JAGJIT PAL SINGH ANAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Joint Secretary to the Govt. of India, Ministry of Finance (Department of Revenue by order dated 7th November 1989 passed in exercise of the powers conferred by section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 directed the detention of the petitioner with a view to preventing him from dealing in smuggled goods otherwise than by engaging in concealing, keeping and transporting smuggled goods. Alongwith the grounds of detention the detenu supplied with the relied upon documents mentioned in the list enclosed with the grounds of detention. The order of detention and the continued detention of the petitioner is under challenge in this petition.

(2.) LEARNED counsel for the petitioner submits that the order of detention and continued detention of the petitioner is illegal as some of the documents on which the detaining authority relied over in passing the order of detention were not legible documents and as such there was no proper and effective communication of the order of detention which includes not only the grounds of detention but also the documents relied upon by the detaining authority in making the order of detention. The documents said to be illegible are mentioned in Para 12 of the writ petition. In Para 17 of the petition the detenu has pleaded that he requested the detaining authority to supply legible copies of the documents as mentioned in Para 12 of the petition but the same have not been supplied in spite of the request. Counsel submits that non-supply of legible documents tant amounts to non-supply of the relied upon documents which makes the detention illegal and violative of Article 22(5) of the Constitution. The writ petition was filed on 13th December 1989. From the counter affidavit filed by Sh. A.K. Batabayal, joint Secretary to the Government of India, Ministry of Finance, Department of Revenue it appears that the legible copies of the documents complained of were supplied to the detenu on 5th January 1990. Shri Batabayal has also deposed that the detenu was given legible copies of the documents but in pursuance of his representation dated 28th November 1989 the legible copies of the asked for documents were again given to the detenu on 15th January 1990. There is also no dispute about the fact that the meeting of the Advisory Board was fixed for 9th January 1990. The 6th and 7th January 1990 were holidays being Saturday and Sunday.

(3.) IT is well settled that the order of detention as also the grounds of detention and the documents relied on by the detaining authority in reaching subjective satisfaction have to be supplied to the detenu ordinarily within 5 days of the passing of the order of detention or in exceptional circumstances within 15 days the passing of order of detention. There can be no proper communication of the order of detention if some of the documents accompanying the order of detention that are supplied to the detenu are not legible. It will amount to non supply of those documents. In the grounds of detention the detaining authority has stated that he had relied upon the documents mentioned in the enclosed list. Ordinarily the non supply of legible copies of the relied upon documents within 15 days of the passing of the order of detention will vitiate the order of detention as there will be no communication to the detenu as required by section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It is the obligation of the detaining authority to ensure that legible copies of relied upon documents are supplied to the detenu. In the present case the detenu made a representation dated 21st November 1989 and made a grievance about the supply of illegible documents and requested for supply of legible copies of documents so that he could make an effective and purposeful representation. The legible copies of documents were, however, supplied as late as on 5th January 1990 which can hardly be considered as reasonable time for preparation of the legible copies of the documents. The next two days, namely, 6th and 7th January 1990 being holidays, on the facts and circumstances of the case there is hardly reasonable time available to the detenu to prepare his case for presentation before the Advisory Board which met on 9th January 1990.