The non-supply of legible copies of the documents relied upon by the detaining authority renders the detention of the detenu void ab initio and cannot be validated under section 5A of the COFEPOSA Act.

Headnote:
COFEPOSA ACT - DETENTION - GROUNDS OF DETENTION - SUPPLY OF DOCUMENTS - NON-SUPPLY OF LEGIBLE COPIES OF DOCUMENTS - EFFECT - SECTION 5A OF COFEPOSA ACT - APPLICABILITY - VOID AB INITIO DETENTION - VALIDATION UNDER SECTION 5A - IMPOSSIBILITY.
Fact of the Case:

The detenu, Gopaldas H. Pandit, was detained under the COFEPOSA Act on the grounds of smuggling. He challenged his detention on various grounds, including the non-supply of legible copies of the documents relied upon by the detaining authority.
Finding of the Court:

The court found that the copies of the documents supplied to the detenu were wholly illegible and that the detaining authority had failed to take due care and precaution to supply legible copies of the documents to the detenu. The court held that the non-supply of legible copies of the documents amounted to non-supply of the documents altogether and that this rendered the detention of the detenu void ab initio.
Issues: 1. Whether the non-supply of legible copies of the documents relied upon by the detaining authority rendered the detention of the detenu void ab initio? 2. Whether section 5A of the COFEPOSA Act could be invoked to validate the void detention?
Ratio Decidendi: 1. The court held that the supply of legible copies of the documents relied upon by the detaining authority was a Constitutional safeguard guaranteed under Article 22(5) of the Constitution of India. The court further held that the non-supply of legible copies of the documents amounted to non-supply of the documents altogether and that this rendered the detention of the detenu void ab initio. 2. The court held that section 5A of the COFEPOSA Act could not be invoked to validate the void detention because section 5A came into operation only after the communication of grounds and following the Constitutional safeguards. The court held that if the grounds themselves were not communicated, then section 5A would have no application.
Final Decision: The court allowed the writ petition and declared the continued detention of the detenu as illegal and void.

JUDGMENT - Dharmadhikari C.S.,J:- The detenu Gopaldas H. Pandit @ Gopal Sharma is detained under the COFEPOSA Act vide order dated 13th April 1981. On the same day grounds of detention were also served on the detenu. The detenu made a representation against this order of detention on 1st of July 1981, which was addressed to the Minister of State for Home Affairs, State of Maharashtra. It appears that this representation was presented by the counsel for the detenu personally. The said representation came to be rejected on 18th July 1981. In due course the detenu appeared before the Advisory Board and in pursuance of the opinion expressed by the Advisory Board his detention was also confirmed. In the present petition the detention order issued on 13th April 1981 as well as the continued detention of the detenu is challenged by the petitioner on various grounds.

2. Mr. Canteenwala, learned counsel appearing for the petitioner con

tended before us that the continued detention of the detenu is illegal, as the representation made by the detenu was not considered expeditiously. According to the learned counsel, there has been undue and unexplained delay in considering the said representation. In support of this contention the learned counsel has placed reliance upon the various decisions of the Supreme Court including the decisions in (Harish Pahwa v. State of U. P. and others)1 and in (Smt. Khatoon Begum v. Union of India and others)2. Mr. Canteen wala also contended that the mass of the records furnished by the detaining authority contains innumerable pages which are not even legible or readable. He has drawn our attention to the averments made in the petition wherein the details of these documents are given. He also contended that from the affidavit filed by the detaining authority it is clear that these documents were considered and relied upon for the purpose of detention. Accordingtothe learned counsel, supplying illegible documents amounts to non-supply of documents and, therefore, the order of detention is wholly void In support of this contention he has relied upon the decision of the Supreme Court in (Kirit Kumar Chamanlal Kundaliya v. Union of India and others)3 as well as other decisions. Mr. Canteenwala further contended that some of the docu ments were not supplied in a language which the detenu understood and on that count also the continued detention of the detenu is illegal.

3. According to Mr. Canteenwala, the detention is also vitiated

because of the non-application of mind to the material facts and circums

tances. The detaining authority has not taken into consideration the plea of alibi raised by the detenu together with the medical records and other certificates. A conclusion is reached by the detaining authority-about the ownership and possession of the second floor of the building when there is no material on record from which an inference could be drawn that at the relevant time the detenu was concerned with the possession of the premises. According to the learned counsel it is quite clear from the various documents placed on record that the Fagon Company Private Limited had filed a suit against the detenu and his son and had obtained an injunction restraining them from entering into the premises indispute.This was a material fact which the detaining authority did not take into consideration. Once there was in the field an order of injunction passed by the competent Court of law, it cannot be reasonably concluded or inferred that the detenu had an access to the premises in dispute and non-considerationof this material fact must vitiate the subjective satisfaction arrived at under section 3 of the Act. Thelearned counsel further contended that the grounds of detention are also factually baseless and the satisfaction is wholly based on conjectures. He also contended that in the affidavit, for the first time the detaining authority has tried to make

Click Here to Read the rest of this document