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2005 DIGILAW 1199 (MAD)

Hassan Banu v. State of Tamil Nadu & Others

2005-07-28

M.KARPAGAVINAYAGAM, S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of habeas corpus, calling for the records of the first respondent made in GO.SR/9-5/2005 Public (SC) Department dated 12.01.2005, quash the same and to produce the detenu Abdul Gulam Azad, son of Kader Hussain, before this Court, set him at liberty, now detained in Central Prison, Chennai, under Conservative of Foreign Exchange and Preventive of Smuggling Activities Act.) M. Karpagavinayagam, J. The order of detention-dated 12.01.2005 is sought to be quashed by the wife of the detenu in this Habeas Corpus Petition. 2. We have heard learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents 1 and 3 and the learned Additional Central Government Standing Counsel for the second respondent. 3. Mr.B.Kumar, learned Senior Counsel appearing on behalf of the petitioner would mainly urge that the order of detention is liable to be quashed on the ground that there has been no proper communication of the grounds to enable him to make an effective representation. 4. On this ground, we have heard learned Additional Public Prosecutor. 5. It is not in dispute that the order of detention has been passed on 12.01.2005. In the detention order, it has been referred that the detenu is already involved in four previous customs offences. On receipt of the communication and other documents, a representation on behalf of the detenu was sent on 30.12.2004, requesting supply of the copy relating to the previous offences which were referred to in the detention order dated 12.01.2005. By reply dated 01.03.2005, it was intimated to the detenu that the details of the previous offences were referred to only to indicate that the detenu had indulged in smuggling activities in the past and since the documents relate to his previous offences, the same were not relied upon for passing the detention order, and the question of copy of the same does not arise. 6. In the counter filed by the first respondent, it is specifically stated in paragraph 6 as follows: " ... The details of his previous offences were shown only to prove that he is a habitual offender. The present detention has been ordered in respect of the offence committed by him. 6. In the counter filed by the first respondent, it is specifically stated in paragraph 6 as follows: " ... The details of his previous offences were shown only to prove that he is a habitual offender. The present detention has been ordered in respect of the offence committed by him. As regards the averments of the petitioner that the details of the previous cases were not furnished to him, it is respectfully submitted that the representation referred to in paragraph 9 of the affidavit was examined and a reply was sent to the detenu in Government letter dated 01.03.2005 informing that the details of previous offences were referred to only to indicate that the detenu is a habitual offender and that the same have not been relied upon for his detention in the present case and hence, the question of furnishing the details of the previous cases requested in the said representation does not arise." 7. A clear stand is taken consistently by the respondents that even though a representation seeking for supply of copies about the four previous customs offences, they had not chosen to supply those copies on the ground that those documents were not relied upon. 8. On a perusal of the grounds of detention, the letter dated 01.03.2005 and paragraph 6 of the counter, it is clear that these documents were taken into consideration by the Detaining Authority and a conclusion was arrived at that since the detenu was indulging in smuggling activities in the past four customs offences, he was to be considered as a habitual offender. Even though such a finding was arrived at on a consideration of those documents, the stand taken by the respondents that those documents have not been relied upon and therefore, the detenu is not entitled to the same is strange and the same is not acceptable. 9. Learned counsel for the petitioner relied upon the decision of the Supreme Court reported in 1991 Supreme Court Cases (Crl.) 88, (KAMARUNNISSA v. UNION OF INDIA AND ANOTHER), wherein the Supreme Court while dealing with the same issue, would make the following observations: " ... 9. Learned counsel for the petitioner relied upon the decision of the Supreme Court reported in 1991 Supreme Court Cases (Crl.) 88, (KAMARUNNISSA v. UNION OF INDIA AND ANOTHER), wherein the Supreme Court while dealing with the same issue, would make the following observations: " ... that the settled legal position was that all the documents relied upon for the purpose of ordering detention ought to be supplied pari passu with the grounds of detention to the detenu and documents not relied upon but casually referred to for the purpose of narration of facts were also to be supplied to the detenu if demanded." ".... If, merely an incidental reference is made to some part of the investigation concerning a co-accused in the grounds of detention which has no relevance to thecase set up against the detenus it is difficult to understand how the detenus could contend that they were denied the right to make an effective representation. Demand of any or every document, however irrelevant it may be for the concerned detenu, merely on the ground that there is a reference thereto in the grounds of detention, cannot vitiate an otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant if may be". 10. So, the above observations made would make it clear that the relied upon documents shall be furnished irrespective of the fact whether prejudice is caused or not, but however, when the other documents which has been referred to and taken into consideration, even if it is not furnished shall be furnished once it is demanded. 11. In this case, as indicated above, the documents relating to the four previous customs offences were not only referred to in the grounds of detention and according to the counter and the reply, the same was taken into consideration to indicate that the detenu is a habitual offender, which also was one of the factors to arrive at the conclusion that detention order is passed as against him. Thus, it is clear that by not furnishing the documents relied on, despite the demand, would deprive the right of the detenu to make an effective representation in the light of those documents. Therefore, we are of the view that the order of detention suffers from the above said infirmity. 12. Accordingly, the impugned order of detention is set aside. The Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case.