Constitution of India – Art. 22(5) – Right to make representation – Preventive Detention – Non-supply of legible copies of documents relied upon by detaining authority – Denial of effective representation – Respondent no.1 was subjected to preventive detention under 1988 Act – High Court set aside the order of detention passed on the premise that the appellants failed to supply the legible copies of documents relied upon while passing the order of detention – On appeal, held: Right to make representation is a fundamental right of the detenu u/Art. 22(5) – Supply of illegible copy of documents relied upon by the detaining authority has deprived the respondent in making an effective representation and denial thereof will hold the order of detention illegal – Further, though the respondent failed to question before the detaining authority that illegible or blurred copies were supplied to him, but the right to make representation being a fundamental right, the detenu is always entitled to be supplied with the legible copies of the documents relied upon by the detaining authority – Information made in the grounds of detention enables him to make an effective representation – No error committed by High Court in setting aside the order of preventive detention – Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Constitution of India – Art. 22(5) – Rights conferred under – Discussed.
Constitution of India – Art. 22(5) – Held: Refusal to supply the documents requested by the detenu or supply of illegible or blurred copies of the documents relied upon by the detaining authority amounts to violation of Art. 22(5) – However, whether an opportunity has been afforded to make an effective representation always depends on the facts and circumstances of each case. Dismissing the appeals, the Court
HELD: 1.1 Article 22(5) of the Constitution confers two rights on the detenu, firstly, the right to be informed of the grounds on which the order of detention has been made and, secondly, to be afforded an earliest opportunity to make a representation against the order of detention. Right to make a representation implies that the detenu should have all the information that will enable him to make an effective representation. No doubt, this right is again subject to the right or privilege given by clause (6). At the same time, refusal to supply the documents requested by the detenu or supply of illegible or blurred copies of the documents relied upon by the detaining authority amounts to violation of Article 22(5) of the Constitution. Although it is true that whether an opportunity has been afforded to make an effective representation always depends on the facts and circumstances of each case. [Paras 16, 17][767-F-H; 768-A]
1.2 The right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution and supply of the illegible copy of documents which has been relied upon by the detaining authority indeed has deprived him in making an effective representation and denial thereof will hold the order of detention illegal and not in accordance with the procedure contemplated under law. It is the admitted case of the parties that respondent no.1 has failed to question before the detaining authority that illegible or blurred copies were supplied to him which were relied upon while passing the order of detention, but the right to make representation being a fundamental right under Article 22(5) of the Constitution in order to make effective representation, the detenu is always entitled to be supplied with the legible copies of the documents relied upon by the detaining authority and such information made in the grounds of detention enables him to make an effective representation. [Paras 21, 22][770-F-H; 771-A-B]
1.3 It was specifically raised by the respondents in their writ petition and the reference has been made in para 9 of the petition referred to and in the pleadings on record, there was no denial in the counter filed by the appellants before the High Court that the documents which were supplied and relied upon by the detaining authority were legible and that has not denied respondent no.1 in making effective representation while questioning the order of detention and once this fact remain uncontroverted from the records as being placed before the High Court in writ petition filed under Article 226 of the Constitution and the legal principles being settled, there is no substance in the submissions that merely because respondent no.1 has failed to raise this question before the detaining authority which go into root of the matter to take away the right vested in the appellant/detenu in assailing the order of detention while availing the remedy available to him under Article 226 of the Constitution of India. The right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled him in making effective representation in assailing the order of detention in view of the protection provided under Article 22(5) of the Constitution, the same renders the order of detention illegal and no error is committed by the High Court in setting aside the order of preventive detention under the impugned judgment.[Paras 23, 24][771-C-H]
Bhupinder Singh v. Union of India & Others (1987) 2 SCC 234; Ramchandra A. Kamat v. Union of India and Others (1980) 2 SCC 270 : [1980] 2 SCR 1072; Union of India v. Ranu Bhandari (2008) 17 SCC 348 : [2008]
13 SCR 582 – relied on.
Smt. Dharmista Bhagat v. State of Karnataka &
Another (1989) 2 Supp SCC 155 : 1990 (1) JT 192; Manjit Singh Grewal @ Gogi v. Union of India & Ors. (1990) Supp. SCC 59; Mehrunissa v. State of
Maharashtra (1981) 2 SCC 709 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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