Back
1985 Supreme(Del) 242
High Court Of Delhi
P.MOIDU HAJI - Appellant
Versus
UNION OF INDIA - Respondent
CRI.W.P. 63 of 1985
Decided On : 05/28/1985
Harjinder Singh, U.L.WATWANI
The detaining authority's failure to supply copies of documents referred to in the grounds of detention, even though not relied upon, violates the detenu's fundamental right to make effective representations under Art. 22(5) of the Constitution.
Headnote:
COFEPOSA ACT - DETENTION - SUPPLY OF DOCUMENTS - RIGHT TO MAKE EFFECTIVE REPRESENTATION - NON-SUPPLY OF DOCUMENTS REFERRED TO IN GROUNDS OF DETENTION - VIOLATION OF ART. 22(5) - DETENTION ORDERS QUASHED.
Fact of the Case:
Three detenus, P. Saidalavi Haji, K. Veerankutty, and A. M. Abdul Raheem, challenged their detention orders issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), alleging that they were denied the right to make effective representations due to the non-supply of documents referred to in the grounds of detention.
Finding of the Court:
The court held that the detaining authority's failure to supply copies of documents referred to in the grounds of detention, even though not relied upon, violated the detenus' fundamental rights under Art. 22(5) of the Constitution, as it prevented them from making effective representations against their detention.
Issues: 1. Whether the non-supply of documents referred to in the grounds of detention violated the detenus' right to make effective representations under Art. 22(5) of the Constitution? 2. Whether the detention orders were legally valid in light of the non-supply of documents?
Ratio Decidendi: 1. The court relied on previous judgments holding that the detaining authority must supply copies of documents referred to in the grounds of detention, even if not relied upon, if the detenu requests them. 2. The court held that the detaining authority's refusal to supply the requested documents, despite the detenus' specific requests, prevented them from making effective representations and, therefore, rendered their detention illegal.
Final Decision: The court quashed the detention orders of all three detenus and directed their immediate release unless they were required to be detained under any other valid order.
( 1 ) THIS judgment disposes of Criminal Writ Petitions Nos. 63 of 1985, 64 of 1985 and 65 of 1985. The common question which arises for consideration (in) each of the petitions is: Whether the petitioner was prevented from making an effective representation against the impugned detention order and thus the protection of fundamental rights guaranteed under Arts. 21 and 22 (5) of the Constitution was denied to him. The main plea is that in the grounds of detention, documents which have been relied upon by the detaining authority in each of the three cases not having been supplied to the detenus even on a specific request for supply of the same, they were not afforded the right of making the representations against the detention orders as envisaged in Art. 22 (5) of the Constitution and hence their continued detention is vitiated.
( 2 ) TO appreciate the rival contentions it is necessary to notice a few facts. In Criminal Writ No. 63 of 1985 the detenu P. Saidalavi Haji, who is presently lodged in Central Prison, Trivendrum, Kerala, was detained under an order of detention passed on January 25, 1985 by Shri K. K. Dwivedi, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue in exercise of powers conferred by S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act) with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. The grounds of detention also dated Jan. 25, 1985 were served on Feb. 13, 1985 a day after his arrest. Ground No. 13 refers to the search, which was conducted during the course of investigation, of the premises belonging to one P. K. Khalid Haji. As a result of the search 13 sheets were seized. The case is that only copies of two sheets out of 13 sheets seized were supplied to the detenu along with the grounds of detention. In spite of a request for supply of documents including the remainder of 11 sheets, those were not supplied as according to the detaining authority those have not been relied upon. At this stage it is useful to quote relevant portions of groundno. 13 of the grounds of detention to highlight the fact that those 13 documents have been at least referred to by the detaining authority:
"as a result, 13 sheets were seized. At the time of the search P. K. Khalid Haji was not present and was reported to be out of India. The seized 13 sheets contain two letters both written by one Mohamed Kutty from Abudhabi to Khalid Haji on 19-1-1984. Out of these two letters one is marked page 6 which is the latest out of those two letters and in the said letter Khalid Haji while in India was directed to collect a sum of Rs. 48,000/- sent by the said Mohamed Kutty of Abudhabi and that the aforesaid amount of Rs. 48,000/- stands denoted in a code "48 Para " and that the code para has been admitted by you for being used as a code word. In the said letter Khalid was also informed to contact you for collecting the aforesaid amount. Since Khalid is out of India he could not be interrogated in the matter. "
( 3 ) IN his representation dated Feb. 22, 1985 the detenu stated that basic documents were not among the papers supplied to him and, therefore, the order of detention was illegal as he had been prevented from making an effective representation. It was submitted that he, therefore, be released. He further pleaded that "in case I cannot be released for reasons known to you only, I may be given the following basic documents mentioned in the grounds of detention immediately to enable me to make an effective representation against my illegal detention. " Thereafter he enumerated various documents given in sub-paras (1) to (8) of his representation. The first item relates to the eleven documents which were stated to have been seized from the house of Khalid Haji on Sept. 26, 1984. It may be noted here that in the list of documents reli
