VINOD KUMAR SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petitioner was detained persuant to his detention order dated 14th January, 1987 passed by the Administrator, Union Territory of Delhi under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activites Act of 19/4. The detention order was passed with a view to prevent the petitioner from engaging in transporting, concealing and keeping smuggled goods and also in dealing with foreign marked gold. The order of detention followed an incident dated 21st November, 1986 when the petitioner was caught in the process of smuggling of foreign marked gold. The petitioner was arrested on the same day according to though according to the respondents, the petitioner was arrested on 23rd November, 1986 and then remanded to judicial custody. Thereafter he was repeatedly remanded to judicial custody and ultimately he was sent to judicial lock up till 19th January, 1987. The petitioner bad not applied for bail. It is admitted that on the day when the order of detention was passed the detenu Was in judicial custody. The detention order was served on him in jail on 17th January, 1987.

(2.) Mr. Sharma while arguing on behalf of the petitioner has urged before me that for purpose of Article 22(5) of the Constitution of India he (is entitled to receive the grounds of detention together with all other documents ' within five days of his detention and at the most within 15 days from the date of detention and that this is necessary to enable him to exercise his right of miking effectiveland purposeful repersentation to the authorities concerned. He has taken me through the documents which were supplied to him. As in the other two Criminal Writ Petition Nos. 195 of 1987 and 205 of 1987 decided on 31st August, 1987 the documents supplied to the detenu in the persent case are also mostly illegible Those two writ petitions were in fact allowed on this very ground the grounds and documents are supplied to the detenu with the solitary object of enabling him to make an effective representation against his detention. This is a constitutional right and it is the duty of the detaining authority to make it possible for the detenu to make a purposeful representation. In the absence of legible set of documents it is obvious that the detenu would be unable to know as to the material which resulted in the satisfaction of the detaining authority and thereby be will be deprived of making an effective and purposeful representation. Consequently, be will be deprived of his fundamental right under Article- 22(5) of the Constitution of India.

(3.) In the preseat case there has been a total failure on the part of the detaining authority to supply to the detenu legible copies of the documents which the detaining authority was duty bound to supply him within five days and at the most within 15 days from the date of detention. On this ground the petition is accordingly allowed. The detention order stands vitiated is quashed. The detenu shall be released forthwith unless required in some other case. Petition allowed. 364 page 354. There should be dispute and there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds. Mere failure or inaction to pay does not lead to the inference of the existence of dispute. Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request. When in a particular case a dispute has arisen or not has to be found out from the facts and circumstances of the case.