TaxTMI 
TaxTMI 
2019 (3) TMI 2100
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....der or orders declaring the order of Detention, the Order of Approval and the Order of Confirmation, as illegal and abinitio void. (c) Pass such other orders including release of the Detenu forthwith. (d) Award Costs. 2. It is the case of the petitioner that the detenu Ravikumar was taken into custody vide Detention Order noted above dated 29.8.2018. The said detention order is called in question on various grounds before this court. Though number of grounds have been taken, but the learned counsel for the petitioner has concentrated himself on some of the material grounds, and has elaborately argued before this court. The grounds urged before this court by the learned counsel are that: (1) Firstly, with reference to the language used in the detention order while furnishing the English and Kannada version of the detention order, there are lot of differences and some of the documents furnished to the detenu, were not translated and they are not in Kannada language. (2) Secondly, it is contended that all the documents which were referred to and relied upon by the detaining authority have not been furnished to the detenu particularly the bail ord....
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....ate General also accepts that, the bail orders and acquittal orders, in some of the cases secured, but kannada translated version has not been furnished and in some of the cases, the acquittal orders were not secured and considered by the detaining authority. Even though the violation of bail conditions and acquittal orders are referred to in the orders, they are not actually relied upon by the detaining authority. Therefore, there was no obligation to furnish those documents. 7. The other important aspect canvassed is on providing of legible copies. Of course, some of the pages shown to us are not so legible, but the learned Additional Advocate General, contends that the copies which are not legible, have not been relied upon or referred to in the detention order. Therefore, there is no obligation on the part of the detaining authority to furnish those copies. Both the counsels have relied upon various decisions in this regard which are going to be discussed in due course. 8. Before adverting to the grounds noted supra, it is just and necessary to consider as to how the grounds of detention have to be formulated and considered by the detaining authority. In this regard, we w....
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....no opportunity for the detenu/accused either to seek bail under this particular enactment or get any opportunity before any court of law for pleading for his discharge with reference to the charges leveled against him in the detention order, there will not be any trial on the basis of the allegations made in the detention order and there would be no opportunity for the detenu to challenge the grounds urged in the detention order in any court of law except filing a petition for Habeaus Corpus under the provisions of the Constitution of India. Further, Article 22(5) of the Constitution of India and the various decisions of the Hon'ble Apex Court safeguard the constitutional right of liberty of a person. The said right can be curtailed only by meticulously following the legal process as contemplated under the Act itself. Therefore, in the background of the above said aspects, all the grounds urged has to be taken into consideration independently by this court. 10. The learned counsel for the petitioner has in fact relied upon various decisions to draw the attention of this court that the detaining authority has not followed meticulously the legal obligations cast upon them. ....
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....r pages referred to at paragraph 15 of the petition are all with reference to the order sheets in different crime numbers noted in the order of detention. It is submitted that the above said documents were neither relied upon nor referred to, in order to take any decision in passing the detention order. Therefore, he submits that there is no obligation to furnish any copy of such documents much less any translated copy. In this regard, the learned counsel for the petitioner and the learned Addl. Advocate General relied upon various decisions which we would like to quote them in order to arrive at a conclusion as to what would be the correct procedure, the detaining authority should follow with respect to furnishing of the documents and materials to the detenu. First, we would like to consider the rulings relied upon by the petitioner's counsel. 15(a). In a decision reported in AIR 1969 SC 43 between Hadibandhu Das and District Magistrate, Cuttack and another, wherein the Five Judges Bench of the Hon'ble Apex Court has laid down the following principles at paragraph 6 of the judgment thus: "6. The grounds in support of the order served on the appellant ran into fourt....
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....ve of constitutional safeguards enshrined in Article 22(5) of the Constitution of India." [Emphasis supplied] Therefore, from the above decisions, it is clear that irrespective of the knowledge of the contents of the documents or the facts which are relied upon and referred to, have to be furnished to the detenu by the detaining authority. 15(c). In another ruling reported in AIR 1991 SC 2261 between Abdul Sathar Ibrahim Manik and. Union of India and others, wherein the Hon'ble Apex Court has observed that - "In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu." This decision also states that irrespective of whether the document is relied upon or referred to, if they are relevant to the case and the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention and those docum....
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....titioner, it creates an imperative mandate that, the detaining authority has the legal obligation of serving the grounds of detention and to ensure that they are in the language known to the detenu, which he can easily understand as to the grounds of detention taken against him and the documents relied upon and referred to by detaining authority and further in order to understand the said grounds as well as the documents, the legible copies of the documents must also to be furnished. This is the fundamental basic duty on the part of the detaining authority to comply with the above said legal requirements. 18. So far as the above said aspect is concerned, the learned Additional Advocate General has fairly submitted that amongst 15 grounds taken up, in some of the cases, of course, the detenu have been acquitted, the judgment copies have not been furnished and in some of the cases, where the accused are acquitted, though the acquittal orders have been produced, but translated copies have not been produced. He fairly concedes that in ground No.2, in respect of Crime No.580/2012, the accused has been acquitted, but translated copy of the judgment was not furnished. In ground No.3 pe....
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....ere is no obligation to furnish those copies. 19. Learned Additional Advocate General has strongly bent upon to argue that when the documents are not relied upon by the detaining authority, there is no obligation to furnish those documents which are simply referred to in the grounds of detention. In this context, he relied upon various rulings of the Hon'ble Apex Court. 20. In a decision reported in (1975) 2 SCC 81 between Khudiram Das and The State of West Bengal and Others, wherein the Hon'ble Apex Court has observed that - "The communication of the grounds of detention is, therefore, also intended to subserve the purpose of enabling the detenu to make an effective representation. If this be the true reason for proving that the grounds of which the order of detention is made should be communicated to the detenu, it is obvious that the 'grounds' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based." Therefore, the learned Additional Advocate General submitted that, the basic facts and the materials only be furnished alo....
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.... "8. we make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessarily shall be supplied to him." 24. From the above said decisions narrated by the learned Additional Advocate General and also as argued by him, it is clear that he want to persuade this court that detenue has a right, to be supplied with the material documents on which reliance is placed by the detaining authority for passing the detention order. On the other hand, detention order is not vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming its opinion or made the basis for passing the order of detention. Therefore, he submits that there is no necessity of supplying the copies of those documents to the detenu. He further argued that, though in some of the cases, the detaining authority has referred to some of the documents or referred to with referen....
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....s well versed in legal aspects to specifically and in a candid manner to distinguish between the documents relied upon and referred thereto. Therefore, it is incumbent upon us to say that this can be clarified by the detaining authority themselves. 28. Of course, in none of the above cited decisions, it is stated that what is meant by 'relied upon documents' and what is meant by 'referred documents'. Even if we go by the dictionary meaning for 'relied upon' documents, it means the documents which are actually relied upon and contents of the documents and the factual aspects of the documents are made basis for the purpose of tentative or final conclusion, that means the relied upon documents are the depended documents to reach a tentative or final conclusion. Per contra, 'referred documents' or referred facts are that they are just mentioned and they are not depended upon for the purpose of arriving at a tentative or final conclusion. Therefore, the referred documents are only mere mentioned documents, but actually those documents are not made basis for the purpose of arriving at any conclusion. However, the 'relied upon documents' or relied upon facts are made basis for the purp....
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....detaining authority has passed such an order leaving it to the perception of each and every person who reads that order according to their own perception and to distinguish which are of the documents only referred to or relied upon by the detaining authority. In our opinion, this will create a serious ambiguity and problem because it is not for the person who reads the detention order, to decide as to which are the documents relied or referred to by the detaining authority. It is the detaining authority which is the competent, proper and authoritative authority to say as to which are all the documents relied upon by them and the documents which are only referred to in the order. No other person shall be allowed to interpret this particular aspect otherwise, every person who reads the detention order will have his own perception and decides according to his whims and fancies in order to nullify the effect of the detention order. Therefore, by this order, we direct the detaining authority atleast hereinafter shall mention underneath each grounds of detention in the detention order as to which are all the documents relied upon by them and the documents which are only referred to. Even....
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....e authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detnu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Governme....
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....e'. On that basis it has to be held that since there was a denial of the constitutional safeguard provided to the detenu under Article 22(5) of the Constitution on account of the failure on the part of the officer who had made the order of detention to independently consider the representation submitted by the detenu against his detention and to make a decision on the said representation, the further detention of the detenu Ishwardas Bechardas Patel is rendered illegal." 39. In a decision reported in AIR 1994 SC 1479 between Moosa Husein Sanghar and State of Gujarat and others, wherein the Hon'ble Apex Court has observed relying upon various other earlier rulings in the following manner: "The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement ....
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....(4) of Article 22 read with Section 8(c) of the Act." The Hon'ble Apex Court has further clarified at para 17 that - "17. The crucial question that remains for consideration is whether the government should consider and dispose of the representation before confirming the detention order. This Court in V.J. Jain case has observed (at SCC P.405) that it is a constitutional obligation under Clause (5) of Article 22 to consider the representation before confirming the order of detention. If it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation." 41. Last, but not least, the decision of the Hon'ble Apex Court reported in (2015) 16 SCC 177 between Golam Biswas and Union of India and another also play a dominant role. In this particular decision, the Hon'ble Apex Court has observed that - "Placement of detenu's representation before the Advisory Board is mandatory obligation of the competent authority and its binding effect is also considered. If the Advisory Board upholds the order of detention, it would be open to Central....
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....me, they are not sufficient to hold that all the grounds are vitiated with reference to non-furnishing of the documents and the legible copies and the translated copies of the documents. There is no specific mention as to which are all the documents relied upon by the detaining authority, which are not furnished to the detenu. Therefore, in our opinion, this ground is not available though we have observed that hereinafter the detaining authority has to mention in the order underneath each ground of detention with reference to the documents relied upon or referred to. 44. Further it is to be remembered that, irrespective of the representation being filed to the detaining authority or Government or to the Advisory Board, directly, it will not absolve the responsibility of the Government or the detaining authority as the case may be to consider the said representation. In order to make it further clear that if the representation is made to the Government or to the detaining authority as the case may be, before sending the said representation to the Advisory Board, the detaining authority or the Government are duty bound mandatorily to consider the said representation for to serve a....
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....e representations were only considered by the Advisory Board and not considered either by the Government or by the detaining authority prior to or after sending of the papers to the Advisory Board for its opinion. Therefore, there is no consideration of the representations made by the detenu. Therefore, the whole of the detention order is vitiated for non compliance of the constitutional provisions under Article 22(5) of the Constitution of India. Therefore, we have no hesitation to quash the detention order passed by the detaining authority as illegal and void abinitio. 49. Before parting with this judgment, though we cannot exhaustively laid down meticulous guidelines, we prefer to lay down certain guidelines which may be helpful to the Government and the detaining authority while initiating the proceedings under the Preventive Detention Laws. According to us, the following are the few guidelines framed for passing the preventive detention order under the Act, for the benefit of the state holders: (1) Detention order in writing, soon after it is passed, should be communicated to the detenu. The detaining authority should also communicate the grounds of detention compr....
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....rnment, before sending the papers to the Advisory Board. If the appropriate Government revokes the detention order and directs release of the detenu, there arises no question of sending the case papers to the Advisory Board. (8) The Government shall within three weeks from the date of the detention order, place the order before the Advisory Board along with all the materials, grounds, representation if any made by the detenu, along with any report by such officer made under sub-sec (3) of section 3 of the Act. (9) The Advisory Board shall maintain records disclosing the date of receipt of the detention order and other materials, including the representation of the detenu. The Advisory Board shall consider all the materials placed before it, including the representation if any of the detenu, if necessary after calling for such further information as it deems it necessary, and if the person concerned desires to be heard, after hearing him in person and then send its report to the Government within Seven Weeks from the date of detention of the person concerned. (10) After receipt of the report from the Advisory Board, the Government before passing any order ....