Abdul Sattar Abdul Kadar Shaikh vs Union Of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1990 Supreme(SC) 39

SUPREME COURT OF INDIA
B.C. RAY AND K. JAYACHANDRA REDDY, JJ.
ABDUL SATTAR ABDUL KADAR SHAIKH
Versus
UNION OF INDIA AND OTHERS.
Writ Petition (Criminal) No. 532 of 1989 {Under Article 32 of the Constitution of India}, decided on January 24, 1990
Advocates appeared :
Ram Jethamalani, Senior Advocate (Ms Kamini Jaiswal, Advocate, with him) for the Petitioner;
Maganbhai Barot and M.N. Shroff, Advocates, for the Respondents.

Advocates:
KAMINI JAISWAL, M.N.SHROFF, MAGANBHAI R.BAROT, RAM JETHMALANI

Headnote:Constitution of India 1950 - Article. 32 - Gujarat Prevention of Anti-Social Activities Act, 1985- Section 3(1)- Detention under- All the documents, which were relied upon, have been supplied alongwith the grounds- Request for the supply of some other documents- Rejected- Writ petition- Whether any kind of failure to furnish documents or materials asked by the detenu to be supplied per se renders the detention illegal on the ground that a reasonable opportunity has not been afforded?- (No).
Held: The grounds were served on the detenu in time alongwith the documents relied upon. In addition the copies of the complaints and details of crimes were also mentioned in the annexures. That apart as mentioned in the reply of the Government the detenu was also furnished the copies of the First Information Reports. The Arrest Register also inter alia showed that, the petitioner was released on bail in respect of criminal cases mentioned in this extract. In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon. These documents were not relied upon by the detaining authority. When a request is made by the detenu for supply of these bail applications and orders refusing thereon are made, the court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal. No authority has been placed before us which goes to the extent of holding that a mere non-supply of any document whatever its nature may be, to the detenu per se amounts to the denial of an opportunity under Article 22(5). The detenu, as a matter of fact, made his representation. What is more, he filed a habeas corpus petition earlier in this Court and no grievance has been made about the non-supply of those bail applications or other documents for which he made a request later, in his special leave petition. In fact he has referred to the details of the crimes, their numbers registered against him. Further the nature of the crime also is referred to by him therein and he has also referred to the fact that bail applications were filed on his behalf and he was released on bail. We may also point out that though the principle of res judicata or constructive res judicata can not be made applicable to a case of detention yet there should be some finality. The petitioner having failed in his earlier attempts has now again come forward with the present petitioner with a highly belated plea that. some documents, though he made a request, have not been supplied. This request, as we find from the records, was made after this Court dismissed the habeas corpus petition No. 302/89. He, however, justifies the filing of the present petition on a plea that he was unaware of the existence of these documents. But as noted above his petition itself shows that he was aware of all these documents. Therefore, we do not see any bona fides in this plea of his. Under these circumstances, we are unable to say that the refusal to supply the documents requested by him amounts to violation of Article 22(5). (Para 9)

Judgment

JAYACHANDRA REDDY, J.-This is an application under Article 32 of the Constitution of India seeking a writ of habeas corpus. The petitioner has been detained under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act of 1985 by an order of detention dated May 10, 1989 passed by the Commissioner of Police, Surat City. The petitioner earlier had filed a similar Writ Petition No. 302 of 1989 in this Court, which was dismissed on September 29, 1989. The present writ petition is filed for the same relief but on the basis of some grounds which, according to the petitioner, were not urged in that writ petition. The learned counsel submits that the petitioner is not an enlightened person and is not conversant with his constitutional rights and earlier he was not aware of the existence of some relevant documents namely:

1. Copies of the FIRs pertaining to the offences registered against the petitioner under the Bombay Prohibition Act in the years 1988 and 1989.

2. Copies of the FIR pertaining to the offences registered against the petitioner under Sections 147, 148, 149, 324, 506(2) Indian Penal Code.

3. Copies of the bail applications filed by the petitioner in the cases registered against him under the Bombay Prohibition Act, and Indian Penal Code and copies of the relevant bail orders whereby the petitioner was released on bail.

2. He further submits that these documents were relevant and material and when the petitioner made a request to supply all these documents, the same was rejected and according to the learned counsel the refusal amounts to violation of the petitioners rights under Article 22(5) of the Constitution of India and therefore, the detention has to be held as illegal.

3. At this juncture, it is necessary to notice some of the annexures to the detention order filed by the Commissioner of Police. It is stated in his affidavit that copies of the FIRs of the offences registered have in fact been supplied to the detenu and that so far as the bail applications the detenu has been furnished the copies of the relevant extracts from the Arrest Register which also show that the petitioner was released on bail in respect of the criminal cases. He further stated that copies of all the documents, which were relied upon, have been supplied along with the grounds.

4. The main submission of the learned counsel is that even such documents which were not relied upon or do not find the basis of the detention, if a request of supply is made by the detenu, have to be supplied to him and whether they are relevant to him or not, it is for the detenu to decide and not for the detaining authority to judge.

5. It is not in dispute that the petitioner made a request for the supply of these documents and the same was rejected by the detaining authority on September 30, 1989. So far as the FIRs are concerned it is stated in the affidavit-in-reply that the copies have been supplied to the detenu. At any rate, Annexure D to the grounds of detention mentions the details of papers supplied to the petitioner and from that we find that the copies of the complaints in each of these crimes and the statements of witnesses have been supplied. Annexure E mentions the details of the five crimes registered against the petitioner. In the representation made by the petitioner and also in the Habeas Corpus Writ Petition No. 302 of 1989, as a matter of fact, the petitioner has referred to the details of all the crimes. Under these circumstances, we find it difficult to accept that firstly there was no supply of the copies of the FIRs and even otherwise the petitioner was in any way handicapped in making an effective representation.

6. Learned counsel, however, firmly contended that non-supply of the bail applications and the relevant orders thereon in spite of a request amounts to violation of Article 22(5) of the Constitution of India.

7. In the context of the scope of the limited submissions it is not necessary for us to refer to the details of

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1990 Supreme(SC) 39

Cases Referred (1)