Thahira Haris Etc.Etc vs Govt.Of Karnataka & Ors

CRIMINAL APPEAL NOs. 723-724 OF 2009 [Arising out of Special Leave to Appeal (Crl.) Nos.9052-9053 of 2008]

Thahira Haris etc. ... Appellants

Versus

Government of Karnataka & Others ... Respondents

JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

2. These appeals are directed against the judgment dated

8th November, 2008 passed by the High Court of Karnataka at

Bangalore in Writ Petition (Habeas Corpus) Nos.79-80 of 2008

by which both the writ petitions were dismissed. We propose

to dispose of both the appeals by this judgment. 2

3. These writ petitions (Habeas Corpus) were filed by Mrs.

Thahira Haris, wife of the detenu B. Mohammed Haris

challenging the order of detention dated 24th May, 2008

passed by the Additional Secretary & Principal Secretary to

the Government of Karnataka, Home Department, Vidhana

Soudha, Bangalore on a number of grounds. Grounds 15 and

17 relate to the detenu. The main allegation against the

detenu is abetting in smuggling of red sanders out of the

country.

4. In pursuance to the show cause notice issued by the

Division Bench 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;

3 (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 sanders as

described above". In this light, we would examine whether it

was imperative for the detaining authority to supply document

at Sl. No. 90 i.e. detention order of Anil Kumar, the master

mind. It may be pertinent to mention that the order of

detention was passed against Anil Kumar on 13.9.2004.

According to the detaining authority, Anil Kumar is the master

mind in the entire operation and allegation against the detenu 4

is of abetting him in smuggling, therefore, any order of

detention passed against Anil Kumar assumes great

significance and the same would weigh heavily with the

detaining authority while passing the detention order.

7. Admittedly, the order of detention of Anil Kumar dated

13.9.2004 was not supplied to the detenu. The document

mentioned at serial number 90 is the detention order dated

13.9.2004 of Anil Kumar, the master mind, whereas the

document supplied to the detenu was only the confirmation

order dated 29.1.2005 passed under section 8 of the

COFEPOSA Act. Both are different and distinct and,

therefore, the High Court was wrong in holding that the

detention order and confirmation order was one and the same.

The period of detention in such case would be reckoned from

13.9.2004 and not from 29.1.2005.

8. It is interesting to note that even according to the learned

Additional Government Advocate, who has represented the

detaining authority before the High Court, the detention order

of Anil Kumar and Kannan was relevant. The Division Bench 5

noted the submission of the detaining authority, which is

reflected in para 14 of the judgment and reads as under:

"....The role of Anil Kumar and Kannan being clear in the instant case, their past activities and detention orders were relevant......"

9. According to the detaining authority, copy of the

detention order issued under COFEPOSA is a relied upon

document. This document was admittedly not supplied to the

detenu. Now it has become imperative to examine the settled

law crystallized by a catena of judgments of this Court. Some

of the ratios of those judgments are recapitulated as under.

10. More than half a century ago, the Constitution Bench of

this Court has interpreted Article 22(5) of the Constitution in

Dr. Ram Krishan Bhardwaj v. The State of Delhi and Ors.

1953 SCR 708 observed as under:

".......Preventive detention is a serious invasion of personal liberty and such meager safeguards 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 6

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). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

This Article of the Constitution can be broadly classified into

two categories: (i) the grounds on which the detention order is

passed must be communicated to the detenu as expeditiously 7

as possible and (ii) proper opportunity of making

representation against the detention order be provided.

12. In Shalini Soni (Smt.) & Others v. Union of India and

Others (1980) 4 SCC 544, this Court aptly observed that the

accused must have proper opportunity of making an effective

representation. The Court observed thus:

"....Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, It is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the 8

subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds 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 detenu as part of the 'grounds'.

13. This Court in Icchu Devi Choraria (Smt.) v. Union of

India & Others (1980) 4 SCC 531 in para 6, dealt with in

great detail the significance of clause (5) of Article 22 and sub-

section 3 of section 3 of the COFEPOSA Act. The court

observed as under:

9

"Now it is obvious that when Clause (5) of Article 22 and Sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated, in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Clause (6) of Article 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of Clause (5) of Article 22 read with Section 3, Sub- section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to Clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requirement of Clause (5) of Article 10

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 & 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 by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted 11

by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority."

15. In Vakil Singh v. State of J & K & Another (1975) 3

SCC 545, the court clarified that grounds meant materials on

which the order of detention was primarily based, that is to

say, all primary facts though not subsidiary facts or evidential

details.

16. In Ganga Ramchand Bharvani v. Under Secretary to

the Government of Maharashtra & Others (1980) 4 SCC

624, the court in para 16 observed as under:

"The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned Counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds 'of detention', the detenus could not make an effective representation 12

and there is disobedience of the second constitutional imperative pointed out in Khudiram's case. There is merit in this submission."

17. In S. Gurdip Singh v. Union of India & Others (1981)

1 SCC 419, this court, while reiterating the legal position,

observed that failure to furnish documents or materials which

formed the basis of detention order along with grounds of

detention and even on demand subsequently made by the

detenu would amount to failure to serve grounds of detention

and, therefore, would vitiate the detention order and make it

void 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 13

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 'grounds' to be communicated to the detenu. But this requirement is to be read in conjunction with and subservient to the primary mandate: "and shall afford him the earliest opportunity of making a representation against the order", in the aforesaid Clause (5). Thus construed, it is clear that in the context, 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. All the basic facts and material particulars, therefore, which have influenced the detaining authority in making the order of detention, will be covered by "grounds" within the contemplation of Article 22(5) and Section 8, and are required to be communicated to the detenu 14

unless their disclosure is considered by the authority to be against public interest."

20. This Court in Mohd. Alam v. State of West Bengal

(1974) 4 SCC 463 in para 19 observed that the non-

communication of that material was violative of Article 22(5) of

the Constitution and the Act inasmuch as it did not intimate

to the detenu the full grounds or material to enable him to

make an effective representation.

21. This Court in Kirit Kumar Chaman Lal Kundaliya v.

Union of India & Others (1981) 2 SCC 436 (para 12)

observed that once the documents are referred to in the

grounds of detention it becomes the bounden duty of the

detaining authority to supply the same to the detenu as part

of the grounds or pari passu the grounds of detention.

22. In the case of Ramchandra A. Kamat v. Union of

India & Others (1980) 2 SCC 270, this Court clearly held

that even the documents referred to in the grounds of

detention have to be furnished to the detenu. 15

23. In Tushar Thakker (Shri) v. Union of India & Others

(1980) 4 SCC 499, this Court mentioned that the detenu has a

constitutional right under Article 22(5) to be furnished with

copies of all the materials relied upon or referred to in the

grounds of detention, with reasonable expedition.

24. In Ram Baochan Dubey v. State of Maharashtra and

Another (1982) 3 SCC 383, this Court reiterated the legal

position and observed that mere service of the grounds 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 & 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.

16

26. In District Collector, Ananthapur & 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 provides adequate safeguards under

clauses (5) and (6) of Article 22 to the detenu who has been

detained in pursuance of the order made under any law

providing for preventive detention. He has right to be supplied

copies of all documents, statements and other materials relied

upon in the grounds of detention without any delay. The

predominant object of communicating the grounds of

detention is to enable the detenu at the earliest opportunity to 17

make effective and meaningful representation against his

detention.

29. On proper construction of clause (5) of Article 22 read

with section 3(3) of COFEPOSA Act, it is imperative for valid

continuance of detention that the detenu must be supplied all

documents, statements and other materials relied upon in the

grounds of detention. In the instant case, admittedly, the

relied upon document, the detention order of Anil Kumar was

not supplied to the detenu and the detenu was prevented from

making effective representation which has violated his

constitutional right under clause (5) of Article 22 of the

Constitution.

30. Consequently, we accept these appeals. The impugned

detention order is quashed and the detenu is directed to be

released forthwith, if not required in any other case.

31. The appeals are disposed of accordingly 18

.................................J. (Dalveer Bhandari)

.................................J. (Asok Kumar Ganguly) New Delhi;

April 15, 2009.