The procedural safeguards under Article 22(5) of the Constitution require that all documents referred to in the grounds of detention must be furnished to the detenu, and that undue delay in furnishing such documents denies the right to make an effective representation.

Headnote:
CONSTITUTIONAL LAW - HABEAS CORPUS - PROCEDURE - DETENTION - GROUNDS - COMMUNICATION - ARTICLE 22(5) - CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT, 1994 - SECTION 3(1).
Fact of the Case:

Petitioner Anand Damani was arrested on 9.12.1995 under the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1994 (Cofeposa Act) for dealing with smuggled goods. The detention order was challenged on the grounds that a vital document, B.D. Mall's challan, was not supplied despite demand, some documents were illegible, and a spot memo relied upon in the affidavit-in-opposition was not disclosed earlier.
Finding of the Court:

The court found that the detaining authority had withheld a vital document, B.D. Mall's challan, and had supplied illegible copies of some documents, which violated the procedural safeguards under Article 22(5) of the Constitution. The court also held that the Screening Committee, which had made recommendations to the detaining authority, had no jurisdiction to do so and that the detaining authority could not surrender its decision-making power to an extraneous body.
Issues: 1. Whether the withholding of B.D. Mall's challan and the supply of illegible copies of documents violated the procedural safeguards under Article 22(5) of the Constitution? 2. Whether the Screening Committee had jurisdiction to make recommendations to the detaining authority?
Ratio Decidendi: 1. The court held that the withholding of B.D. Mall's challan and the supply of illegible copies of documents violated the procedural safeguards under Article 22(5) of the Constitution. The court relied on the Supreme Court decisions in Kirit Kumar Chamanlal Kundaliya v. Union of India, Ram Chandra A. Kamat v. Union of India, and Tushar Thakkar v. Union of India, which held that documents referred to in the grounds of detention must be furnished to the detenu, and that undue delay in furnishing such documents denies the right to make an effective representation. 2. The court held that the Screening Committee had no jurisdiction to make recommendations to the detaining authority. The court relied on the Supreme Court decision in State of Gujarat v. R.G. Teredesai, which held that an authority who is required to take a decision on its own subjective satisfaction cannot surrender to the recommendation made by a stranger body.
Final Decision: The court allowed the writ petition and directed the detenu to be released forthwith.

( 1 ) THIS is a writ application praying for a writ in the nature of Habeas Corpus for release of the petitioner Anand Damani, who was arrested on 9. 12. 95 on the strength of an order of detention dated 5th January, 1995 passed under the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1994 by the Joint Secretary, Cofeposa, Ministry of Finance, Department of Revenue, Government of India, New Delhi on the ground that the detenu had been dealing with the smuggled goods otherwise than by engaging in transporting or concealing of keeping the smuggled goods.

( 2 ) IT is not necessary to consider the facts of this case in details in view of the limited submissions made by Mr. Balai Chandra Roy, learned counsel appearing on behalf of the writ petitioner that in the instant case as admittedly one more vital document viz. , B. D. Mall's challans, which was specifically referred to at paragraphs 1, 7 and 28 of the detention order was not supplied in spite of demand being made by the defence and secondly, it was submitted by Mr. Roy that some of the documents on which the detaining authority relied on in the order of detention were illegible and accordingly procedural safeguard as provided under Article 22 of the Constitution of India were not followed.

( 3 ) NEXT, it was submitted that in the affidavit-in-opposition filed by the detaining authority the detaining authority had referred to and relied upon on a spot memo. dated 28. 4. 94 on the basis of which a challan of M/s. S. P. Roadways was found to be fictitious. In this connection the detaining authority in the affidavit-in-opposition has stated as follows :"that on subsequent follow up enquiry the road challan of M/s. S. P. Roadways of 23, Amratala St. Calcutta-1 dated 8. 2. 94 also proved fake and fictitious as there is no existence of M/s. S. P. Roadways in their given address which has been evident from the declaration in written on the body of spot memo. by Shri K. D. Sheth, the landlord of 23, Amaratala St. , Calcutta-1 against spot memo. dt. 28. 4. 94 as such there is not such tenant as above mentioned of ours in the past or present. "

( 4 ) THE document on which reliance was made in this affidavit was stated to be one of the documents on which detaining authority has relied upon but copy whereof was not given and was not disclosed earlier even in the detention order.

( 5 ) MR. Roy learned counsel appearing on behalf of the petitioner submitted that on the basis of the self-same allegations and on the same fact or transaction two other orders of detention were passed but this court released them on these grounds.

( 6 ) IT is submitted in the facts and circumstances of this case, particularly, the grounds and the materials were identical in the case of Govardhan Das Bhaiya who had already been released. Mr. Roy has also compaired the order of detention both in the case of Govardhan Das Bhaiya and the petitioner herein, namely, Anand Damani and pointed out word by word were same. The two orders of detention were identical excepting change in the name. The case of Govardhan Das Bhaiya was considered by a Division Bench of this court presided over by Mukul Gopal Mukherji, J. sitting with Vidya Nand, J. and by the order dated 4th May 1995 passed in Criminal Misc. Case No. 1433 of 1995 the said Division Bench for reasons indicating in the said judgment confirmed the order of detention could not be sustained and directed to release the detenu forthwith. In another similar case the case of Mukti Prosad Dutta was also considered almost on same facts by another Division Bench of this court in the case of Tapas Chowdhury v. Union of India reported in 1996 Cr LJ 579 Their Lordships of the said Division Bench took a similar view of the matter and allowed the writ petition and directed the detenu to be released forthwith. In the instant case B. D. Mall's challan was referred to in paragraphs 7 and 28 of the detention order and that in the representation that wa

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1997 Supreme(Cal) 41

High Court Of CalcuttaBHAGAWATI PRASAD BANERJEE, VIDYA NANDANAND DAMANI - AppellantVersusUNION OF INDIA - RespondentCRI. MISC. 514 Of 1997Decided On : 01/30/1997

The procedural safeguards under Article 22(5) of the Constitution require that all documents referred to in the grounds of detention must be furnished to the detenu, and that undue delay in furnishing such documents denies the right to make an effective representation.

Cases Referred (6)

High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE, VIDYA NAND
ANAND DAMANI - Appellant
Versus
UNION OF INDIA - Respondent
CRI. MISC. 514 Of 1997
Decided On : 01/30/1997