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2009 (4) TMI 953
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....ench of the High Court of Karnataka, statement of objections (counter affidavit) was filed by the detaining authority. According to the appellants, the High Court did not consider the case in proper perspective and dismissed both the writ petitions filed by the detenu. The detenu, aggrieved by the impugned judgment of the High Court, has preferred these appeals before this Court on the following grounds: (i) non-supply of relied upon and relevant documents vitiates the detention order; (ii) the detention order is vitiated on the ground of non-application of mind; (iii) the detention order is liable to be quashed because of failure to place all relevant documents before the detaining authority; and (iv) the prejudice cannot be urged in detention matters. 5. We propose to deal with the impact of non-supply of relied upon and relevant documents on the detention order. 6. In ground no.15 of detention, it is categorically mentioned that the detenu was abetting in smuggling of red sanders. Again, in ground no.17, the detaining authority while recording its satisfaction has again reiterated that "I am satisfied that you are abetting in smuggling red sande....
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....as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under article 22(5), as interpreted by this Court by majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article 22. That not having been done in regard to the ground mentioned in sub-paragraph (e) of paragraph 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21. The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith." 11. The right which the detenu enjoys under Article 22(5) is of immense importance. In order to properly comprehend the submissions of the detenu, Article 22(5) is reproduced as under: "22(5). Whe....
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....communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is dear that "grounds" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the 'grounds' must be supplied to the....
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....icle 22 read with Section 3, Sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void." 14. In Khudiram Das v. State of West Bengal and Others (1975) 2 SCC 81, the Court observed that Article 22(5) insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu. Para 13 of this case reads as under: "....... Section 8(1) of the Act, which merely re-enacts the constitutional requirements of Article 22 (5), insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu, so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed b....
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....d ab initio. 18. In Khudiram Das's case (supra), Article 22 has been succinctly analyzed by this court. It was observed that the detaining authority cannot whisk away a person and put him behind bar at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu as expeditiously as possible, so that he can make effective representation against the order of detention. The court further observed that Article 22 provides various safeguards calculated to protect personal liberty against arbitrary restraint without trial. These safeguards are essentially procedural in character and their efficacy depends on the care and caution and the sense of responsibility with which they are regarded by the detaining authority. These are barest minimum safeguards which must be strictly observed by an executive authority. 19. In Golam alias Golam Mallick v. State of West Bengal (1975) 2 SCC 4, a four-Judge Bench of this court has reiterated the legal position. The court observed as under: "No doubt, Clause (5) of Article 22 of the Constitution and Section 8 of the Act do not, in terms, speak of 'particulars' or 'facts', but only of....
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....rounds of detention is not a compliance of the mandatory provisions of Article 22(5) unless the grounds are accompanied with the documents which are referred to or relied on in the grounds of detention. Any lapse would render the detention order void. 25. This Court in Sophia Gulam Mohd. Bham v. State of Maharashtra and Others (1999) 6 SCC 593 para 11 observed that effective representation by the detenu can be made only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion were supplied to him. 26. In District Collector, Ananthapur and Another v. V. Laxmanna (2005) 3 SCC 663, this Court again reiterated that the documents and materials relied upon by the detaining authority must be supplied to the detenu for affording him opportunity to make effective representation. 27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution ....