Parasmal Jain @ Shanti Lal Jain vs Union Of India And Ors.
1989 Latest Caselaw 211 Del

JUDGMENT

Santosh Duggal, J.

(1) The petitioner. Parasmal Jain @ Shanti Lal Jain, detained pursuant to an order of detention, passed on 18th of July 1988 by Shri K.L. Verma, Joint Secretary to the Government of India, by virtue of powers, conferred under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (for short 'the Act'), challenges his detention by means of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking issuance of a writ of Habeas Corpus or any other appropriate writ, order or direction, quashing the aforesaid order of detention, and directing his release.

(2) The petitioner was placed under detention, on 29th July, 1988, in execution of the aforesaid detention order, passed as a sequel to recovery of Rs. 11 lakhs on 24th March 1988, from a room in Pamba Tourist Home, Ernakulam which was allegedly in possession of the petitioner.

(3) The challenge to the detention is made on a number of grounds, such as retraction of his confessional statement not having been brought to the notice of the detaining authority as also his explanation in respect to the recovery of sum of Rs. 11,00,000.00 in Indian currency seized from his residence, and further that his request for being allowed assistance of a lawyer having not been considered, thus depriving him of a right of effective representation. The contention further is that the representations made by him to the detaining authority firstly on 2nd September, 1988 and thereafter on 28th September, 1988 were not considered with the requisite promptitude, and that there was long drawn delay in disposal thereof and further that in spite of specific request having been made by means of his representation dated 28th September, 1988 for supply of copies of summons issued to S/Shri Bhandari, Manobar Lal and Joseph ; the same were not supplied. It is alleged that there is reliance or reference to the aforesaid summons, by the detaining authority, while passing the detention order. The plea is that in view of the inordinate delay already committed, inasmuch as this petition was filed on 4th November, 1988 by which lime the aforesaid documents demanded by the petitioner had not been delivered to him; his right had been prejudicially affected, inasmuch as even the representation made by him had been rejected, and supply of the documents hereinafter would be meaningless. There are other grounds such as some of the copies of the documents supplied being not legible as also the order being vitiated, having been passed after long lapse of time from the date of the alleged recovery, and that some of the documents supplied to him were in English language which was neither known to him nor understandable to him.

(4) At the time of hearing, however, Mr. Arora, while appearing for the petitioner did not press all the grounds taken in the writ petition. His main contention has been on two counts. He concentrated on the plea that in spite of the fact that there was specific request for supply of the documents in the nature of summons iss.ued to persons, named S/Shri Bhandari, Manohar Lal, A.K Kasim and Joseph in the representation made on 28th September, 1988 to the detaining authority till the time the writ petition had been filed ; copies of the summons issued to S/Shri Bhandari Manohar Lal and Joseph had not been supplied. He argued that in the grounds of detention, there is a clear and unambiguous reference to the statement of the aforesaid persons having been recorded and that there was no denial that these persons were examined after summons having been issued to them. Mr. Arora pointed out, by referance to the reply affidavit filed on behalf of the respondents in this regard, that the stand was not that the documents asked for were not relevant, or had not been relied upon, but that while replying two grounds (v) and (vi), all that is stated is that these have been supplied by means of a letter dated 31st October, 1988 of the Deputy Director of Enforcement, Madras served on the petitioner on 2nd November, 1988 through the Superintendent Jail Bangalore. Earlier while conveying the rejection of the representation of the petitioner vide memorandum dated 26th October, 1988 it was stated that whereas the summons issued to A.K. Kasim had already been supplied to the detenu vide paragraph 248 of the list of documents, enclosed with the grounds of detention; the Directorate of Enforcement had been directed to supply copies of the summons issued to S/Shri Bhandari, Manobar Lal and Joseph.

(5) The learned Counsel went on further to contend that apart from the fact that there is no denial of the fact that these summons were amongst documents relied upon or referred to in the grounds of detention and as such ought to have been supplied pari passu with the grounds of detention ; the settled position now is that even if they are the documents which have not been specifically relied upon or referred to or were not the basis of the grounds of detention, even then on specific demand they have to be supplied and then it was not open to the detaining authority to contend that the documents were not relevant for the purpose of an effective representation. Mr. Arora produced a copy of a judgment In Cr. W. 575/87, Uttam Chandra Dass v. Union of India and others, and Cr. W. 576/87, Buddhudev Dass v. Union of India and others, decided on June 27, 1988 wherein a learned single Judge of this Court has held; on a summing of the case law, and taking note of the judgments of this Court in Vinod Kumar Arora v. The Administrator, Union Territory of Delhi and others, 1984 Cr. L J 1344 (DB); Y. Kumar v. Union of India and others, 1984 Cr. L J 1350 (DB); P. Moidu Haji and another v.Union of India and others, 1985 Cr. L J 1430 (DB); and Govind Ram v. Union of India and others, 1985 (1) Crimes 776, held that once the detenu makes a specific request in his representation for certain documents, which find a mention in the grounds of detention, it becomes incumbent upon the detaining authority to supply the same to the detenu and in that event it cannot embark upon any debate as to whether the documents were such as relied upon or referred to in the grounds of detention and that this has to be left to the detenu to see as to whether how to utilize the documents, asked for by him while preparing or putting forward his defense.

(6) It is to be noted that one of the documents in question ; in cases : Uttam Dass and Buddhudev Dass (supra), was copy of the summons issued under Section 108 of the Customs Act, as in the present case. The learned single Judge held that the proposition propounded by the Supreme Court in Rafendra kumar Natvarlal Shah v. State of Gujarat and others, , (also referred to in the present case by Mr. U.L. Watwani, counsel for the respondents), was not applicable to cases where documents have been requested for or demanded by the detenu, because the Supreme Court was dealing with an entirely different question, namely, of the plea that documents under reference there ought to have been supplied, along with the grounds of detention, and it was in that context that it was held that it was open to the detaining authority to determine as to what documents had been relied upon or referred to by him while passing the detention order, and that the said authority was obliged to supply only such documents as were the basis of grounds of detention For the same reasons, the judgment referred to by Mr. Watwani to counter the arguments of Mr. Arora, reported in 1988 (2) Delhi Lawyer 429 ; Joginder Singh v. Union of India and others, is not apposite, as the Court there was considering a question of supply of documents pari passu the grounds of detention and it was not a case where the Court was concerned with the case of noneupply or late supply supply of the documents, specifically demanded by the detenu.

(7) The case here is altogether different, namely, that of a request having been made with the specific plea that the detenu regarded those documents to be material for the purpose of more detailed and effective representation It has already been pointed out that the case of the respondents in the counter is not that the documents, were not referred to or relied upon, or were irrelevant, but that one of them bad already been supplied with the grounds of detention, which means that the detaining authority considered it to be of such a relevance, as to be supplied pari passu with the grounds of detention, and regarding the rest the detenu was informed that the concerned office, namely, office of Directorate of Enforcement has been directed to supply the same. It is now revealed that these reached the detenu only on 2nd November, 1988. It is on record, as also confirmed by the details given in the reply affidavit that the representation of the detenu had been rejected by the detaining authority on 26th October, 1988, and that the order of confirmation in exercise of powers under Section 8(f) of the Act had also been passed on 26th October, 1988.

(8) Mr. Arora then pursued his argument that on respondents' own showing these documents were conceded relevant or material for the detenu, to enable him to make an effective representation, because even while conveying rejection of the representation, he was told that the documents were being supplied to him; though as a fact, these were supplied after his representation had been rejected and order for confirmation had also been passed. The learned Counsel produced a copy of the judgment of the Supreme Court, during the course of arguments, in writ petition No. 454/86 and Special Leave Petition (Crl) 2306/86; Bhupinder Singh v. Union of India and others, wherein it was held in clear and unambiguous terms that in cases, the documents which were asked for by the detenu, are supplied after detention order was confirmed, then it becomes a case were he is clearly denied the opportunity of making a fruitful representation, and it becomes a case of clear contravention of the rights guaranteed to him by the Constitution and the detenu becomes entitled to be set at liberty. Similarly, there are judgments of this Court to the effect that documents asked for by the detenu, if supplied after the meeting of the Advisory Board or rejection of the representation; then his continued detention becomes vitiated and then detenu becomes entitled to be freed.

(9) In view of this established position, and on the face of admitted facts, that the documents asked for by the detenu were supplied both after the rejection of the representation and after the order of confirmation bad been passed. I find it to be a case, where the petitioner is to succeed on this ground alone. As such I do not find it necessary in this case to examine the other contention, namely, the continued detention being vitiated on account of the fact that the representation made by the detenu was rejected by the detaining authority, namely, Shri K.L Verma, Joint Secretary to the Government of India, at his own level and not put up to the Central Government. It may only say in passing that the contention as put forward, does not seem to available on the facts of this case, ann the question being of far-reaching implication, it be better left to be examined in detail, in an appropriate case.

(10) In view of the foregoing finding, on the point of non-supply of documents asked for by the detenu, within a reasonable time and with due dispatch; particularly when these have been supplied after the representation was rejected and the detention order had been confirmed, I find it to be a case where the continued detention of the petitioner stands vitiated. The petition is accordingly allowed and the rule is confirmed with the directions that the petitioner be set at liberty forthwith, if not required in any other case.

(11) No order as to costs.