P MOIDU HAJI Vs. UNION OF INDIA

JUDGEMENT

(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:

(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 relied upon items 19 and 20 relate to the said search of Sept. 26, 1984. Those items read as follows :