Union Of India vs Ranu Bhandari

(COFEPOSA), Government of India, Ministry of

Finance, Department of Revenue, New Delhi, issued

an order of detention against Shri Sanjay Bhandari,

the husband of the respondent/writ petitioner,

under Section 3(1) of the Conservation of Foreign 2

Exchange and Prevention of Smuggling Activities

Act, 1974, (hereinafter referred to as "COFEPOSA"),

to prevent the detenu from smuggling goods in

future.

3. The facts which are said to have led to the

passing of the detention order are briefly

summarized hereunder.

4. Shri Sanjay Bhandari obtained Export Promotion

Capital Goods Scheme (E.P.C.G.) licences as

Service Provider in respect of four firms/companies

which were floated by him from time to time and

imported vehicles at concessional rates for

personal use in flagrant misuse of the said

licences. The said vehicles were never used for

tourist purposes as declared for obtaining the

E.P.C.G. licences and the Foreign Inward Remittance

Certificate shown by him did not relate to his

earnings from the use of the imported cars. In

addition to the above, all the vehicles which were 3

imported under the aforesaid licences were

registered as private vehicles.

5. Shri Sanjay Bhandari was found to have violated

various provisions/conditions of the Exim Policy,

Foreign Trade Policy and Customs exemptions

notifications and during the investigations

conducted by the Directorate of Revenue

Intelligence, 51 out of 61 vehicles were seized,

though most of them were released provisionally on

payment of differential duty and execution of Bonds

and Bank Guarantees. Shri Bhandari's said

activities were held to amount to smuggling as

defined in Section 2(39) of the Customs Act as

adopted in Section 2(e) of the COFEPOSA Act, 1974.

Considering the nature and gravity of Shri

Bhandari's activities over a period of time and his

high potentiality and propensity to indulge in such

prejudicial activities in future, the order of

detention was issued against him on 15th December,

2005, under Section 3(1) of the COFEPOSA Act, 1974. 4

6. Aggrieved by the order of detention, the

detenu's wife, Ranu Bhandari, filed a Habeas Corpus

petition before the Delhi High Court challenging

the legality of the same mainly on the ground of

non-supply of various documents, which according to

the respondent, prevented the detenu from making an

effective representation to the detention order.

Being satisfied that certain relevant documents

which had been considered by the Detaining

Authority while issuing the detention order had not

been supplied to the detenu to make an effective

representative against his continued detention, the

High Court allowed his Writ Petition and quashed

the detention order dated 15th December, 2005, which

has been challenged in the appeal.

7. The Union of India is in appeal against the

judgment and order of the High Court.

8. Learned Additional Solicitor General, Mr. A.

Sharan, questioned the decision of the High Court

on the ground that all the documents which had 5

been considered by the Detaining Authority and

found to be relevant in issuing the detention

order, had been indicated in the detention order

and supplied to the detenu. Furthermore, it was

pointed out by the learned Solicitor General that

the documents which were not supplied originated

from the detenu himself.

9. The learned Additional Solicitor General

submitted that the question as to what documents

were required to be supplied to a detenu along

with the detention order has fallen for

consideration of this Court in innumerable cases.

The consistent view which has been taken by this

Court is that documents which had been relied upon

by the Detaining Authority to come to a decision

that it was necessary to issue the order of

detention, would have to be supplied to the detenu

to enable him to understand the grounds on which

the detention order had been passed and to make an

effective representation in respect thereof, in

keeping with Article 22(5) of the Constitution. 6

10. The learned Additional Solicitor General also

submitted that apart from the aforesaid view of

general application, two other views had also been

taken by this Court. One view was that all

documents referred to or mentioned in the detention

order would have to be supplied to the detenu and

if even one of them was not supplied, the detention

order would stand vitiated. The other view was that

except for the documents which were relevant and

had been relied upon by the Detaining Authority in

passing the detention order, other documents

mentioned in the detention order or referred to

therein were not required to be supplied to the

detenu. The learned Additional Solicitor General

reiterated that in the instant case all the

documents on which the Detaining Authority had

relied while issuing the detention order, had been

duly supplied to the detenu, who, however, insisted

that he should have also been provided with certain

documents which were within his knowledge. The

said documents had been itemised as his

representation dated 12.12.2005, the show-cause 7

notice dated 22.7.2004 which had been received by

him, his writ petition No.5431 of 2002 and the

I.E.C. Code pertaining to the three proprietorship

firms belonging to him, which had not been placed

before the Detaining Authority. It was submitted

that not only did the detenu have knowledge of all

the said documents, but they were available with

the detenu.

11. In support of his aforesaid contention the

learned Additional Solicitor General firstly relied

on the decision of this Court in Radhakrishnan

Prabhakaran vs. State of Tamil Nadu [(2000) 9 SCC

1790], wherein while considering an identical

question this Court, inter alia, observed as

follows:

"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 more 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 necessary shall be supplied to him."

8 It was also observed that since the bail

application of the detenu had not engaged the

attention of the Detaining Authority while passing

the detention order, the non-supply or non-

placement thereof before the Detaining Authority

would not vitiate the detention order.

12. The learned Additional Solicitor General also

referred to and relied upon the decision of this

Court in J. Abdul Hakeem vs. State of T.N. and

others [2005) 7 SCC 70], wherein after considering

some of the earlier decisions of this Court, the

learned Judges quoted, with approval, the decision

of this Court in Radhakrishnan Prabhakaran's case

(supra) and the observations made therein.

13. Relying on the aforesaid view, this Court had

held that although the copy of the passport

of the detenu had not been supplied to him,

though reference had been made to the same in 9

the detention order, what had weighed with

the Detaining Authority in issuing the

detention order was a statement made by the

detenu in his own hand-writing admitting that

he had made several visits outside the

country. The reference to the passport

entries had been made only by way of

reference and was not the basis of the

detention order. On the facts of the said

case, being of the view that non-supply of

the passport of the detenu had not

prejudicially affected his right to make an

effective representation against the order of

detention, it was held that the non-supply of

the copy of the passport would not vitiate

the detention order.

14. Further reference was made to the decision of

this Court in Sunila Jain vs Union of India

[(2006) 3 SCC 321], wherein also several

decisions of this Court were considered,

including that of Radhakrishnan Prabhakaran 10

(supra), and it was held that non-placement

of a copy of the bail application of the

detenu before the Detaining Authority was not

sufficient to vitiate the order of detention,

since the same was within the knowledge of

the Detaining Authority and had been taken

into consideration while passing the

detention order.

15. The learned Additional Solicitor General

urged that the instant case would fall within that

class of cases wherein this Court has held that

non-supply of all the documents mentioned in the

detention order, which had no relevance in regard

to the Detaining Authority's satisfaction in

passing the order of detention, would not vitiate

the same. It was submitted that the High Court had

erroneously proceeded on the basis of the other

class of cases wherein this Court had held that

even if one of the grounds of detention was found

to be vague or defective or any of the documents on

which reliance had been placed by the Detaining 11

Authority had not been supplied to the detenu, it

would vitiate the detention order, although the

same did not apply in the facts of this case. It

was submitted that the impugned order of the High

Court was contrary to the views expressed by this

Court in similar matters and the same was,

therefore, required to be set aside.

16. The judgment and order of the High Court was,

however, strongly defended on behalf of the

respondent-wife of the detenu. It was submitted by

Mr. Vikram Chaudhary, learned counsel appearing for

the respondent, that this Court had consistently

held that since an order of detention adversely

affected the personal liberty and individual

freedom of a citizen and struck at the very roots

of the fundamental rights guaranteed under Articles

19, 20, 21 and even 22 of the Constitution, the

same had to be carefully scrutinized when

challenged by the detenu on any of the grounds

available to him or her.

12

17. It was submitted that in the instant case

certain vital documents which could have had

a bearing on the decision of the Detaining

Authority while passing the detention order,

had not been placed before the Detaining

Authority as the same were in the detenu's

favour and upon considering the same the

Detaining Authority may not have issued the

said detention order. Mr. Chaudhary

submitted that the representation which had

been made by the detenu on 12.12.2005, the

agreement dated 9.11.07 executed between the

detenu and his agents for using the resort

for which the vehicles had been imported, the

relevant portions of the Settlement

Commission's order by which the detenu had

been absolved of all criminal proceedings,

and the writ petition filed by the detenu,

would have convincingly placed the case of

the detenu before the Detaining Authority had

they been before the said Authority for

consideration. It was further submitted that 13

non-supply of the said documents,

irrespective of whether they had originated

from the detenu himself, had prevented the

detenu from making an effective

representation against the detention order,

since without having the documents in front

of him, it was not possible for the detenu to

remember the contents of the said documents

in their entirety, which contained in detail

the stand of the detenu. By depriving the

detenu of the said documents he was deprived

of the right guaranteed to him under Article

22(5) of the Constitution which was mandatory

and any breach thereof had been held by this

Court to be sufficient to vitiate the

detention order.

18. Mr. Chaudhary derived support for his

aforesaid contention from the decision of

this Court in M. Ahamedkutty v. Union of

India [(1990) 2 SCC 1], wherein it was

reiterated that the right under Article 22(5)

is a right to make an effective 14

representation and when some documents are

referred to or relied on in the grounds of

detention, without copies of such documents,

the grounds of detention would not be

complete. The detenu, therefore, had the

right to be supplied with the grounds of

detention along with the documents which were

referred to or relied upon and if there was

failure or even delay in furnishing those

documents, it would amount to denial of

making an effective representation. It was

also observed that it was immaterial whether

the detenu already knew about their contents

or not, but the non-supply of the copies

thereof was fatal as was held in Mehrunissa

v. State of Maharashtra [(1981) 2 SCC 709].

It was emphasised that in order to appreciate

this point it would have to be kept in mind

that the detenu is in jail and has no access

even to his own documents.

19. Learned counsel submitted that in the case of

Ashadevi wife of Gopal Ghermal v K.Shivraj 15

[(1979) 1 SCC 222], this Court had indicated

that if material or vital facts, which could

influence the mind of the Detaining Authority

one way or the other on the question whether

or not to issue the detention order, are not

placed before the Detaining Authority or are

not considered by the said authority, it

would vitiate its subjective satisfaction

rendering the detention order illegal.

20. Learned counsel submitted that the said

view had thereafter been consistently

followed, with minor variations, since the

personal liberty of a citizen was

prejudicially affected by the passing of a

detention order which enabled the State

authorities to detain a citizen without a

trial. Learned counsel submitted that, in

fact, the Detaining Authorities have been

held to the rigors of the detaining

enactments while passing detention orders as

would also be clear from the decision of this 16

Court in Sk. Nizamuddin v State of West

Bengal [(1975) 3 SCC 395], where the delay

of two and a half months in detaining the

petitioner therein pursuant to the orders of

detention, was held to cast considerable

doubts on the genuineness of the subjective

satisfaction of the detaining magistrate and

prompted this Court to quash the detention

order.

21. Learned counsel submitted that the views

expressed in Ashadevi's case (supra) and in

various other similar cases were subsequently

referred to and relied upon in State of U.P.

v Kamal Kishore Saini [(1988) 1 SCC 287],

while quashing the detention order impugned

in the said case.

22. Learned counsel for the detenu lastly

contended that when the Settlement Commission

set up under the Customs Act, 1962, had

absolved the detenu from all criminal 17

prosecution after a settlement had been

reached, the Detaining Authority had issued

the detention order only with the intention

of by-passing the order of the said

Commission and rendering the same

ineffectual. It was submitted that in such

circumstances no interference was called for

with the order of the High Court which had

rightly quashed the order of detention issued

against the detenu on 12.12.2005.

23. Keeping in mind the fact that of all human

rights the right to personal liberty and

individual freedom is probably the most

cherished, we can now proceed to examine the

contention advanced on behalf of the parties

in the facts and circumstances of this case.

But before we proceed to do so, it would be

apposite to reproduce herein below a verse

from a song which was introduced in the

cinematographic version of Joy Adamson's

memorable classic `Born Free', which in a few 18

simple words encapsulate the essence of

personal liberty and individual freedom and

runs as follows:

"Born free, as free as the wind blows, As free as the grass grows, Born free to follow your heart. Born free and beauty surrounds you, The world still astounds you, Each time you look at a star. Stay free, with no walls to hide you, You're as free as the roving tide, So there's no need to hide.

Born free and life is worth living, It's only worth living, if you're born free."

24. The aforesaid words aptly describe the

concept of personal liberty and individual

freedom which may, however, be curtailed by

preventive detention laws, which could be

used to consign an individual to the

confines of jail without any trial, on the

basis of the satisfaction arrived at by the

Detaining Authority on the basis of material

placed before him. The Courts which are 19

empowered to issue prerogative writs have,

therefore, to be extremely cautious in

examining the manner in which a detention

order is passed in respect of an individual

so that his right to personal liberty and

individual freedom is not arbitrarily taken

away from him even temporarily without

following the procedure prescribed by law.

25. We have indicated hereinbefore that the

consistent view expressed by this Court in

matters relating to preventive detention is

that while issuing an order of detention,

the Detaining Authority must be provided

with all the materials available against the

individual concerned, both against him and

in his favour, to enable it to reach a just

conclusion that the detention of such

individual is necessary in the interest of

the State and the general public. It has

also been the consistent view that when a

detention order is passed all the material 20

relied upon by the Detaining Authority in

making such an order, must be supplied to

the detenu to enable him to make an

effective representation against the

detention order in compliance with Article

22(5) of the Constitution, irrespective of

whether he had knowledge of the same or not.

These have been recognized by this Court as

the minimum safeguards to ensure that

preventive detention laws, which are an evil

necessity, do not become instruments of

oppression in the hands of the concerned

authorities or to avoid criminal proceedings

which would entail a proper investigation.

26. In most cases the decision of this Court

have gone in favour of detenu when even one

of the grounds of detention did not satisfy

the rigors of proof of its genuineness as a

foundational fact in support thereof. The

decisions rendered in Ashadevi's case

(supra), Mehrunissa's case (supra), Ayya @ 21

Ayub's case [(1989) 1 SCC 374] and

Ahamedkutty's case, all referred to

hereinbefore, have relied on the principle

that although the State is empowered to

issue orders of preventive detention, since

the liberty of an individual was in

question, such power should be exercised by

the Detaining Authority on consideration of

relevant material, both against and in

favour of the individual concerned, to

arrive at a just conclusion that his

detention was necessary in the interest of

the public and to prevent him from

continuing to indulge in activities which

are against the public interest and the

interest of the State.

27. This brings us to the next question as to

whether even such material as had not been

considered by the Detaining Authority while

issuing the detention order, is required to

be supplied to the detenu to enable him to 22

make an effective representation against his

detention.

28. The decisions cited by the Learned

Additional Solicitor General in support of

his contention that all documents mentioned

in the detention order were not required to

be served on the detenu, such as in J. Abdul

Hakeem's case (supra), takes note of the

earlier decisions in Ahamedkutty's case

(supra) and Radhakrishnan Prabhakar's case

(supra) which had make it mandatory for the

Detaining Authority to supply copies of all

documents which had been relied upon by the

Detaining Authority to the detenu, whether

he had knowledge of their contents or not. Of course, in Radhakrishnan Prabhakar's case

(supra) it was also made clear that there is

no legal requirement that a copy of every

document mentioned in the order has to be

supplied to the detenu. What is, therefore,

imperative is that copies of such documents 23

which had been relied upon by the Detaining

Authority for reaching the satisfaction that

in the interest of the State and its

citizens the preventive detention of the

detenu is necessary, have to be supplied to

him. Furthermore, if in this case, the

detenu's representation and writ petition

had been placed before the Detaining

Authority, which according to the detenu

contained his entire defence to the

allegations made against him, the same may

have weighed with the Detaining Authority as

to the necessity of issuing the order of

detention at all.

29. We are inclined to agree with the

submissions made on behalf of the respondent

that, notwithstanding the nature of the

allegations made, he was entitled to the

assurance that at the time when the

detention order was passed all the

materials, both for and against him, had 24

been placed for the consideration of the

Detaining Authority and had been considered

by it before the detention order was passed,

having particular regard to the orders

passed by the Settlement Commission

appointed under the provisions of the

Customs Act, 1962, which absolved the detenu

from all criminal prosecution.

30. In the instant case, as some of the vital

documents which have a direct bearing on the

detention order, had not been placed before

the Detaining Authority, there was

sufficient ground for the detenu to question

such omission. We are also of the view that

on account of the non-supply of the

documents mentioned hereinbefore, the detenu

was prevented from making an effective

representation against his detention.

31. In the said circumstances, we do not see any

reason to interfere with the judgment and 25

order of the High Court and the appeal is

accordingly dismissed.

32. In parting, we may reiterate what we have

indicated hereinbefore, that since the

personal liberty and individual freedom of a

citizen is curtailed by an order of

preventive detention, the Detaining

Authorities must apply their minds carefully

and exercise great caution in passing such

an order upon being fully satisfied from

materials which are both for and against the

detenu that such an order is required to be

passed in the interest of the State and for

the public good.

.............................................J. (ALTAMAS KABIR)

.............................................J. (MARKANDEY KATJU) New Delhi Dated: 16.9.2008