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TMI Blog2016 (1) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under Article 22(5) would not be fulfilled by just serving the grounds of detention on the detenu. It is also mandatory that the documents relied upon by the detaining authority in the grounds of detention also must be supplied to the detenu. The Constitution Bench in THE STATE OF BOMBAY VERSUS. ATMA RAM SRIDHAR VAIDYA [ 1951 (1) TMI 33 - SUPREME COURT] also held that it is obvious that the grounds for making the order are the grounds on which the detaining authority was satisfied that it was necessary to make the order. What must be supplied are the grounds on which the order has been made and nothing less. It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Without getting information sufficient to make a representation against the order of detention, it is not possible for the detenu to make an effective representation. In HARIKISAN VERSUS STATE OF MAHARASHTRA [ 1962 (1) TMI 58 - SUPREME COURT] , a Constitution Bench of the Supreme Court held that it is not sufficient that the detenu has been physically deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CCTV footages till 11.7.2015. 2. The question involved in these Writ Petitions is whether the continued detention of the detenus is vitiated on the ground that the grounds of detention were not communicated as provided under Article 22(5) of the Constitution of India, since the detenus were denied the opportunity to view the CCTV footages within the time provided under sub-section (3) of Section 3 of the COFEPOSA Act. 3. The orders of detention were issued on 28.5.2015. In execution of the orders of detention, Manu E.V., R. Krishnakumar and Muhammed Rasheed were arrested on 1.6.2015, while P.K. Shajahan was arrested on 20.6.2015. The grounds of detention were served on the detenus within five days of their date of detention. One of the documents relied on by the detaining authority in the grounds of detention is the CCTV footage at the arrival hall of the Kochi International Airport, Nedumbassery on 26.12.2014 and 7.1.2015. 4. The grounds of detention served on the detenus would reveal the following facts: Ijaz Abdulla agreed to smuggle gold from Dubai to India at the instigation of one Rafnas and Muhafiz who were working in Dubai. Ijaz Abdulla was directed to place t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining authority to arrive at the subjective satisfaction. The learned counsel submitted that on a perusal of the grounds of detention, it would be crystal clear that the CCTV footages were relied on by the detaining authority to arrive at the subjective satisfaction for the purpose of issuing the orders of detention. It is submitted that by the mere supply of the soft copy of the CCTV footages, the requirement of Article 22(5) of the Constitution is not met. Unless the detenus were provided the opportunity to view the CCTV footages, it cannot be said that the said document was communicated to the detenus as provided under Article 22(5) of the Constitution of India. It is also submitted that the detenus were denied of an opportunity to make an effective and meaningful representation to the three authorities as mentioned in the grounds of detention. This would vitiate the continued detention of the detenus. 9. The learned counsel appearing for the respondents, on the other hand, submitted that though the CCTV footages were referred to in the grounds of detention, it was made only for the purpose of narration of facts. It is submitted that the mere fact that the soft copy of the CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. On a plain reading of clause (5) of Article 22 of the Constitution of India, the requirement is to communicate to the detenu the grounds on which the order of detention has been made. The expression communicate to such person the grounds on which the order has been made was interpreted in various judicial pronouncements and it is now well settled that the constitutional requirement under Article 22(5) would not be fulfilled by just serving the grounds of detention on the detenu. It is also mandatory that the documents relied upon by the detaining authority in the grounds of detention also must be supplied to the detenu. 12. The scope of clauses (5) and (6) of Article 22 of the Constitution of India was discussed by a Constitution Bench of the Supreme Court in The State of Bombay v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Without getting information sufficient to make a representation against the order of detention, it is not possible for the detenu to make an effective representation. 14. In Harikisan v. State of Maharashtra and others (AIR 1962 SC 911), a Constitution Bench of the Supreme Court held that it is not sufficient that the detenu has been physically delivered the means of knowledge with which to make his representation. In order that the detenu should be in a position effectively to make his representation against the order of detention, he should have knowledge of the grounds of detention which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. Communication, in this context, must, therefore, mean imparting to the detenu sufficient knowledge of all the grounds on which the order of detention is based. Communication, in this context, must mean bringing home to the detenu effective knowledge of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. In Mohd Zakir v. Delhi Administration ((1982) 3 SCC 216) it was reiterated that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguards enshrined in Article 22(5). 16. In Golam alias Golam Mallick v. The State of West Bengal ((1975) 2 SCC 4), a four Judges' Bench of the Supreme Court interpreted the scope and ambit of the expression grounds occurring in Article 22(5) of the Constitution of India and held thus: 7. ..... No doubt, clause (5) of Article 22 of the Constitution and Section 8 of the Act do not, in terms, speak of 'particulars' or 'facts', but only of 'grounds' to be communicated to the detenue. But this requirement is to be read in conjunction with and subservient to the primary mandate: and shall afford him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held thus: 6. ...... If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention,but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to cl. (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the impairment of the right of the detenu to make an effective representation. The Supreme Court held that no hard and fast rule can be laid down with respect to the question whether non-supply of the documents has impaired the rights of the detenu. If an incidental reference is made to a document, it cannot always be said that it was a relied upon document to arrive at the subjective satisfaction by the detaining authority. 21. In Abdullah Khader Batcha's case, the Supreme Court held that merely because copies of some documents have been supplied they cannot by any stretch of imagination be called as relied upon documents. 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 the document. Primarily, the documents which form the grounds for detention are to be supplied and non-supply thereof would cause prejudice to the detenu. It was held that 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 . 22. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily relied on the CCTV footage to arrive at the conclusion that Manu E.V. and R. Krishnakumar, the Assistant Central Intelligence Officers at the Kochi International Airport, were involved in the smuggling activities. The CCTV footages were also relied on in the matter of arriving at the conclusion that Manu E.V. and R.Krishnakumar along with P.K.Shajahan, Muhammed Rasheed, Ijaz Abdulla and others constituted a smuggling syndicate in order to smuggle large quantities of gold from Dubai to India. It is also to be noted that taking clue from the statement given by Ijaz Abdulla under Section 108 of the Customs Act, the Officers of the Customs got the CCTV footages for the purpose of finding out whether Manu E.V. and R.Krishnakumar were parties or privies to the smuggling activities. The documents supplied to the detenus contained the CCTV footages and the same were supplied in the form of a soft copy, namely, compact disc. Thus, it is clear from the admitted facts that the CCTV footage is a relied upon document by the detaining authority to arrive at the subjective satisfaction to detain the detenus. The CCTV footage being a document relied upon in the grounds of detention, it is mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, New Delhi. The argument that the detenus could make a representation to one of these authorities on the basis of communication of the relied upon documents belatedly is not acceptable at all. The right of the detenus to make representation to three authorities cannot be denied by the respondents and providing an opportunity to make a representation to one of the authorities is not a substitute for the mandate of Article 22(5) of the Constitution of India. 26. For the reasons mentioned above, we hold that the continued detention of the detenus is illegal. 27. The learned counsel for the petitioners submitted that several grounds have been taken in the Writ Petitions to contend that the order of detention itself is illegal and void and, therefore, disposal of these Writ Petitions releasing the detenus on the ground that their continued detention is illegal should not stand in the way of causing prejudice to the petitioners. We make it clear that since we have arrived at the finding that continued detention of the detenus is illegal, it is not necessary to consider the other points raised in the Writ Petitions and all those contentions are left open. 28. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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