2004 (11) TMI 614 - HC - Customs

Court quashes detention order citing reliance on prior order, lack of essential documents. Fresh grounds required

Ruma Moitra Versus Union of India (UOI) and Ors.

The Court set aside the impugned Order of Detention due to the detaining authority's reliance on a previous Order of Detention and failure to supply ... - Issues Involved:1. Consideration of a previous Order of Detention.2. Non-supply of documents.Issue-wise Detailed Analysis:1. Consideration of a previous Order of Detention:The petitioner challenged the impugned Order of Detention on the ground that the detaining authority considered a previous Order of Detention dated 21.01.2002, which was set aside by the Advisory Board. The Court noted that the detaining authority had admitted to relying on the previous grounds of detention, as evidenced by paragraph 61 of the Detention Order and paragraph 31 of the affidavit-in-opposition. The Court cited several precedents, including Ghulam Nambi Zaki and Hadibandhu Das, which established that a subsequent detention order must be based on fresh grounds and not on previously quashed grounds. The Court concluded that the reliance on the previous Order of Detention vitiated the subjective satisfaction of the detaining authority, rendering the current Order of Detention invalid.2. Non-supply of documents:The petitioner argued that the detaining authority failed to supply all the documents relied upon in the grounds of detention, violating Article 22(5) of the Constitution. The petitioner classified this ground under six heads:(a) Incomplete supply of documents: The petitioner contended that essential documents such as bill of entry, shipping bills, export declaration, and G.R. forms were not supplied in complete sets. The Court emphasized that it is the statutory obligation of the detaining authority to furnish all documents relied upon in the grounds of detention. The Court found that the detaining authority failed to provide complete and legible copies of these documents, which hindered the detenu's ability to make an effective representation.(b) Supply of illegible documents: The petitioner pointed out that several documents were supplied in an illegible manner. The Court held that furnishing illegible copies of documents amounts to non-supply, as it prevents the detenu from making an effective representation.(c) Wrong communication and variance between documents: The petitioner highlighted discrepancies between illegible documents and their typed versions. The Court found merit in this contention, noting that such discrepancies could mislead the detenu.(d) Non-supply of documents related to statements: The petitioner argued that certain documents shown to a witness, Mr. Vijay Kumar Goenka, were not supplied to the detenu. The Court held that the detenu is entitled to all documents relied upon by the detaining authority, but found that the specific documents in question were not relied upon in the grounds of detention.(e) Non-supply of incriminating documents: The petitioner contended that documents described as 'incriminating' in the grounds of detention were not supplied. The Court held that if the detaining authority described documents as incriminating, it must have considered them, and failure to supply such documents indicates non-application of mind, rendering the detention order invalid.(f) Uncommunicated material: The petitioner argued that certain materials mentioned in the grounds of detention were not communicated to the detenu. The Court found that the detaining authority relied on uncommunicated materials, which violated the detenu's right under Article 22(5).Conclusion:The Court allowed the writ petition, setting aside the impugned Order of Detention on the grounds of consideration of a previous detention order and non-supply of documents. The detenu was directed to be released forthwith unless required in connection with any other case.