1997 Supreme(Cal) 347

High Court Of Calcutta
S. B. SINHA, BHASKAR BHATTACHARYA
AMIT KUMAR AGARWALLA - Appellant
Versus
UNION OF INDIA - Respondent
W. P.  16674 (W)  Of  1997
Decided On : 09/04/1997

Headnote:

Preventive Detention - Supply of Documents - Legibility - Vagueness of Grounds - Res Judicata - Habeas Corpus. Held: (i) It is obligatory on the part of the detaining authority to supply legible copies of all the relevant documents to the petitioner. (ii) The plea that some of the documents were on thermal fax papers and, thus, legible copies thereof cannot be supplied is rejected. (iii) It is not for the Court to consider as to which documents are vital or material. (iv) The detaining authority is bound to supply all the documents which form part of the grounds. (v) The order of detention is bad if the detaining authority has supplied only truncated documents. (vi) The right to file representation must be real and not illusory. (vii) The documents formed part of the grounds and/or pari passu thereof meaning thereby such documents should be supplied along with grounds. (viii) The terminology 'res judicata' connotes 'adjudication'. No adjudication has yet been made in the writ application filed earlier by the petitioners. (ix) An application for issuance of writ of habeas corpus cannot be dismissed only on the ground that the petitioners have not approached this Court with clean hands.

Fact of the Case:

The petitioners, Ajit Kumar Agarwala and Amit Kumar Agarwala, were detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) on the ground that they were habitual smugglers and were exporting goods showing higher invoices and used to get draw backs. The petitioners filed writ petitions challenging the orders of detention on the ground that the grounds of detention and the documents relied upon were not supplied to them together with the grounds, some of the grounds were vague, and the orders of detention suffered from a total non-application of mind on the part of the detaining authority.

Finding of the Court:

The Court found that some of the documents supplied to the petitioners were absolutely blank, several documents were missing, and some of the documents were illegible. The Court also found that the detaining authority had not supplied legible copies of all the relevant documents to the petitioners, and that some of the grounds taken in the grounds of detention were absolutely vague. The Court held that the orders of detention were bad on the ground that the detaining authority had not complied with the procedural safeguards guaranteed to the petitioners under Section 3(3) of COFEPOSA and Article 22(5) of the Constitution of India.

Issues: 1. Whether the detaining authority is obliged to supply legible copies of all the relevant documents to the petitioner? 2. Whether the plea that some of the documents were on thermal fax papers and, thus, legible copies thereof cannot be supplied is tenable? 3. Whether it is for the Court to consider as to which documents are vital or material? 4. Whether the detaining authority is bound to supply all the documents which form part of the grounds? 5. Whether the order of detention is bad if the detaining authority has supplied only truncated documents? 6. Whether the right to file representation must be real and not illusory? 7. Whether the documents formed part of the grounds and/or pari passu thereof meaning thereby such documents should be supplied along with grounds? 8. Whether the terminology 'res judicata' connotes 'adjudication'? 9. Whether an application for issuance of writ of habeas corpus can be dismissed only on the ground that the petitioners have not approached this Court with clean hands?

Ratio Decidendi: 1. It is obligatory on the part of the detaining authority to supply legible copies of all the relevant documents to the petitioner. 2. The plea that some of the documents were on thermal fax papers and, thus, legible copies thereof cannot be supplied is rejected. 3. It is not for the Court to consider as to which documents are vital or material. 4. The detaining authority is bound to supply all the documents which form part of the grounds. 5. The order of detention is bad if the detaining authority has supplied only truncated documents. 6. The right to file representation must be real and not illusory. 7. The documents formed part of the grounds and/or pari passu thereof meaning thereby such documents should be supplied along with grounds. 8. The terminology 'res judicata' connotes 'adjudication'. No adjudication has yet been made in the writ application filed earlier by the petitioners. 9. An application for issuance of writ of habeas corpus cannot be dismissed only on the ground that the petitioners have not approached this Court with clean hands.

Final Decision: The Court allowed the writ petitions and set aside the orders of detention passed against the petitioners. The Court directed the respondents to set the detenus at liberty forthwith unless wanted in connection with any other case.