S ABDUL CADER Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition the order of detention issued on 3rd of August 1984 as well as the continued detention of the detenu Shri S.M.A. Hidayatullah alias Haider is challenged on various grounds. However, it is not necessary to make a detailed reference to the various contentions raised in this petition, since in our view the detenu is entitled to be released on a short ground that a copy of material and vital document referred to and relied upon by the detaining authority in the grounds of detention was not supplied to the detenu, which was. obviously violative of article 22 (5) of the Constitution of India.

(2.) In this context it is pertinent to note that in para 11 of the grounds of detention a reference is made by the detaining authority to a chit seized from one Mohamed Ramees. Para 11 of the grounds of detention reads as under 11. Act on the information, the office of MIs. Vikram, Exports & Allied Agencies and MIs Kashyap Chemical Industries were searched under section 37 of Foreign, Exchange, Regulation act, 1973 on 14th, February 1984, M/s. Kashyap Chemical Industries were also searched because it is situated in the same premises of M/s. Vikram Exports & Allied Agencies and Himmatlal S. Javeri is looking after the affairs of both the concerns. As a result of the said search certain documents were seized from the office of .M/s Vikram Exports &-Allied Exports. During the course of search of M/s Vikram Exports & Allied Agencies one person aged about 25 years came to the place of search with a plastic bag. When questioned by the officers about the purpose of his visit and contents of the plastic bag he stated to the officers on the spot that the bag contained Indian currency of Rs. 2 lakhs were sent by you staying at 32/34, Bombay Chambers, 1st Manne Street, Bombay 2. The person also gave his name as Mohamed Ramees. He also stated that the said amount of Rs. 2 lakhs were sent for delivery to Himatlal S. Jhaveri of M/s. Kashyap Chemicals Industries as payments as per the instructions from abroad. Thereafter as the officers searched the person of the said Mohamed Ramees in the presence of panchas. As a result of the said search a small chit containing the address of M/s. Kashyap Chemical Industries was recovered and seized from his shirt-pocket by the officers of the Bombay office and from the plastic bag Rs. 2 lakhs were recovered and seized. Immediately your premises at Bombay Chambers were searched by the officers of the Enforcement Directorate, Bombay Zone on 14th February, 1984 but nothing was seized. Thereafter in para 14 again a reference is made to this chit wherein it is stated that Mohamed Ramees has stated that the seized chit was given to him by the detenu for identifying the shop. In para 5 sub-para (vi) of the petition, averments in this are made on the following terms: The petitioner submits that the detenu had given any sum of money to Mohamed Ramees for paying the said amount to Himmatlal S. Jhaveri. The petitioner denies that the chit containing the address of M/s. Kashyap Chemical Industries which was allegedly recovered from the shirt pocket of the said Mohamed Ramees bears the detenus handwriting and that it was given by him to Mohamed Ramees. The Petitioner says and submits that no effort whatsoever has been made by the sponsoring authorities to get the handwriting expertTs opinion as to whose handwriting the said chit bears. The petitioner says and submits that the said chit having been referred to and relied upon by the detaining authority and the same in any case having influenced the mind of the detaining authority, a copy of the said chit ought to have been furnished to the detenu. The petitioner says and submits that not only a copy of the said chit was not furnished to the detenu along with the grounds of detention but the same has not been furnished to the detenu even till this date. The copy of the said chit not having been furnished to the detenu, it is violative of both the facets of Article 22 (5) of the Constitution of India, in asmuchas the said document being a part and parcel of the grounds of detention; the grounds of detention, in law, cannot be said to have been communicated to the detenu at all. The non-supply of a copy of the said chit has also disabled the detenu from making an effective representation. The impugned order of detention is thus malafide, null and void. This is what the detaining authority has to say about these allegations: 7. As regards para 5 (vi) of the petition I submit that the petitioner admitted that he had given money to Mohamed Ramees for paying the said amount to Himatlal S. Jhaveri. I also say that the detenu in his statement recorded under Sec. 40 of the Foreign Exchange Regulation Act admitted that the chit is in his handwriting and as such there was no question of obtaining any expert opinion. I say that I had seen a copy of the chit which is mentioned in the order while narrating, the grounds of detention clarifying as to what the said chit contained. I say that the chit contained only address and the said fact is mentioned in the ground. I, therefore, say that if is wrong to contend that non-supply of the slid chit disabled the petitioner in making any effective representation, alleged.

(3.) Therefore, if the grounds of detention are read together and are considered with the averments made in the affidavit in reply referred to hereinbefore, then a conclusion is inevitable that contents of the chit were referred to and relied upon by the detaining authority for passing the impugned order of detention. Once it is held that the detaining authority was influenced by the contents of this chit and the chit was referred to and relied upon in the grounds of detention, then we have no other alternative but to hold that the order of detention as well as the continued detention of the detenu is vitiated, since admittedly the copy of the said material and vital document was not supplied to the detenu.