2006 Supreme(SC) 974

2006(8) Supreme 781
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S. B. Sinha and Dalveer Bhandari, JJ.
Adishwar Jain - Appellant
versus
Union of India & Anr. - Respondents
Civil Appeal No. 4563 of 2006
(Arising out of SLP (Civil) No. 6402 of 2006)
Decided on 19-10-2006
Counsel for the Parties :
For the Appellant : Mukul Rohatgi, Sr. Advocate, Ms. Aparajita Singh, Vikram Choudhary and D. Mahesh Babu, Advocates.
For the Respondent-Union of India : Vikas Singh, A.S.G., Chinmoy Pradip Sharma, Ms. Amrita Narayan and B. Krishna Prasad, Advocates.
For the State of Punjab : R.K. Rathore, M.K. Verma and Arun K. Sinha, Advocates.

IMPORTANT POINT
All relevant documents must be supplied to detenu so as to enable him to make an effective representation which is his fundamental right under Article 22(5) of Constitution of India.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3 - Preventive Detention Order - Petitioner upon exporting his goods was entitled to credit under Duty Entitlement Pass Book Scheme - He allegedly misdeclared both value and description of goods upon procuring fake and false bills - Detention order was passed - Petitioner questioned its legality and validity before High Court on ground of unexplained delay in passing order of detention - High Court dismissed writ - Appeal - Four months delay remained unexplained when proposal for detention was made on 2-12-2004 and detention order was made on 5-4-2005 - Delay remained unexplained - Permissibility of new grounds to be raised in appeal stage - In view of admitted facts appellant permitted to raise said questions - Non-placement of material documents before detaining authority - Documents involving Civil Court proceedings whereby appellant was alleged to have obstructed proceedings were not filed - Not only delay in issuing detention order stood unexplained but order itself would become vitiated - Copies of incriminating statement of appellant and another person, purporting to have been recorded u/s 108 Customs Act were not placed before detaining authority - Documents were material - Order of detention was vitiated - Impugned judgment was liable to be set aside - Detention order was liable to be quashed.

       Held : Indisputably, delay to some extent stands explained. But, we fail to understand as to why despite the fact that the proposal for detention was made on 2.12.2004, the order of detention was passed after four months. We must also notice that in the meantime on 20.12.2004, the authorities of the DRI had clearly stated that transactions after 11.10.2003 were not under the scrutiny.(Para 9)

       Furthermore, as noticed hereinbefore, the authorities of the DRI by a letter dated 28.02.2005 requested the Bank to defreeze the bank accounts of Appellant. The said documents, in our opinion, were material. It was, therefore, difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them. It is no doubt true that if the delay is sufficiently explained, the same would not be a ground for quashing an order of detention under COFEPOSA, but as in this case a major part of delay remains unexplained.(Paras 10 to 13)

       Although learned Additional Solicitor General may be correct in his submissions that ordinarily we should not exercise our discretionary jurisdiction under Article 136 of the Constitution of India by allowing Appellant to raise new grounds but, in our opinion, we may have to do so as an order of detention may have to be considered from a different angle. It may be true that the period of detention is over. It may further be true that Appellant had remained in detention for the entire period but it is one thing to say that the writ of Habeas Corpus in this circumstances cannot issue but it is another thing to say that an order of detention is required to be quashed so as to enable the detainee to avoid his civil liabilities under SAFEMA as also protect his own reputation. (Para 19)

       We have noticed hereinbefore that learned Additional Solicitor General contended that Appellant obstructed the proceedings by initiating various civil litigations. But, indisputably, those documents involving the civil court proceedings were not placed before the detaining authority. If the same had not been done, not only the delay, in issuing the order of detention stood unexplained but also thereby the order itself would become vitiated. Furthermore, the civil court proceedings were over on 19.11.2004. Evidently, the detaining authority did not take immediate steps to detain Appellant. Why the documents pertaining to the proceedings of the Civil Court had not been placed before the detaining authority has not been explained. On their own showing, Respondents admit that they were relevant documents.(Para 22)

       We have been taken through the order of detention. The statements of Appellant and the said Prabhjot Singh were recorded therein in extenso. Recording of such statement must have been made from the xeroxed copies of such documents which were available with the detaining authority. The self-inculpatory statements of Appellant as also Prabhjot Singh purported to have been made in terms of Section 108 of the Customs Act were required to be considered before the order of detention could be passed. The same was not done. The original of such documents might not been available with the detaining authority but admittedly the xeroxed copies were. It has not been denied or disputed that even the xeroxed copies of the said documents had not been supplied to the detenue. It may be true that Appellant in his representation dated 14.06.2005 requested for showing him the original documents referred to or mentioned in the grounds of detention but then at least the xeroxed copies thereof should have been made available to him.(Para 28)

       It is a trite law that all documents which are not material are not necessary to be supplied. What is necessary to be supplied is the relevant and the material documents, but, thus, all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right under Article 22(5) of the Constitution of India. Right to make an effective representation is also a statutory right. [See Sunila Jain v. Union of India and Another [(2006) 3 SCC 321](Para 31)

       In this case, the statements of Appellant and Prabhjot Singh, in our opinion, were material. They could not have been withheld. If original of the said documents were not available, xeroxed copies thereof could have been made available to him. (Para 32)

       The detaining authority moreover while relying on the said documents in one part of the order of detention could not have stated in another part that he was not relying thereupon. The very fact that he had referred to the said statements in ex tenso is itself a pointer to the fact that he had relied upon the said documents. Even in the earlier part of the impugned order of detention, i.e. detaining authority appears to have drawn his own conclusions.(Para 33)

       In view of our findings aforementioned, it is not necessary to consider the contention raised by Mr. Mukul Rohtagi that order of detention suffers from non-application of mind. The judgment of the High Court, therefore, cannot be sustained. It is set aside accordingly and the order of detention passed against Appellant is quashed.(Para 34)