the result, the petition is allowed.

The order of detention dated April 28, 1987 produced at Annexure ''A'' to the petition is quashed and set aside. We hold that the continued detention of the petitioner is illegal and the petitioner is directed to be released forthwith if not required in any other case. Rule made absolute accordingly.