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TMI Blog2016 (6) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... ani And Sangita Dhingra Sehgal, JJ. For the Petitioner : Pradeep Jain, Shubhankar Jha, Tarun Chawla, Rahul Raheja, Ashish Bansal, Ashish Batra, Vikas Sareen For the Respondent : Anurag Ahluwalia, Shreya Sinha, Srishti Bannerjee, Anshuman Srivastava JUDGMENT G. S. Sistani, J. 1. Present writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the detetion order F.No.673/05/2015-CUS.VIII dated 31.03.2015 passed by respondent no.2 under Section 3(1)(ii) of the COFEPOSA Act, 1974. The present writ petition has been instituted by the wife of the detenue, (hereinafter referred to as the detenue ). 2. Notice was issued in this matter. Pleadings are complete. With the consent of the parties, the writ petition is set down for final hearing and disposal. Rule DB. 3. Before the rival submissions of learned counsel for the parties can be considered, we deem it appropriate to notice some of the relevant facts which have given rise to the filing of the present writ petition. 4. As per the petition, during July 1993 detenue joined the Indian Navy as a Sailor and got promoted at var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made it clear that the documents asked for were already in the exclusive possession of the department and as such he was unable to submit the same. 8. As per the petition, on 28.11.2014 an order of transfer was issued to the detenue by the department and by the said order the detenue was transferred to SIB, Bhubaneswar, Orissa. Thereafter an office order No. BOM/BOI/358/2014 dated 10.12.2014 had been issued whereby the detenue has been relieved from his present post w.e.f. 15.12.2014 with instructions to report to DD, SIB, Bhubaneswar after availing admissible joining time. 9. From 31.12.2014, the detenue joined the SIB Bhubaneswar and started performing his duties as ACIO-I. 10. A Show Cause Notice dated 1.1.2015 issued by the Customs Department was served to the detenue on 4.2.2015 through his department. It is the case of the petitioner that on reading the contents of the show cause notice it was noticed that the detenue has been placed as Noticee no.6 and the said show cause notice was issued in connection with the alleged incident of gold smuggling on 7.7.2014 at Goa Airport. The allegations made against the detenue in the show cause notice were that there had been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the Times of India newspaper Goa addition, dated 13.7.2015 wherein his name also appeared in respect of some detention order. Thereafter the detenue got a copy of newspaper of that particular date through his friend in Goa. On reading of the said newspaper, the detenue came to know that a detention order as mentioned above had been issued by the Joint Secretary, Govt. of India against the detenue and by way of said publication the detenu has been directed to appear before the Director General of Police, Government of Goa Panaji. 14. Thereafter, the detenue filed a writ petition before the High Court of Delhi being WP(Crl) 1707/2015 to challenge the above detention order at a pre-execution stage. At the admission stage itself the petition was withdrawn with liberty to file the same at the appropriate stage. As per the petition, the detenue had filed another writ petition number before the High Court of Kerala being WP (Crl) 400/2015 challenging the impugned detention order at the pre-execution stage. It is the case of the petitioner that the detaining authority had filed a detailed counter affidavit in the above writ petition. The High Court of Kerala dismissed the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e set aside on the ground of violation of detenue s right under Article 22 (5) of the Constitution of India as the detenue has not been provided various relied upon documents or provided documents which are not readable/dim etc. due to which it has created embargo in making effective and adequate representation which is the only right/remedy available to the detenue? F. Whether the detention order is not liable to be set aside on the ground of violation of detenue s right under Article 22 (5) of the Constitution of India as the detaining authority failed to show the contents of the CCTV footages so supplied to the detenue? G. Whether in the fact and circumstances of the present case, the invocation of preventive detention is bad in law when the ordinary law of the land was available and the same was not resorted to by the sponsoring authority? H. Whether the representation of the detenue was considered by the appropriate authority, i.e., the person passing the detention order? I. Whether the delay on the part of respondent no. 3 in forwarding the communication and representation of the detenue amounts to violation of the Fundamental Right of the detenue? 18. Mr. Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the detenu earlier. It is also pointed out that the said transfer order was passed on the basis of the request sent by the sponsoring authority to the parent department of the detenu. Furthermore, the sponsoring authority also sent a communication dated 23.12.2014 to the Director, Dabolim Airport instructing the authorities not to permit the detenu to enter the Airport. It is thus contended by Mr. Jain that since the detenue had already been transferred on the request of the sponsoring authority which was prior to the passing of the detention order dated 31.03.2015 which order was passed with a view to prevent him from prejudicial activities is wholly unwarranted, per se illegal and the detenue was no longer performing the duty at Goa Airport. 21. As noticed above, although various grounds were raised by the counsel for the petitioner, three grounds have been pressed before us. The first ground raised by Mr. Jain is that relevant documents were not placed before the detaining authority by the sponsoring authority. Mr. Jain has contended that there is a serious lapse on the part of the sponsoring authority in not placing the relevant records/documents before the detaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id that the detaining authority was unaware about the factum of transfer of the petitioner from Goa to Bhubaneswar. 27. The second submission of the learned counsel for the petitioner is that there has been a delay in execution of the impugned detention order of more than 09 months. The detention order was issued on 31.03.2015 and the detenu was continuing in performing his duties at Bhuvaneshwar even after passing of the said order, i.e., till 13.07.2015. The counsel contends that the respondents were fully aware of the whereabouts of the detenu which is very much borne out from the record. Even the show cause notice dated 1.1.2015 issued by the sponsoring authority has been served to the detenu through his office. It is also a matter of record that the reply dated 18.2.2015 to the show cause notice was submitted to the sponsoring authority wherein it has been specifically mentioned about the whereabouts of his official place of duties. Counsel submits that it is very much apparent and evident on record that both the sponsoring authority and the detaining authority were fully aware of the whereabouts of the detenu but admittedly no efforts were made to send the detention order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Copy of the Detention order dated 31.03.2015 was handed over to the Director General of Police, Govt of Goa (the Executing Authority) under acknowledgement along with photographs of the PDs and the SOP proforma containing all the material particulars about the PD, after completion of the following : a. The set of documents and recording of CCTV footage and snapshots that were relied upon, when the Grounds of Detention were finalized and the final set of R.U.Ds consisting of 3237 pages each coupled with 12 CD of 8 GB each. b. A total of 22 sets of RUDs including 22 Sets of 12 CD of 8 GB each were prepared, so that one set each could be provided to each of the 10 PDs immediately after their detention within the mandatory period and their acknowledgment obtained on each page of the other set. In order to ensure that RUDs contain complete and legible contents, each and every page was examined and replaced wherever required, then serially numbered and stamped with office seal. 8. 14.05.2015 Meeting with DIG (Goa) additional photos and brochure with details of Proposed Detenu (PD) handed over. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2015 Thereafter the Department received a letter No.PI/EOC/1261/2015 Economic Offences Cell, Goa Police dated 30.05.2015 requesting to furnish the present address of the person to be detained namely Shri Gireesh Adavalath Meethal. 12. 13.05.2015 The Sponsoring Authority i.e. the Commissioner of Customs, Goa as well as the Executing Authority i.e. Director General of Police, Goa have been requested to inform the Ministry about the efforts made to execute the Detention Order. 13. 23.06.2015 The Superintendent of Police (South Goa) vide his Letter F.No. SP/EOC/50/2015 informed the Ministry that the detention order issued against Shri Gireesh Advalath Meetal, has been forwarded to The District Police Chief, Kozhikode (Rural), Vatakara, Kerala-6773105 on 20.06.2015 with request to take necessary action at their end as per the order. 14. 29.06.2015 In response, the Joint Secretary (CFEPOSA) vide her D.O. No. 673/03/2015-Cus.VIII had informed the Executing Authority i.e. the Director General of Police, Goa to cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to prevent the detenue from committing and continuing to commit the prejudicial activities, which may have been alleged against him. It is not in dispute that till 13.07.2015, the detenue was in active service at Bhubaneswar. After 13.07.2015, the detenue was on leave for one week and thereafter he sought medical leave. 33. Before the rival submissions of learned counsel for the parties can be considered, we deem it appropriate to revisit the law on the subject. 34. In the case of Mohammed Farook v. Joint Secretary, GOI Ors., reported at (2000) 2 SCC 360), more particularly in paras 3 to 10, Supreme Court observed as under: 3. Several contentions have been raised in this Writ Petition but, however, it is not necessary to deal with all these contentions save and except the one which relates to delay in executing the order of detention. The precise contention in this behalf is taken by the petitioner in this petition in paragraph 6(ii). It is stated that although the detention order was made on February 25, 1999 but the authorities have not executed the same immediately. On the contrary the authorities have chosen to execute the detention order only on April 6, 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgments which were brought to our notice. 10. As indicated earlier the only explanation given by the detaining authority as regards the delay of 40 days in executing the detention order is that despite their efforts the petitioner could not be located at his residence or in his office and therefore the order could not be executed immediately. No report from the executing agency was filed before us to indicate as to what steps were taken by the executing agency to serve the detention order. In the absence of any satisfactory explanation explaining the delay of 40 days, we are of the opinion that the detention order must stand vitiated by reason of non execution thereof within a reasonable 5 time. From Annexure P.2 (the proceeding sheet of the M.M. Court Madras) it appears that the petitioner (accused) was present in the court of Additional Chief Metropolitan Magistrate on 25.2.1999 as well on 25.3.1999. 10 Despite such opportunities neither the detaining authority nor the executing agency as well as sponsoring authority were diligent to serve the detention order on the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on with any other case. 36. In the case of Shafiq Ahmed v. District Magistrate, Meerut Ors., reported at (1989) 4 SCC 556), more particularly in paras 4 to 6, Supreme Court observed as under: 4. In this petition various grounds have been taken before this Court challenging the order under Article 32 of the Constitution. Mr. C.P. Mittal, learned counsel for the petitioner, however, urged before us three grounds upon which he contended that the said order be quashed or set aside. It was submitted by Mr. Mittal that there was inordinate delay in arresting the petitioner pursuant to the order, which indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order and that preventive detention of the petitioner was necessary for preventing him from such conduct. He .further submitted that delay in the circumstances of this case in arresting the petitioner and or in acting pursuant to the order indicated that the so-called grounds were merely make-belief and not genuine grounds upon which the satisfaction of the authority concerned was based. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority and the avowed purpose of detention, and in appropriate cases it is possible to assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. Mr Yogeshwar Prasad, learned counsel for the State of U.P. drew our attention to the decision of this Court inIndradeo Mahato v. State of West Bengal, [1973] 4 SCC 4. That was also a case of arrest under the Maintenance of Internal Security Act, 1971. It was urged in that case that there was no real or genuine apprehension that the petitioner there was likely to act in a manner prejudicial to the maintenance of public order. This Court in the facts of that case, was unable to accept the said contention. The Court held that mere failure to take recourse to ss. 87 88 of the Criminal Procedure Code would be a warrant to believe that the delay was unreasonable. Whether the delay was unreasonable depends on the facts and the circumstances of each case. We are satisfied, in view of the facts and circumstances of the case mentioned before, that by the conduct of the respondent authorities, there was undue delay, delay not commensurate with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice issued to the detenue, the detenue had in the opening paragraph of the reply stated that he had received a show cause notice on 4.2.2015 at his office Subsidiary Intelligence Bureau, Bhubaneswar, Orissa, where he was working. A copy whereof has been filed along with the writ petition. In the light of the facts that there is little room for doubt that the respondents were aware prior to the passing of the detention order, the detenue stood transferred to Bhubaneswar. In this view, the explanation which has been rendered and extracted in paragraph afore going, shows complete non-application of mind and a rather sorry state of afairs. 41. As per the explanation rendered, a copy of the detention order was sent to the Home Secretary, Government of Goa, by Speed Post on 17.4.2015. The first explanation, which is required to be given by the respondents no.1 and 2 is the time spent between 31.3.2015 to 17.4.2015. After 17.4.2015, as per the explanation rendered, 22 sets of documents of 3237 pages and 12 CDs each were prepared between 17.4.2015 to 5.5.2015. 42. Mr. Ahluwalia submits that during the period between 17.04.2015 to 05.5.2015 time was taken to prepare 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion order is that the detenue was supplied with 12 CDs containing 8 GB data, each, but despite a representation having been made for supply of a CD player to watch the CDs, the CD player was not supplied to him. 49. Mr. Jain submits that at the time of serving of the ground of detention and relied upon documents, the detenu had made a request to view the CD s of CCTV footage and snapshots supplied to him along with the relied upon documents, but no arrangement was provided by the detaining authority which amounts to serious latches on the part of the detaining authority. Mr. Jain contends that on 21.01.2016, the detenu had again sent a formal written request to the detaining authority requesting it to provide the legible copies of certain documents supplied to him along with the ground of detention and also requested to make necessary arrangements to view the contents of the CDs supplied to him. But the detaining authority has not at all made any arrangement till date to view the same nor supplied the legible copies of the documents. The counsel submits that the said request has been summarily rejected by the detaining authority vide its communication dated 03.03.2016 without af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2015, more particularly para 15, which reads as under: 15. As the quoted text would reveal, in essence, it was reiterated that if a representation is received by an appropriate authority and there is no time to dispose of the same having regard to the time frame fixed by the Act for reference of the matter to the Advisory Board, the representation must also be forwarded to the Advisory Board along with the records of the detenu. This assumes significance, in our comprehension, in view of the binding nature of the opinion of the Advisory Board, in case, on a consideration of the materials on record, it decides to hold against the detention. In case, the Advisory Board holds that the detention order is invalid, it is not open for the appropriate Government to continue therewith and it has to essentially revoke the same though the converse may not be the same. In other words, if the Advisory Board upholds the order of detention, it would still be open to the Central Government, depending on the merits of each case, to release the detenu. The fact that the opinion of the Advisory Board against continuance of the order of detention is final vis-a-vix the appropriate Government, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also be furnished to the detenue within the prescribed time. The stand of the respondents that they had shown the CDs to the detenu during the course of investigation is not a proper service as per law. The detaining authority heavily relied upon the CDs in the grounds of detention and thus were duty bound to show the entire contents of the same to the detenue as a matter of right. The Court cannot lose track of the fact that the detenue was in judicial custody and he could not have access to any facility for seeing the CDs and cannot be forced to rely on his memory for making an effective representation against the detention order. The right to make a representation is a right provided in the Constitution. The supply of 12 CDs as relied upon documents are not disputed by the respondents, but the respondents failed to provide the facility to see the CDs for making an effective representation even before the meeting of the Advisory Board which was held on 12.02.2016. It may also be noted that from the list of events enclosed by the respondents in their counter affidavit at Serial No.106 of page No.38, that an officer was deputed to the Sub-Jail Sada Goa along with a laptop to faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides as under: For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made, as soon as may be, after the detention, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention. The true meaning and import of clause (5) of Article 22 of the Constitution was explained by this Court in Khudiram Das v. State of W.B : The constitutional imperatives enacted in this article are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the recorded conversation. A copy of the free transcript was handed over to us by the Additional Solicitor General in the Court. It consists of about 40 pages. On a reading of the said conversation, it is apparent that it is an audio recording of a conversation between two persons sitting in an office or a room. It does not appear to be a recording of a telephonic conversation. The transcript refers to earlier telephonic conversations, which the one of the voices claims were tapped. If there was any tapped conversation, the same has not been brought on record and has not been relied by the sponsoring or the detaining authority. The free transcript of the recorded conversation in the audio file is a relied upon document. The detaining authority in the detention order has stated:- 17. In the counter-affidavit dated 20 th April, 2015, it is observed that various other evidences and statements have been placed before the detaining authority, which proves the complicity of the detenue in the offence. Forensic examination was sought to be done only to nail the factually incorrect statements made by the detenue and to further buttress the whole body of incriminating evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 108 of the Act, stated that he did not recognize voices of the persons in the recorded conversation. The contention on behalf of the detenue is that the purported conversation in the audio file was not downloaded or noticed on 13th June, 2013. It was allegedly down-loaded only on 30th July, 2013 and the mobile phone had remained in the custody of the respondents, in this period, though in a sealed paper envelope. It was unlikely and irrational to expect and believe that the detenue would record his conversation with Chandan Kumar Jain, after the consignment had been seized. The recording served no purpose or benefitted the detenue. No other audio file except Gurbani was downloaded. These aspects, it is highlighted, could have been effectively raised and elucidated, if the audio file was made available. The free transcript cannot be equated with the audio file in the present case, in terms of the questions and issues arising for consideration. 19. The another question which would arise, it is submitted, relates to the downloading of data, which as noted above, was initially downloaded on 13th June, 2013, and then again after about 45 days on 30th July, 2013. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nversed with Chandan Kumar Jain or if there was interpolation or tampering. We at this stage, note that as per the forensic report voice of Chandan Kumar Jain is present in the said audio file. The stand and stance of the detenue may be wrong, fallacious and farcical but the detenue has right to raise contentions and meet the assertions against him by referring to the evidence relied upon. Right to make representation is a precious and preserved right. Final decision is the conclusion and termination after examination of the representation. 22. Learned Additional Solicitor General has submitted that the audio file was heard by the detenue on 5th August, 2013, and, therefore, no prejudice is caused. We do not think this argument should be accepted, as at that time, preventive detention order had not been passed. The argument, in fact, accepts importance of the audio file and it s relevance. It is not the case of the respondents that a copy of the audio file was made available to the detenue at any time. Free translation, we note, is a secondary evidence and not primary evidence. The audio file is the primary evidence and in the facts of present case, the contention raised is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act. Similar conditions for admissibility of a taperecorded statement were reiterated in Ram Singh v. Col. Ram Singh and recently in R.K. Anand v. Delhi High Court. 27. Tested on the touchstone of the tests and safeguards enumerated above, we are of the opinion that in the instant case the appellant has miserably failed to prove the authenticity of the cassette as well as the accuracy of the speeches purportedly made by the respondent. Admittedly, the appellant did not lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by the respondent or his agent. On a careful consideration of the evidence and circumstances of the case, we are convinced that the appellant has failed to prove his case that the respondent was guilty of indulging in corrupt practices. 24. In R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this particular type of evidence. Once the original is impugned and sufficient details as to certain peculiarities in the proffered evidence have been examined in court, and once the situation is reached that it is likely that the proffered evidence is not the original-is not the primary and best evidence-that seems to me to create a situation in which, whether on reasonable doubt or whether on a prima facie basis, the judge is left with no alternative but to reject the evidence. In this case on the facts as I have heard them such doubt does arise. That means that no one can hear this evidence and it is inadmissible. 25. In Vijay Ranglal Chorasiya v. State of Gujarat, (2014) 12 SCC 400, the Supreme Court relied upon identification of voice in the tape recording machines set up by the police for surveillance. Reference in this regard can be also made to a recent decision of the Supreme Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123, wherein it has been observed: 16. It is to be noted that in the first complaint filed by the second respondent, the de facto complainant, there is no allegation for any demand for bribe by the appellant. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign marking were recovered from the possession of the detenu was sufficient for subjective satisfaction of the detaining authority in making the said order of detention. So the detention order cannot be termed as illegal and bad for non-supply of legible/typed copy of the said document i.e. Panchnama dated February 12, 1988. The Panchnama dated February 12, 1988 which had been referred to in the list of documents referred to in the grounds of detention and a copy of which had been given to the detenu along with the grounds of detention, is not at all legible as is evident from the copy served on the detenu. It is also not in dispute that on receiving the documents along with the grounds of detention the detenu had made a representation to the Respondent No. 1 stating that some of the documents including the Panchnama which had been supplied to him are illegible and as such a request was made for giving typed copies of those documents to enable the detenu to make an effective representation against the same. The detaining authority on receipt of the said representation sent a reply denying that the copies of those documents were illegible and refusing to supply typed copies of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are constrained to hold that the refusal on the part of the detaining authority to supply legible copies of the said relevant document to the detenu for making an effective representation infringed the detenu's right under Article 22(5) of the Constitution. The order of detention is, therefore, set aside and the detenu is directed to be released forthwith. The appeal is thus allowed. 62. In the case of Powanammal v. State of T.N. And Another, reported at (1992) 2 SCC 414, more particularly in para 9, Supreme Court held as under: 9. However, this court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenue need not show that any prejudice is caused to him. This is because non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The detune is, therefore, entitled to be released. He is accordingly directed to be released forthwith. The petition is allowed. 64. In the case of Satyaprakash Behl v. UOI Ors., Criminal Writ Appeal No.241/1997, more particularly in paras 4 to 13, the Supreme Court held as under: (4) Learned Counsel for the petitioner has challenged the order on several grounds. He has first contended that the audio cassette and the transcript of the cassette were not supplied alongwith the order/grounds of detention or within five days after the service of the same; and still the transcript of the cassette recording has not been supplied a tall. In the absence of this material, the petitioner was denied the opportunity of making an effective representation against the order, resulting in violation of Art. 22(5) of the Constitution of India. For this reason detention is illegal and void. Whereas learned Counsel for the respondent has contended that the audio cassette has not been relied upon by the detaining authority and as such nonsupply of the same is of no consequence. (5) In the grounds of detention, about the audio cassette, it has been stated as under: ON23.2.1996, Narcoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in letter dated 22.3.1997 cassette player was supplied on 29.3.1997, yet, the transcript was not supplied. (8) In Khudiram Dass v. State of West Bengal and Ors., regarding the constitutional safeguards under Article 22(5), it was observed: (1) the Detaining Authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the Detaining Authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before the executive authority can preventively detain a person.... (9) It was further held in this case that the grounds under Article 22(5) mean all the basic facts and materials which have been taken into account by the Detaining Authority in waking the order of detention and on which, therefore, the order of detention is made. (10) In the counter affidavit dated9.7.1997 filed on behalf of the respondents, but not of the Detaining Authority who had passed the order, the stand taken is that ''the audio cassette was not reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors., reported at (1999) 2 SCC 413, the Supreme Court explained the distinction between the document, which has been relied upon by a detaining authoring on the grounds of detention in comparison to a document, which may find a mere reference in the grounds of detention. The Supreme Court also explained that non-supply of a copy of document, relied upon in the grounds of detention, has to be held to be fatal to continue detention and the detenue does not have to show that any prejudice was caused to him, as non-supply of such a document and of not being afforded the opportunity of making an effective representation against the order. 67. In this case, the CCTV footage contained in the 12 CDs find mention in the grounds of detention. 68. There are reference to CCTV footage in paragraphs 87 to 89 and as many as 29 times in the entire grounds of detention. In effect, it can safely be said that to form a subjective satisfaction the detaining authority has relied on the CCTV footage, and thus, the CCTV footage in the 12 CDs are held to be relied upon documents. Merely because the CDs provided to the detenue along with the show cause notice or he was shown the CCTV footage at th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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