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TMI Blog2022 (10) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... ority amounts to violation of Article 22(5) of the Constitution. Although it is true that whether an opportunity has been afforded to make an effective representation always depends on the facts and circumstances of each case. It is the admitted case of the parties that respondent no.1 has failed to question before the detaining authority that illegible or blurred copies were supplied to him which were relied upon while passing the order of detention, but the right to make representation being a fundamental right under Article 22(5) of the Constitution in order to make effective representation, the detenu is always entitled to be supplied with the legible copies of the documents relied upon by the detaining authority and such information made in the grounds of detention enables him to make an effective representation. The right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Secretary (Home), Government of Manipur, whereby respondent no.1 was subjected to preventive detention under the provisions of the Act 1988. 8. The main thrust on which the writ petition was filed under Article 226 of the Constitution assailing the order of detention was that respondent no.1 was not supplied with legible copies of the documents relied upon by the detaining authority while passing the order of detention and that has taken away the valuable right of respondent no.1 in making an effective representation. The right to make a representation is a fundamental right and non-supply of the legible copies of the documents relied upon by the authorities in passing the order of detention is in violation of Article 22(5) of the Constitution and placed reliance on the judgments of this Court in Smt. Dharmista Bhagat v. State of Karnataka Another 1989 Supp (2) SCC 155, Manjit Singh Grewal @ Gogi v. Union of India Ors. 1990 (Supp.) SCC 59, Mehrunissa v. State of Maharashtra (1981) 2 SCC 709 and Bhupinder Singh v. Union of India Others (1987) 2 SCC 234. 9. The Division Bench of the High Court placed reliance on the aforesaid judgments of this Court and set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning Authority as done in other cases. However, the petitioner did not mention any such request in his representation submitted to the detaining authority. Original acknowledgement receipt annexed hereto and marked as A. 12. Likewise, in Writ Petition (Crl.) No.15 of 2021 before the High Court, similar averments were made. Extracts of para 9 and ground (e) are reproduced hereunder: 9. That, it is pertinent to mention herein that the documents which form the basis of the grounds of detention at page nos.79, 81, 83, 85, 87, 89, 93, 95 enclosed herewith are all blurred and not readable and even then the respondent No.1 furnished incomplete documents while furnishing the documents of ground of detention to the petitioner (left behind most of the pages of documents annexed in ground of detention). The petitioner has filed the documents in original before the Hon ble Court, furnished by the respondent no.1 and as such the detenu could not make an effective representation before the detaining authority, therefore, the impugned order are liable to be set aside. A true copy of the documents which are not readable enclosed in the grounds of detention dated 22.05.2021 is enclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived respondent no.1 in making an effective representation, denial thereof was indeed in violation of Article 22(5) of the Constitution and once the fundamental right has been infringed, even if it was not raised before the detaining authority, that will not take away the fundamental right conferred by law to respondent no.1 in assailing order of detention as permissible to him under the law and once this fact remains uncontroverted, no error has been committed by the High Court in setting aside the order of detention. 16. Article 22(5) of the Constitution confers two rights on the detenu, firstly, the right to be informed of the grounds on which the order of detention has been made and, secondly, to be afforded an earliest opportunity to make a representation against the order of detention. 17. It is well settled that right to make a representation implies that the detenu should have all the information that will enable him to make an effective representation. No doubt, this right is again subject to the right or privilege given by clause (6). At the same time, refusal to supply the documents requested by the detenu or supply of illegible or blurred copies of the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s later. On 12-5-1986 he was produced before the Advisory Board. He made a complaint before the Advisory Board that the copies of documents which were supplied to him along with the grounds of detention were not legible and he also placed before the Advisory Board a copy of a representation said to have been made by him for supply of legible copies of documents. There is a controversy whether this representation was made on 8-5-1986 or 12-5-1986. From the original files produced before us we find that the representation was typed on 8-5-1986, but actually signed by the detenu on 12-5-1986. But that would not make any difference for the purposes of this case. On 19-5-1986 the Under-Secretary to the Government of India conceded the demand of the detenu for legible copies of documents and directed the Directorate of Enforcement to supply a duplicate set of documents to the petitioner. A copy of this letter was also sent to the detenu and was acknowledged by him on 21- 5-1986. There is a controversy as regards the date on which the legible copies of documents were actually given to the detenu. According to the detenu they were served on him on 1-7-1986, whereas according to the counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detenu is necessary, have to be supplied to him. Furthermore, if in this case, the detenu's representation and writ petition had been placed before the detaining authority, which according to the detenu contained his entire defence to the allegations made against him, the same may have weighed with the detaining authority as to the necessity of issuing the order of detention at all. 21. Thus, the legal position has been settled by this Court that the right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution and supply of the illegible copy of documents which has been relied upon by the detaining authority indeed has deprived him in making an effective representation and denial thereof will hold the order of detention illegal and not in accordance with the procedure contemplated under law. 22. It is the admitted case of the parties that respondent no.1 has failed to question before the detaining authority that illegible or blurred copies were supplied to him which were relied upon while passing the order of detention, but the right to make representation being a fundamental right under Article 22(5) of the Constitution in or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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