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1994 DIGILAW 106 (BOM)

Halima Noor Mohd. Gandhi v. State of Maharashtra

1994-03-03

ASHOK AGARWAL, D.K.TRIVEDI

body1994
JUDGMENT D.K. Trivedi, J. - The present petition is filed by the mother of the detenu challenging the order passed by the respondent No.2 viz., Shri C.D. Singh, Secretary to the Government of Maharashtra (preventive Detention), Home Department (Special) dated 5.11.1993 wherein the said order of detention was passed under Sub-section (1) of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988). The grounds of detention dated 5.11.1993 were also duly furnished along with the order of detention to the detenu and the said order and grounds of detention were served on the detenu on 6.11.1993. By virtue of the committal order passed by the respondent No.2, the detenu was kept under detention. Respondent No.2 had while passing the impugned order dated 5.11.1993 had taken into consideration the material placed before him and while arriving at satisfaction he had considered the said material and also the statement of the detenu recorded by the authority. The Detaining Authority had recorded the satisfaction from the material and while reaching the said satisfaction, the detaining Authority had observed as under: "To establish your involvement in drug trafficking, some time was taken to get details from the various authorities but in view of the above, it is clear that you have been repeatedly involved in illicit traffic of Narcotic drugs and. psychotropic substances it is necessary to detain you under the P.I.T.N.D.P.S. Act, 1988, with a view to prevent you from engaging in such activities in future. 2. The petitioner while challenging the order of detention passed against her son has moved this Court by way of filing petition and prayed for issuance of writ of Habeas Corpus or any other appropriate writ, order or direction quashing or setting aside the impugned order of detention bearing No. SPL 3(A)/PND/0193/11 dated 5.11.1993 issued by Shri C.D. Singh, the Secretary to the Government of Maharashtra (Preventive Detention) Home Department (Special), Mantralaya, Bombay 400 032 and prayed for releasing the detenu from detention forthwith. 3. 3. While entertaining the said writ petition at the time of admission as per earlier order dated 6.12.1993 the rule was made returnable after eight weeks and thereafter after the service of the rules on the respondents the affidavit in reply was filed by the Detaining Authority as well as the affidavit of Desk Officer attached to Home Department (Special), Mantralaya was also filed. The affidavit of Detaining Authority was also sworn in by Shri M.F. Rathod, Deputy Secretary to the Government of Maharashtra, Home Department and accordingly the matter was notified for hearing. 4. After hearing the respective Counsel for the parties, this petition is required to be allowed only on one ground and accordingly we are not required to deal with the other contentions raised by the learned Counsel for the petitioner. 5. The learned Counsel appearing on behalf of the petitioner had submitted that the impugned order of detention is required to be set aside as the Detaining Authority had not applied his mind while passing the impugned order of detention. It is the contents of the learned Counsel for the petitioner that certain material which was relied upon by the Detaining Authority were not legible and accordingly the detenu could not make effective representation and prayed that the order of detention is accordingly required to be set aside. 6. To appreciate the contention of the petitioner which the petitioner had contended in ground (vi) of the petition which reads as under: “(vi) of the petitioner says and submits that the documents at pages 2, 12, 31, 55, 63, 89, 95, 122,128, 130, 134, 142, 143, 155, 157, 158, 159, 160, 161, 163 to 165, 170 to 173, 183 to 186, 192, 212, 217, 224, 227, 230, 231, 254, 255 to 257, 261, 262 and 264 which are furnished to the detenu are illegible. The petitioner says and submits that furnishing such illegible copies in the eye of law, amounts to non-furnishing such copies at all. The petitioner says and submits that the documents being part and parcel of the grounds, furnishing such illegible copies amounts to non-furnishing the grounds of detention themselves. The impugned order of detention is thus violative of both the facets of Article 22 (5) of the Constitution and it is mala fide and abinitio null and void." 7. The petitioner says and submits that the documents being part and parcel of the grounds, furnishing such illegible copies amounts to non-furnishing the grounds of detention themselves. The impugned order of detention is thus violative of both the facets of Article 22 (5) of the Constitution and it is mala fide and abinitio null and void." 7. In reply to the averments made by the petitioner, an affidavit was filed by Shri M.F. Rathod, Deputy Secretary to the Government of Maharashtra Paragraph 11 of the said affidavit reads as under: "1. With reference to paras 4 (iv) and 4 (vii) of the petition, I deny the petitioner's allegation that documents at pages mentioned in the said para are illegible. I say that the documents were also furnished to the detenu at the time of filing of complaint against him. The detenu himself acknowledge ledged the receipt of the said documents on 4.6.1993. However, no complaint whatsoever has been received from the detenu or on behalf of the detenu about illegibility of the said documents. For the first time in this petition, petitioner is making the said allegation. I deny said allegations. I say that all these documents are legible and readable and, therefore, detenu was not prevented from making effective representation against his detention. I, therefore, deny the petitioner's allegations made in the said paras." 8. The learned Additional Public Prosecutor had while contending before us had submitted that in view of the affidavit in reply filed by Shri Rathod, the contention raised by the petitioner does not survive. 9. To appreciate the rival contention raised, we ourselves had perused the said documents referred in the ground (vi) by the petitioner and prima facie, our view is also that what the learned Counsel appearing on behalf of the petitioner is justified in saying so atleast some of the documents are not at all legible - If some of the documents are not legible then certainly it affects the right of the detenu while making representation against the order of detention. The reply filed on behalf of the Detaining Authority had first of all denied the allegation that the queries mentioned in the said paragraph are illegible. The reply filed on behalf of the Detaining Authority had first of all denied the allegation that the queries mentioned in the said paragraph are illegible. Further, Shri Rathod has averred that even these documents were also furnished to the detenu at the time of filing the complaint against him and further that the detenu himself acknowledged the receipt of the said documents on 4.6.1993. However, no complaint whatsoever has been received from the detenu or on behalf of the detenu about the illegibility of the said documents. Accordingly, it is the say on behalf of the Detaining Authority that the documents supplied to the detenu were legible at the time of serving of the order of detention and material and further even earlier while filing complaint against the detenu these documents were furnished to the detenu in the month of June 1993 and further at no point of time no complaint was made with regard to these documents. So far as furnishing of documents in the month of June 1993 is irrelevant as the present order of detention was passed by the Detaining Authority on 5.11.1993 and while serving grounds of detention and other material, the detenu was served with these documents and according to the petitioner the documents mentioned in ground (vi) are illegible documents and, therefore, the detenu could not make effective representation before the authority. As stated earlier we ourselves had also perused the said documents and on perusal of those documents prima facie we are also satisfied that some of the documents supplied to the detenu are not at all legible. It is also to be noted that the detenu can make representation only when those documents are supplied therein and non-supply of some of the legible documents certainly affect the right of the detenu for making effective representation to the authority against the order of detention. According to the Detaining Authority, earlier in the month of June, 1993 these documents were furnished at the time of filing complaint will not absolve the duty of the Detaining Authority to furnish the material which were relied upon by the Detaining Authority while passing the impugned order and accordingly when the order of detention was passed on the detenu on 5.11.1993 the Detaining Authority was required to furnish legible documents to the detenu. Even in the grounds of detention as well as the list of documents furnished to the detenu there is no mention by the Detaining Authority that these documents were earlier furnished at the time of filing complaint in June, 1993 and, therefore, we have no hesitation in accepting the contention of the petitioner that the Detaining Authority had not supplied some of the legible documents referred to in the ground (vi) of the petition and the effect is that by non-supply of legible documents, the right of the detenu to make an effective representation as provided under Article 22 (5) of the Constitution of India is adversely affected and the order of detention is required to be set aside. 10. Hence, the order of detention is set aside and the detenu be released forthwith if she is not required to be detained in any other matter. Rule absolute. Petition allowed.