IMPORTANT POINT
In a preventive detention case respondent can file additional affidavit but petitioner must be given an opportunity to rebut it.

JUDGMENT (Oral)

M. Jagannadha Rao, C. J. - Question is whether in a preventive detention matter, we can permit filing of an additional affidavit by the respondents.

2. When the respondent filed an additional affidavit, learned counsel for the petitioner has objected to the same. He has brought to our notice a decision of this Court reported as Lalit Pataudi v. Union of India & Ors.1 All that is said in that Judgment is that if an additional affidavit is permitted to be filed by the respondent, the petitioner must be given an opportunity to rebut, and this Court must also take care to see that documents are not concocted by the respondent between the date of original application and the date of the additional affidavit.

3. The decision of the Supreme Court in the case of Kirit Kumar Chaman Lal Kundaliya v. Union of India and Others2, wherein it has been observed that the High Court should not have waded through the confidential files to fish out a point against the detenu is distinguishable. There the point was that the Court tried to make out a case which was not mentioned in the detention order. In that case only two documents were referred to in the detention order, but they were not supplied to the detenu: The High Court rejected the contention raised by the petitioner/detenu in regard to non-supply of the documents on the ground that the documents were not relevant. This, the Court did, by looking into the documents in the file. The Supreme Court objected to the procedure on the ground that it was not open to the Court to wade through the confidential files to fish out a point against the detenu, and go into the relevance of the documents. In our view, the said decision is not an authority for the proposition that an additional affidavit cannot be filed by the respondents nor is it an authority for the proposition that the Court is always precluded from looking into the files as long as the documents are genuine documents and they are already there at the time of the original application. It would certainly be open to the Court to look into them or to permit the parties to file an additional affidavit, though the genuineness of the documents is a separate matter. In this context, it is necessary to refer to the decision of the Supreme Court in State of Gujarat v. Sunil Fulchand Shah and Another3, wherein the Supreme Court itself perused the files while disposing of a COFEPOSA matter. There the dispute was to what were the documents produced before the detaining authority. With a view to dispelling any suspicion about the detaining authority having considered the documents; the Supreme Court looked into the file. The said decision, therefore, supports our view. There is nothing contrary to the view which we have discussed above in Lalit Pataudi v. Union of India & others (supra). We, therefore, take the additional affidavit filed by the respondent on record. However, we permit the petitioner to file a reply so that the additional affidavit may not cause any prejudice to him.

Adjourned to 12.9.1994 at 2. P.M.

Additional affidavit taken on record.

1. 1990 (41) D.L.T. 8.

2. A.I.R. S.C 1621.