Preventive detention and effective representation: withholding relied-upon documents can vitiate the detention order for prejudice.

Non-supply of material documents relied upon in a preventive detention decision can vitiate the order where it impairs the detenu's right to make an effective representation under Article 22(5) of the Constitution. The High Court found that the diary, Form 13 and the authorisation letter were directly relevant to the detaining authority's satisfaction because they bore on the alleged export transaction and the authority said to have been issued by the detenu. As the request for copies was refused without a clear explanation distinguishing relied-upon from merely referred material, prejudice was caused and the detention order was quashed.

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Issues: Whether non-supply of the diary, Form 13 and the authorisation letter, which were treated as relied upon and relevant to the detention decision, vitiated the preventive detention order for denial of the detenu's right to make an effective representation.

Analysis: The detention order itself stated that all facts and material referred to and relied upon in the grounds, including the statements, mahazars and bail petition, were taken into account. The three documents in question were found to have direct relevance to the detaining authority's satisfaction because they bore on the alleged export transaction, the use of Form 13 and the authorisation said to have been issued by the detenu. The request for copies of those documents was specifically made, but the rejection did not explain why the documents were withheld or distinguish clearly between relied upon and merely referred to material. Since the right to make a representation under Article 22(5) of the Constitution of India includes access to material documents necessary for an effective representation, withholding such relevant documents without a proper explanation caused prejudice.

Conclusion: The non-supply of the material documents vitiated the detention order and the detention was quashed in favour of the petitioners.

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