Preventive detention: non-supply of a detenu's reply to the show cause notice can vitiate detention for denial of effective representation.

The Bombay HC text states that a detenu's reply to a show cause notice can be a material and vital document where it directly addresses the facts forming the basis of preventive detention. Because the reply contained factual assertions and legal pleas relevant to the authority's subjective satisfaction, its non-placement before the detaining authority and non-supply to the detenu were said to vitiate the detention for non-application of mind and denial of an effective representation under Article 22(5). The stated result is that the detention order was rendered unsustainable.

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Issues: Whether the detenu's reply to the show cause notice was a vital document whose non-placement before the detaining authority and non-supply to the detenu vitiated the detention order for non-application of mind and infringement of the right to make an effective representation under Article 22(5) of the Constitution of India.

Analysis: The detention was founded on the alleged seizure of foreign currency and the show cause notice required an explanation on the very facts that formed the basis of the proposed detention. The reply given by the detenu was not confined to a bare denial or retraction but contained several factual assertions and legal pleas directly bearing on the subjective satisfaction required for detention. In such circumstances, the reply was a material and vital document. Since it was neither placed before the detaining authority nor supplied to the detenu, the authority's subjective satisfaction stood vitiated and the detenu was deprived of the opportunity to make an effective representation.

Conclusion: The non-placement and non-supply of the detenu's reply rendered the detention order unsustainable; the challenge succeeded.

Ratio Decidendi: All material documents, including a detenu's reply to a show cause notice on the very foundation of preventive detention, must be placed before the detaining authority and supplied to the detenu, failing which the detention is vitiated for non-application of mind and denial of effective representation.

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