JUDGMENT P.S. Brahme, J.
1. Heard the learned counsel for the parties.
2. Through this Writ Petition preferred under Articles 226 and 227 of the Constitution of India, the petitioner-detenu has impugned the detention order dt. 10-9-2004 passed by respondent No. 2 the Commissioner of Police, Nagpur City, detaining him under Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981.
3. The detention order, along with the grounds of detention, dt. 10-9-2004 was served on the detenu on 3-11-2004. The detention order and the grounds of detention have been annexed as Annexures "A" and "B" respectively to the petition.
4. Though the learned counsel challenges the detention order on various grounds, he pressed into service his contention that the copies of in-camera statements of the witnesses i.e. Annexures "A" and "B" have not been furnished to the petitioner/detenu and thereby right of the detenu under Article 22(5) of the Constitution of India has been violated which, in result, vitiates the order of detention. The learned counsel for the petitioner also submitted that the copies of verification of in-camera statements recorded by the Assistant Commissioner of Police have not been supplied to the petitioner, which also vitiates the order of detention as being in violation of Article 22(5) of the Constitution of India since the detenu/petitioner has been deprived of the opportunity to make effective representation.
5. Admittedly, the copies of in-camera statements Annexures "A' and "B", as also verification of statements have not been supplied to the detenu by the Detaining Authority.
6. Petitioner has challenged the order of detention on several grounds as indicated in the petition. However, since we are of the opinion that the petition deserves to be allowed in view of the decision of the Apex Court in Kamla Kanhaiyalal Khushalani v. State of Maharashtra and Anr., and the same being followed by this Court in the Criminal Writ Petition No. 716 of 2004, decided on 15-2-2005, we are not adverting to several other grounds raised by the petitioner in the petition.
7. Mr. Sonare, learned Additional Public Prosecutor submitted that the petitioner is not entitled to raise the contention as to challenge to the order of detention on the ground that copies of in-camera statements have not been furnished to him as, in the petition, the petitioner has not taken specific ground in that regard. That apart, the learned Additional Public Prosecutor, placing reliance on the decision of the Apex Court in Puranlal Lakhanpal v. Union of India, , submitted that the right of detenu to be furnished with facts or particulars under Article 22(5) of the Constitution of India is subject to the limitation mentioned in Clause (6) and even if the grounds communicated are not as precise and specific as might be desired, the appropriate authority has the right to withhold such facts and particulars, the disclosure of which it considers to be against public interest.
8. Before we advert to the contentions raised by the learned counsel for the parties, we think it appropriate to consider the decision of the Apex Court in (supra). The crux of the decision of the Apex Court is that the documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari-passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. Before an order of detention can be supported, the constitutional safeguards must be strictly observed.
9. The Apex Court in Para 5 of the Judgment observed as under :
"This Court in Maneka Gandhi v. Union of India, has widened the horizon of Article 21 and added new dimensions to various features of and concept of liberty enshrined in Article 21. In view of the decision in the aforesaid case Article 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Article 21 has to be reasonable, fair and just, then the words 'effective representation' appearing in Article 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. If the words 'effective representation' are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Article 22 (5) but also of Article 21 of the Constitution. "
10. It is, thus crystal clear that in view of what has been laid down in Maneka Gandhi's case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test : (1) that the protection and the guarantee afforded under Article 22(5) is complied with, and (2) that the procedure is just and reasonable. In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu along with the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.
11. It is well settled that the Court frowns on preventive detention without trial because the detenu is deprived of the right of proving his innocence in a trial by a Court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. This is so, because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging, in anti-national activities like smuggling, etc.
12. We shall now consider the submissions made by the learned Additional Public Prosecutor placing reliance in AIR 1958 SC 163 (supra). It is no doubt true that, as per the text of the Judgment, to some extent an exception has been carved out vis-a-vis right of the detenu to be furnished with the facts taking recourse to Clause (6) of Article 22 of the Constitution of India. The right of detenu to be furnished with facts and particulars is subject to the limitation mentioned in Clause (6) and even if the grounds communicated are not as precise and specific as might be desired, the appropriate authority has right to withhold such facts of particulars, the disclosure of which is considered to be against public interest. There could be no dispute over the proposition laid down in this case. But basically, in the case at hand, the entire in-camera statements of witnesses "A" and "B" though recorded, copies of the same are not furnished to the delinquent. Even it is not the contention of the learned Additional Public Prosecutor that the copies have been supplied to the detenu of these statements excluding the objectionable portion therein as it was found to be not in the interest of public safety, as has been contended by the learned Additional Public Prosecutor. In addition to that, it is not even disputed that copies of verification of the statements have not been supplied to the detenu. In our view, the detaining authority could have supplied copies of the statements omitting the objectionable part of the statement having regard to the public safety and adhering to the limitation envisaged under Clause (6) of Article 22 of the Constitution of India. Therefore, we do not find any substance in the contentions raised by the learned Additional Public Prosecutor in this regard.
13. In this context, we would like to refer the decision of our High Court in Criminal Writ Petition No. 716 of 2004. As this Court has precisely dealt with the contentions raised by learned Additional Public Prosecutor, placing reliance on Clause (6) of Article 22 of the Constitution, in para 14 of the Judgment, this Court observed that "similarly the Apex Court has also considered right given to the Detaining Authority under Article 22(6) of the Constitution of India and in para 11 of the above referred Judgment observed thus :
"It was argued that under Article 22(6) the authorities are permitted to withhold facts which they consider not desirable to be disclosed in the public interest it was argued that, therefore, all other facts must be disclosed. In our opinion, that is not the necessary conclusion from the wording of Article 22(6). It gives a right to the detaining authority not to disclose such facts, but from that it does not follow that what is not stated or considered to be withheld on that ground must be disclosed and if not disclosed, there is a breach of a fundamental right. A wide latitude is left to the authorities in the matter of disclosure. They are given a special privilege in respect of facts which are considered not desirable to be disclosed in public interest. As regards the rest, their duty is to disclose facts so as to give the detained person the earliest opportunity to make a representation against the order of detention."
14. Then referring to the decision of the Apex Court in case of Lawrence Joachim Joseph D'Souza, it is observed that it is no doubt true that tenor of the observations made by the Apex Court in all these decisions demonstrate that the Detaining Authority is under constitutional obligation to furnish reasonably definite grounds as well as adequate particulars to detenu. However, right of the detenu to be furnished particulars is subject to limitation under Article 22(6) of the Constitution whereby disclosure of facts considered to be against the public interest can be withheld by the Detaining Authority. However, the Apex Court in the case of Kamla Kanhaiyalal Khushalani (cited supra) while considering Scheme of Article 22(5) of the Constitution has gone a step ahead and held that material and documents relied on in the order of detention are required to be supplied to the detenu along with grounds of detention and supply of grounds simpliciter would give detenu not a real, but merely an illusory opportunity to representation to the Detaining Authority. It is, therefore, evident that contentions canvassed by the learned Additional Public Prosecutor in this regard are misconceived and devoid of substance and cannot be accepted.
15. In the case before hand, therefore, in our considered opinion, admittedly, the copies of statements "A" and "B" having been not supplied to the detenu, so also copies of verification of the statements, the petitioner's right under Article 22(5) has violated and rendered illusory. This has materially affected his right to make effective representation. As a consequence of this, the order of detention passed by respondent No. 2 and approved by respondent No. 1 stands vitiated. The view which we have taken is fortified by the decision of our High Court in Shri Vijay Ramchandra Angre v. Shri S. M. Shangari and Ors., 2003(5) Mh.L.J. 481 : 2004 ALL MR (Cri) 1974. In that case, copies of verification were not furnished, so also the copies of in-camera statements and it was a case of non-supply of documents relied upon by the Detaining Authority which affected right of detenu under Article 22(5) of the Constitution and as a result of that, order of detention was liable to be quashed. Another decision of our High Court in Smt. Subhangi Tukaram Sawant v. Shri R. H. Mendonca, and Ors., 2001(3) Mh.L.J. (F.B.) 580 : 2001 ALL MR (Cri) 68, the order of detention was quashed and set aside on the ground that the in-camera statements were though recorded by Senior Police Officer and were verified by the Assistant Commissioner of Police, copies of verification of statements were not supplied. In the result, following order is passed.
ORDER Petition is allowed.
The order of detention under challenge dt. 10-9-2004 passed by the respondent No. 2 - the Commissioner of Police, Nagpur City, Civil lines, Nagpur and approved by respondent No. 1-State on 17-9-2004 is quashed and set aside.
Petitioner-detenu is ordered to be released forthwith if not required in any other case.
Rule is made absolute in the aforesaid terms.