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1983 Supreme(Bom) 354
BOMBAY HIGH COURT
B. C. GADGIL AND S. J. DESHPANDE, JJ.
Popatlal Amichand Shah, Petitioner
Versus
State of Maharashtra and another, Respondents.
Criminal Writ Petn. No. 17 of 1983
Decided on : 12-10-1983.
M.G. Karmali with S.V. Pikale, for Petitioner; M.R. Kotwal, Public Prosecutor, for Respondents.
Non-compliance with the requirement of supplying relevant material to the detenu along with the grounds of detention renders the detention order void ab initio.
Headnote:
COFEPOSA ACT - DETENTION ORDER - NON-SUPPLY OF MATERIAL - VOID AB INITIO - KEY LEGAL PRINCIPLE: Failure to supply relevant material to the detenu along with the grounds of detention renders the detention order void ab initio.
Fact of the Case:
The petitioner challenged a detention order issued under the COFEPOSA Act, alleging that the material on which one of the grounds of detention was formulated was not supplied to him. The government contended that non-supply of material would not render the detention order void, but only affect the continuance of the detention.
Finding of the Court:
The court held that the detention order was void ab initio due to the non-supply of relevant material, relying on Supreme Court precedents that established the necessity of providing the detenu with all basic facts and materials relied upon in the grounds of detention.
Issues: Whether the non-supply of material on which a ground of detention is formulated renders the detention order void or only affects the continuance of the detention.
Ratio Decidendi: The court interpreted Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act to conclude that the service of grounds of detention is complete only when accompanied by the documents or materials on which the order is based. Failure to provide such material vitiates the detention and makes it void from the outset.
Final Decision: The court quashed the impugned detention order as void and inoperative.
GADGIL, J.:- By this petition the petitioner is challenging the detention order dated 3-4-1975 Ex. A to the petition. This order was issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA Act"). Along with the detention order the grounds of detention were also formulated and this can be seen from Ex. C to the petition. In pursuance of this detention order the petitioner was detained and in due course of time he was released in the month of March 1977 on revocation of emergency. It appears that on the basis of this detention order certain proceedings under the Smugglers and Foreign Exchange Manipulates (Forfeiture of Property) Act, 1976 (hereinafter referred to as the "SAFEMA Act") have been initiated. There are certain penal consequences arising out of these SAFEMA proceedings. The petitioner, therefore, filed the present writ petition challenging the detention order as mentioned above.
2. In the petition, a number of grounds have been taken by the petitioner. However, it is not necessary to give the details of all these grounds as the petition can be conveniently decided on one of the grounds. We have already observed that there were a number of grounds of detention. As far as the ground No. 2 is concerned it is an admitted fact that the material on which that ground was formulated was not supplied to the petitioner. Shri Karmali contended, that the detention order is bad and void on account of this omission and that a necessary declaration may be issued. As against this Shri Kotwal, for the Respondents, submitted that non-supply of material on which grounds of detention are formulated would not render the detention order bad, or void. Ac cording to him the only effect of such omission would be to make the continuance of the detention bad. In substance, he submitted that the detention order would be valid but the detention as such would be bad as the material has not been supplied. He based, this submission on the ground that the omission of supply of material to the detenu would prejudicially affect the right of the detenu to make representation as contemplated by Art. 22 (5) of the Constitution. It is in this way he urged that though the detention order is good, the detention and its continuance under that order would be bad. Shri Karmali urged that on account of omission to supply material, not only the detention but the detention order itself would be bad.
3. We have heard the learned advocates on behalf of both the parties about the abovementioned submissions. Shri Karmali as well as Shri Kotwal relied upon a number of Supreme Court decisions in support of their respective contentions. We would briefly refer to those various decisions.
4. In the first instance we would like to consider the decisions relied, upon by Shri Kotwal. In the case of Icchu Devi v. Union of India, reported in AIR 1980 SC 1983, the material relied upon in the grounds of detention was not supplied. The Supreme Court accepted the contention about such non-supply. Shri Kotwal relied upon the following observations in para 6 of the judgment :
"There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3, sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention...... If this requirement of Clause (5) of Article 22 read with Section 3, sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void". In case of Nainmal Pertap Mal v. Union of India, reported in AIR 1980 SC 2129: (1980 Cri LJ 1479), the grounds were supplied in English though the detenu was not knowing that language. The Supreme Court held that this vitiates the order of detention
