MAZAHIR ABBAS v. UNION OF INDIA — 1994 DIGILAW 807 (DEL)

Arun Kumar, J. ( 1 ) THIS writ petition challenges the detention of the petitioner Mazahir , Abbas. The detenu was detained on 7th June 1994 in pursuance of a detention order made under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act bearing F. No. 673/4/94- Cus. VIII dated 2nd February 1994. In fact according to the petitioner he had surrendered on 7th June 1994 in the Court of Addl. Chief Metropolitan Magistrate, New Delhi. On 10th June 1994, the detenu was served with the grounds of detention alongwith the Relied on upon documents as per list. Besides the detenu was served with English translation of 13 documents running into 42 pages which were in Hindi, a language not known to the detenu. ( 2 ) THE allegations against the petitioner are:- (i) That on 12. 12. 1993, one Shri Pritam Singh, while leaving for Singapore was intercepted at the I. C. I. Airport, New Delhi, on search of whose brief case, U. S. $ 1,27,500 equivalent to Rs-39. 33 lacs were found concealed; (ii) That in his statement the said Pritam Singh stated that the said brief case was given to him by the detenu and that he was working at the detenu s shop, Riz-ven Footwear for the last 3 years; and (iii) That the said Shri Pritam Singh retracted his above statement arid filed a criminal complaint on 13. 1. 1994 against some customs officers making serious grievance of physical torture and inflicting grievous injuries, in extracting involuntary and untrue statement, which complaint was for offences under sections 323/. 325/34 and 330/506/409/217/219 and 120b of the Indian Penal Code. ( 3 ) IT appears that the detaining authority proceeded on the basis that Pritam Singh was working at the shop of the petitioner for the last three years and as a result of employer-employee relationship, was asked to carry a brief case containing foreign currency to Singapore. The impugned order dated 2nd February 1994 says "with a view to preventing him from abetting smuggling of goods in future it is necessary to make the following order: xx xx xx". Thus the petitioner has been detained for allegedly abetting smuggling of contraband items. ( 4 ) THE present writ petition was filed on 14th June 1,994 challenging the said detention order. Some of the grounds of challenge are as under:- 1. Thus the petitioner has been detained for allegedly abetting smuggling of contraband items. ( 4 ) THE present writ petition was filed on 14th June 1,994 challenging the said detention order. Some of the grounds of challenge are as under:- 1. Inordinate delay in execution of the detention order. 2. No fresh application of mind on the part of the detaining authority at the time of belated execution of the detention order. 3. Non-application of mind qua conclusions arrived at by the detaining authority in para 15 of the grounds of detention. The conclusions are without any material. 4. Delay and improper consideration of detenu s representations to various authorities. 5. Reliance placed on irrelevant material in arriving at the subjective satisfaction to detain the petitioner. . 6. Non-placement and non-consideration of vital and relevant material which vitiates the subjective satisfaction of the detaining authority. 7. Non-supply of legible copy of Relied on upon documents alongwith grounds of detention. and subsequently even after request. . ( 5 ) OUT of the aforesaid grounds the ground mentioned last was taken up first for consideration. After hearing counsel for the parties I am of the view that the writ petition is liable to succeed on this ground alone and, therefore, I need not go into the. other grounds. It is settled law that alongwith the grounds of detention the detenu has to be supplied with copies of the Relied on upon documents. This right enshued in artcle 22 of the Constitution of India and is a fundamental right. Copie of documents to be supplied has been held to mean legible copies of the documents and in a language which the detenu understands. The learned counsel for the petitioner in this behalf is that in the compilation of Relied on upon documents supplied to the detenu two documents at pages 128 and 146 are illegible. These documents contain ane endorsement that typed copy attached . However, the petitioner submits that typed copydocument at page 128 was supplied but no typed copy of document at page 146 was supplied. Photo copies of documents at page 128 and 146 have been placed on record. A bare look at these documents is enough to conclude that they are totally illegible. However, the petitioner submits that typed copydocument at page 128 was supplied but no typed copy of document at page 146 was supplied. Photo copies of documents at page 128 and 146 have been placed on record. A bare look at these documents is enough to conclude that they are totally illegible. However, as a typed copy of the document at page 128 was supplied to the petitioner, the contention is really based on the document at page 146. Learned counsel for the peti- ioner during the course of hearing showed him the copy of document at page 146 as original supplied to the detenu which confirms my view that it is totally illegible. The petitioner also made a representation against the impugned detention order on 16th July 1994 in which the grievance about lion-supply of legible copies of document at page 128 and 146 of the compilation was made. It was also stated that though typed copy of document. it page 128 had been supplied yet no typed copy of document at page 146 had been supplied. In para 13 of the said representation the detenu clearly mention that non-communication of Relied on upon documents renders the detention order void ab initio. Still he requested for the supply of the said documents. Said representation was replied to vide letter dated 1st August 1994 received by the detenu on 6th August 1994 in which at the end it is stated as under.- besides the sponsoring authority has been directed to supply typed copies of pages 128 and 146 of thv documents, if not already supplied to him. In the counter affidavit filed on behalf of the respondents on 24. 8. 1994, though it bears the date 28th July 1994. Reply to para 12 of the writ petition is as follows:- "with reference to para 12, a typed copy of the document at page 146 was duly supplied and received by thv detenu. Acopy of such typed copy, duly acknowledged, is annexed and marked asannx. R-1". However, with the counter annexure R-l was not filed. During the course of hearing the counsel for the respondent from his record showed an index of the Relied on upon documents which is alleged to. contains an endorsement of the petitioner of having received. all the Relied on upon documents. R-1". However, with the counter annexure R-l was not filed. During the course of hearing the counsel for the respondent from his record showed an index of the Relied on upon documents which is alleged to. contains an endorsement of the petitioner of having received. all the Relied on upon documents. It is to be noted that the detention-order amd the documents were served on the petitioner while he was in custody in the Central jail. The endorsement regarding the receipt of documents is contained on the index page only and it runs as under-; "crl. W. P. 468 of 11994 Received 1 to 184 pages of Iegible and clear Photostate copy of Relied upon Dpcuments as per Index (2 pages) along with true copy of page No. 128 and I to 42 pages of English. Translation of Relied upon Documents as per Index (1page ). I have gone through all the pages and they are clearly readable. sd/- Mazahirabbas Served before me today i. e. 10. 6. 94 sd/- 10/6/94 Dy. Supdt. Central Jail, Tihar, N. Delhi. The endorsement reveals a few things (a)it is not in the handwriting of the petitioner; (b) the petitioner disputes his signatures on it; (c) the language of the endorsement shows that every effort has been made to bind the petitioner from all possible angles. (d) while about page 128 true copy is mentioned as alongwith, nothing has been mentioned about page 146. It is the document at page 146 which is in question and even this endorsement does not help the respondents. Rather mention of page 128 and its copy leads to an inference that copy of other document at page 146 was not supplied. Further the plea of the respondent in the counter affidavit which has been quoted hereinbefore shows that the same is vague and without any particulars. Even the date of supply of the documents is not mentioned. The annexure mentioned in the para was never filed. ( 7 ) LEARNED counsel for the respondent has strongly Relied on on the rejoinder affidavit filed on behalf of the petitioner in which in reply to para 12 of the counter it has been stated that the grievance does not survive. It is submitted that in view of this clear admission the argument regarding nonsupply of legible copies is not open to the petitioner. The rejoinder is dated 5. 8. It is submitted that in view of this clear admission the argument regarding nonsupply of legible copies is not open to the petitioner. The rejoinder is dated 5. 8. 1994 and its copy was supplied to the counsel for the respondent on the same date as per endorsement on the first page of the rejoinder. The. letter of the respondents dated 1. 8. 1994 referred to hereinbefore in which they said that the copy will be supplied if not already supplied. was also received by the petitioner on 5. 8. 1994. Statement in para 12 of he rejoinder on behalf of the petitioner that the grievance does not survive is of no consequance. ( 8 ) IN background of all the facts detailed hereinbefore, I do not think that the petitioners can be non-suited merely on the basis of the said averments in the rejoinder affidavit. The petitioner made this grievance in the writ petition and thereafter in the representation dated 16th July 1994. This shows that at least till then the typed copy of the document in question had not been supplied to him. Even if I assume for the sake of arguments that it was supplied subsequently, it does not absolve the respondents of their responsibility to supply legible copies of documents Relied on upon alongwith the detention order. Ofcourse on the basis of material on record I doubt that the typed copy of the document was ever supplied to the petitioner. A Division Bench of this court in Anil Sanan vs. Union of india and Ors. , 1992 JCC 92 has gone to the extent of holding that non-supply of a document, though not Relied on upon by the detaining authority, yet available to it for which it does not claim any secrecy or privilege, should also. be supplied to a detenu on demand in order to enable him to make an effective representation against the detention order. Here is a case in which a legible copy of Relied on upon document was not furnished to the detenu. The detenu was, therefore, deprived of his right to make a representation. This is violation of the rights of a detenu enshrined in Article 22 of the Constitution of India which cannot be condoned. ( 9 ) THE result is that the petition succeeds. Rule is made absolute. Impugned detention order No. F. No. 673/4/94-Cus. The detenu was, therefore, deprived of his right to make a representation. This is violation of the rights of a detenu enshrined in Article 22 of the Constitution of India which cannot be condoned. ( 9 ) THE result is that the petition succeeds. Rule is made absolute. Impugned detention order No. F. No. 673/4/94-Cus. VIII, dated 2nd February 1994 is quashed and if is further ordered that the petitioner be set at liberty forthwith unless required to bedetained in connection with any other matter.