2011 (12) TMI 538 - HC - Customs

Summary

Issues Involved:
1. Non-supply of relied upon documents.
2. Determination of the detaining authority.

Summary:

Non-supply of relied upon documents:

The detention order dated 08.09.2011 against the detenu was challenged on the grounds that the detenu was not supplied with the relied upon documents meant for him. Instead, documents related to his father were provided. This was argued to be a violation of the procedural safeguard of supplying relied upon documents pari passu the execution of the detention order. The respondents contended that the documents for both the detenu and his father were identical, and thus no prejudice was caused. However, the court emphasized that the detenu, being in jail, could not presume the documents were identical and that the constitutional mandate under Article 22(5) of the Constitution was violated, rendering the detention order void ab initio. The court relied on the Supreme Court's decision in M. Ahamedkutty v. Union of India and Another: 1990 (2) SCC 1, which held that failure to furnish relied upon documents amounts to denial of the right to make an effective representation.

Determination of the detaining authority:

The detention order was issued by the respondent No.2, Rasheda Hussain, Additional Secretary to the Government of India. However, the grounds of detention indicated that representations should be addressed to the Joint Secretary (COFEPOSA). The petitioner argued that this created confusion and that the representation should be considered by the detaining authority who issued the order. The respondents contended that since Rasheda Hussain had been transferred, the Joint Secretary (COFEPOSA) would take her place. The court noted the serious concerns raised but did not conclusively address this issue due to the decision on the non-supply of documents.

Conclusion:

The court quashed the impugned detention order and directed the immediate release of the detenu, citing the violation of the constitutional mandate due to the non-supply of relied upon documents.