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TMI Blog2008 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... e led to the passing of the detention order are briefly summarized hereunder. 4. Shri Sanjay Bhandari obtained Export Promotion Capital Goods Scheme (E.P.C.G.) licences as Service Provider in respect of four firms/companies which were floated by him from time to time and imported vehicles at concessional rates for personal use in flagrant misuse of the said licences. The said vehicles were never used for tourist purposes as declared for obtaining the E.P.C.G. licences and the Foreign Inward Remittance Certificate shown by him did not relate to his earnings from the use of the imported cars. In addition to the above, all the vehicles which were imported under the aforesaid licences were registered as private vehicles. 5. Shri Sanjay Bhandari was found to have violated various provisions/conditions of the Exim Policy, Foreign Trade Policy and Customs exemptions notifications and during the investigations conducted by the Directorate of Revenue Intelligence, 51 out of 61 vehicles were seized, though most of them were released provisionally on payment of differential duty and execution of Bonds and Bank Guarantees. Shri Bhandari's said activities were held to amount to smuggling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submitted that apart from the aforesaid view of general application, two other views had also been taken by this Court. One view was that all documents referred to or mentioned in the detention order would have to be supplied to the detenu and if even one of them was not supplied, the detention order would stand vitiated. The other view was that except for the documents which were relevant and had been relied upon by the Detaining Authority in passing the detention order, other documents mentioned in the detention order or referred to therein were not required to be supplied to the detenu. The learned Additional Solicitor General reiterated that in the instant case all the documents on which the Detaining Authority had relied while issuing the detention order, had been duly supplied to the detenu, who, however, insisted that he should have also been provided with certain documents which were within his knowledge. The said documents had been itemised as his representation dated 12.12.2005, the show-cause notice dated 22.7.2004 which had been received by him, his writ petition No.5431 of 2002 and the I.E.C. Code pertaining to the three proprietorship firms belonging to him, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of this Court in Sunila Jain vs Union of India [(2006) 3 SCC 321], wherein also several decisions of this Court were considered, including that of Radhakrishnan Prabhakaran (supra), and it was held that non-placement of a copy of the bail application of the detenu before the Detaining Authority was not sufficient to vitiate the order of detention, since the same was within the knowledge of the Detaining Authority and had been taken into consideration while passing the detention order. 15. The learned Additional Solicitor General urged that the instant case would fall within that class of cases wherein this Court has held that non-supply of all the documents mentioned in the detention order, which had no relevance in regard to the Detaining Authority's satisfaction in passing the order of detention, would not vitiate the same. It was submitted that the High Court had erroneously proceeded on the basis of the other class of cases wherein this Court had held that even if one of the grounds of detention was found to be vague or defective or any of the documents on which reliance had been placed by the Detaining Authority had not been supplied to the detenu, it would vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been held by this Court to be sufficient to vitiate the detention order. 18. Mr. Chaudhary derived support for his aforesaid contention from the decision of this Court in M. Ahamedkutty v. Union of India [(1990) 2 SCC 1], wherein it was reiterated that the right under Article 22(5) is a right to make an effective representation and when some documents are referred to or relied on in the grounds of detention, without copies of such documents, the grounds of detention would not be complete. The detenu, therefore, had the right to be supplied with the grounds of detention along with the documents which were referred to or relied upon and if there was failure or even delay in furnishing those documents, it would amount to denial of making an effective representation. It was also observed that it was immaterial whether the detenu already knew about their contents or not, but the non-supply of the copies thereof was fatal as was held in Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709]. It was emphasised that in order to appreciate this point it would have to be kept in mind that the detenu is in jail and has no access even to his own documents. 19. Learned counsel submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of this case. But before we proceed to do so, it would be apposite to reproduce herein below a verse from a song which was introduced in the cinematographic version of Joy Adamson's memorable classic `Born Free', which in a few simple words encapsulate the essence of personal liberty and individual freedom and runs as follows: "Born free, as free as the wind blows, As free as the grass grows, Born free to follow your heart. Born free and beauty surrounds you, The world still astounds you, Each time you look at a star. Stay free, with no walls to hide you, You're as free as the roving tide, So there's no need to hide. Born free and life is worth living, It's only worth living, if you're born free." 24. The aforesaid words aptly describe the concept of personal liberty and individual freedom which may, however, be curtailed by preventive detention laws, which could be used to consign an individual to the confines of jail without any trial, on the basis of the satisfaction arrived at by the Detaining Authority on the basis of material placed before him. The Courts which are empowered to issue prerogative writs have, therefore, to be extremely cautious in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been considered by the Detaining Authority while issuing the detention order, is required to be supplied to the detenu to enable him to make an effective representation against his detention. 28. The decisions cited by the Learned Additional Solicitor General in support of his contention that all documents mentioned in the detention order were not required to be served on the detenu, such as in J. Abdul Hakeem's case (supra), takes note of the earlier decisions in Ahamedkutty's case (supra) and Radhakrishnan Prabhakar's case (supra) which had make it mandatory for the Detaining Authority to supply copies of all documents which had been relied upon by the Detaining Authority to the detenu, whether he had knowledge of their contents or not. Of course, in Radhakrishnan Prabhakar's case (supra) it was also made clear that there is no legal requirement that a copy of every document mentioned in the order has to be supplied to the detenu. What is, therefore, imperative is that copies of such documents which had been relied upon by the Detaining Authority for reaching the satisfaction that in the interest of the State and its citizens the preventive detention of the detenu is necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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