2008 (11) TMI 695 - SC - Indian Laws

Detention order passed u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Whether the detenue s right to make a representation against the order of detention, is hampered by non-supply of the particular document? HELD THAT - As rightly contended by ld counsel for the State the documents were read over and an endorsement to that effect has been made by the detenu. While examining whether non supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced. The High Court has lost sight of the relevant factors and, therefore, the impugned order of the High Court is clearly unsustainable and is therefore set aside. Considering the nature of the order of detention which is essentially preventive in character, it would be appropriate for the State Government and the detaining authority to consider whether there is any need to take the detenu back to detention for serving the remainder of the period of detention which was indicated in the order of detention. The exercise shall be undertaken within two months. The appeal is allowed to the aforesaid extent.

Summary

Issues: Challenge to the judgment quashing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 based on non-supply of documents, violation of Article 22(5) of the Constitution of India, 1950, and the legality of detention without the required documents.

Analysis:
1. The appeal challenges the Madras High Court's decision to quash the detention order under the Act due to non-supply of requested documents by the detenu. The detenu sought documents including the judgment of a writ petition, claiming the need for an effective representation. The State Government supplied the writ petition order but not the judgment. The High Court found a violation of Article 22(5) of the Constitution due to non-supply of documents, leading to the detention's illegality.

2. The High Court held that without the necessary documents, the detention became illegal, and thus, allowed the habeas corpus petition. The detenu's request for specific documents was deemed crucial for a meaningful representation, emphasizing the importance of the documents relied upon by the detaining authority.

3. The appellant argues that the requested documents were not essential for the detention order as there is a distinction between the narration of facts and the grounds of detention. The appellant contends that the writ petition's dismissal order, eventually supplied, was not crucial for the detenu's knowledge. The State's counsel confirmed that the documents were read over to the detenu, emphasizing the detenu's awareness.

4. Citing precedent, it was clarified that only documents relied upon by the detaining authority for the detention decision need to be supplied to the detenu. The failure to supply certain documents should be assessed based on whether it prejudices the detenu's ability to make an effective representation, focusing on the documents forming the grounds for detention.

5. The Court reiterated that the non-supply of documents must be examined for its prejudicial impact on the detenu's case. Merely supplying some documents does not suffice if they are not the relied-upon documents. The High Court's failure to consider the impact of non-supply on the detenu's case rendered its decision unsustainable.

6. Considering the preventive nature of the detention order, the State Government is directed to evaluate the necessity of detaining the individual further within two months, based on the ongoing relevance of the acts leading to the detention order. The judgment emphasizes the importance of a temporal nexus between the original detention period and the present circumstances for deciding on further detention.