KAMALA DEVI KEDIA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Art. 226 of the Constitution challenging the order of detention of the detenu passed in exercise by the power conferred by S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended). The applicant/petitioner who is the wife of the detenu has filed this petition on behalf of the detenu. The order of detention was passed by the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue on the 25th May, 1998. The said order of detention was executed against the detenu on the 29th June, 1998 and since then he is in detention in the Presidency Jail, Calcutta. The detention, as the order purportingly announced, was considered necessary with a view to preventing the detenu in future from acting in any manner prejudicial to the augmentation of foreign exchange. While in detention the petitioner sent two representations dated 13-7-1998 against his detention, one addressed to the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue (the detaining authority) and the other to the Secretary to the Govt. of India, Ministry of Finance, Department of Revenue praying for revocation of the order of detention. Both the representations were however rejected.

(2.) It is submitted before us on behalf of the petitioner at the time of hearing that the allegation against the detenu is that he is an abettor, but the principal offender in this case has already been released by the Advisory Board on ground of lack of sufficient reasons to justify detention. All that we need say in this connection is that the fact that the principal offender has been released is by itself no reason to release the detenu alsoand this is also conceded by the learned Advocate for the petitioner.

(3.) In the first branch of his submission the learned Advocate for the petitioner highlights that some of the documents supplied to the detenu were in a language not understood by the detenu and some documents were truncated documents while some documents were illegible and some documents relied upon by the detaining authority were not supplied to the detenu at all. The other branch of his attack is that there was unexplained delay on the part of the concerned authorities in disposing of the representations he made against his detention. As regards the illegible documents supplied to the detenu the learned Advocate for the petitioner generally attracts our attention to para 24 of the writ petition wherein documents stated to be illegible as well as documents in which portions were blackened have been referred to. The learned Advocate for the petitioner however attracts our particular attention in this connection to the documents which are the last four pages of Volume II and pages 806, 807 and 835 to 838 of the Volume III of the paper book. Our attention has also been drawn to the documents at pages 896, 909 and 1076 of Volume IV of the paper book some portions of which are blackened. On perusal of those documents stated to be illegible or blackened we find that while some portions of those documents are readable some portions are however not readable. The learned Advocate for the petitioner refers to the Division Bench decision of this Court in Tapas Chowdhury v. Union of India, 1996 Cri LJ 579 as well as the decisions of the Supreme Court referred to therein support of his contention that non-supply of legible copies of documents or for that matter supply of illegible copies of documents relied upon by the detaining authority makes the detention order bad. There is no doubt that the law is settled that supply of illegible copies of documents relied upon by the detaining authority in passing the detention order virtually amounts to non-supply of such documents which vitiates the detention (Tapas Chowdhury v. Union of India (1996 Cri LJ 579) (supra). In paragraph 25 of the affidavit-in-opposition it is however stated by the respondents that the detenu has been provided fully legible copies of relied upon documents excepting for a few documents which were submitted by the detenu and others in not fully legible condition though the relevant contents thereof could be deciphered. As regards the blackened portions of certain documents, in paragraph 25 of the affidavit-in-opposition it is stated that those documents can be read and understood without difficulty about their nature, essential contents and purpose and therefore the detaining authority could easily apply its mind on those documents as well. So in paragraph 25 of the affidavit-in-opposition it is acknowledged by the respondents that some of the supplied documents contain illegible portions and blackened portions. It is not the only question whether the detaining authority could apply his mind in the matter by going through the legible portions and ignoring the illegible portions of particular documents, but the further question also remains as to whether the supply of illegible documents prevented the detenu from making effective representation in the matter. If no indication has been given to the detenu in the grounds of detention that the detaining authority while considering the concerned documents only relied upon the legible portions of the concerned documents ignoring the illegible portions, it may not be possible for the detenu to understand that the detaining authority took into consideration only the legible portions ignoring the illegible portions of the documents supplied to him, and if he cannot understand so, he may be reasonably expecting that in passing the detention order the detaining authority has taken into consideration the whole of the concerned documents including the portions which are appearing illegible in the documents supplied to him, and in such a situation it is quite likely that he might have been prejudiced in making his representation in the matter. In the present case it has not been indicated to the detenu that the legible portions of the documents were only taken into consideration by the detaining authority or were sufficient for the detaining authority to form his opinion in the matter. Nor has it has also specifically shown before us at the time of hearing that the detaining authority only took into consideration while passing the detention order such portions of the concerned documents which are legible ignoring such portions which are appearing as illegible in the documents supplied to the detenu. That being so, in view of the judicial pronouncements holding the field, we have to hold that supply of illegible documents virtually amounts to non-supply of relevant documents which vitiates the detention.