1. The detenu Gopaldas H. Pandit @ Gopal Sharma is detained under the COFEPOSA Act vide order Dt. 13th April 1981. On the same day grounds of detention were also served on the detenu. The detenu made a representation against this order of detention on 1st of July, 1981, which was addressed to the Minister of State for Home Affairs, State of Maharashtra. It appears that this representation was presented by the counsel for the detenu personally. The said representation came to be rejected on 18th July, 1981. In due course the detenu appeared before the Advisory Board and in pursuance of the opinion expressed by the Advisory Board his detention was also confirmed. In the present petition the detention order issued on 13th April 1981 as well as the continued detention of the detenu is challenged by the petitioner on various grounds.
2. Mr. Canteenwala, learned counsel appearing for the petitioner contended before us that the continued detention of the detenu is illegal, as the representation made by the detenu was not considered expeditiously. According to the learned counsel, there has been undue and unexplained delay in considering the said representation. In support of this contention the learned counsel has placed reliance upon the various decisions of the Supreme Court including the decisions in Harish Pahwa v. State of U.P. : 1981CriLJ750 and in Smt. Khatton Begum v. Union of India : 1981CriLJ606 . Mr. Canteenwala also contended that the mass of the records furnished by the detaining authority contains innumerable pages which are not even legible or readable. He has drawn our attention to the averments made in the petition wherein the details of these documents are given. He also contended that from the affidavit filed by the detaining authority it is clear that these documents were considered and relied upon for the purpose of detention. According to the learned counsel, supplying illegible documents amounts to non-supply of documents and, therefore, the order of detention is wholly void. In support of this contention he has relied upon the decision of the Supreme Court in Kirit Kumar Chamanlal Kundaliya v. Union of India : 2SCR718 as well as other decisions. Mr. Canteenwala further contended that some of the documents were not supplied in a language which the detenu understood and on that count also the continued detention of the detenu is illegal.
3. According to Mr. Canteenwala, the detention is also vitiated because of the non-application of mind to the material facts and circumstances. The detaining authority has not taken into consideration the plea of alibi raised by the detenu together with the medical records and other certificates. A conclusion is reached by the detaining authority about the ownership and possession of the second floor of the building when there is no material on record from which an inference could be drawn that at the relevant time the detenu was concerned with the possession of the premises. According to the learned counsel it is quite clear from the various documents placed on record that the Fagon Company Pvt. Ltd. had filed a suit against the detenu and his son and had obtained an injunction restraining them from entering into the premises in dispute. This was a material fact which the detaining authority did not take into consideration. Once there was in the field an order of injuction passed by the competent Court of law, it cannot be reasonably concluded or inferred that the detenu had an access to the premises in dispute and non-consideration of this material fact must vitiate the subjective satisfaction arrived at under Section 3 of the Act. The learned counsel further contended that the grounds of detention are also factually baseless and the satisfaction is wholly based on conjectures. He also contended that in the affidavit, for the first time the detaining authority has tired to make out a new case by contending that the Fagon Co. Pvt. Ltd. was a concern of the detenu's son and the documents on which reliance is being placed by the detenu are bogus. According to the learned counsel, the detaining authority cannot be permitted to make out an altogether new case for the first time at the time of hearing.
4. On the other hand, it is contended by Mr. Kotwal, the learned Public Prosecutor that the representation made by the detenu was considered by the detaining authority as expeditiously as possible. The said representation was presented in person to the State Minister of Home on 1st July 1981. The detenu was informed in categorical terms by para 30 of the grounds of detention that if he wishes to make any representation against the detention order, he should do so and address it to the Assistant Secretary to the Government of Maharashtra, Home Department and that too through the Superintendent of Jail. Instead of following this usual procedure the detenu chose to present his representation through his counsel personally. After the receipt of the said representation on 1st July 1981 it was required to be sorted out and sent to the concerned department. The representation was, therefore, received by the Home Department on 3rd July, 1981. As the Home Department also receives large number of correspondence every day, it was required to be sorted out and ultimately the representation was forwarded to there concerned section on 7th July, 1981, 5th of July, 1981 being Sunday. Then by a letter dt. 7th July, 1981 comments from the Customs Department were invited and the said comments were received in the Home Department on 10th July, 1981. The offices of the Mantralaya were closed on 11th and 12th July 1981 being second Saturday and Sunday and hence the comments together with the representation were forwarded to the Minister of State for Home on 13th July, 1981. However, the Minister of State for Home was on tour of Satara District from 12th July, 1981 to 17th July, 1981. On his return the Minister of State rejected the said representation on 18th July, 1981 and on the same day the order of rejection was communicated to the detenu's Advocate. Thus, according to Mr. Kotwal, there was no delay in considering the said representation. In support of his contention, Mr. Kotwal has placed reliance upon an unreported decision of the Supreme Court in Smt. Masuma v. State of Maharashtra Criminal Writ Petn. No. 1892 of 1981 decided on 12th August, 1981 : 1981 Cri LJ 1256.
5. So far as the grievance made about the supply of copies of documents, which are wholly illegible and unreadable, is concerned, Mr. Kotwal placed reliance upon the additional affidavit filed by Mr. A. N. Batabyal, Secretary to the Government of Maharashtra, Home Department Dt. 18th September, 1981, wherein it is stated that all the statements and documents which were considered and relied upon for the purpose of detention were supplied to the detenu. While dealing with these documents it is stated in the affidavit that the meter reading card was relied upon by the detaining authority together with the statement of Mr. Musal. So far as Bombay Taxi Driver Daily Register and the entry made therein is concerned, it is contended that the said entry was relied upon together with the statement of Mr. D. R. Patel and the relevant entry was clearly legible. So far as the Register maintained by the traffic Police is concerned, it is contended in the affidavit that it is relied upon for the purpose of corroboration of the statement made by Adam Gafoor Dalvie. So far as the copy of the passengers' manifest in respect of Scandinavian Airline Flight is concerned, it is contended that though the document was considered by the detaining authority while passing the order of detention, the same was not relied upon. So far as the last document dealing with the transfer of telephone connection is concerned, it was contended that it was legible. Thus, according to Mr. Kotwal, it cannot be said that there is any failure to supply the relevant documents and hence the grievance made by the petitioner that it was not possible for him to make an effective representation is not correct. According to Mr. Kotwal, even if it is assumed that some of the documents are wholly illegible, then also only those grounds, which are based on these documents could be held as invalid and the order can be sustained on other grounds, in view of the provision of Section 5A of COFEPOSA Act.
6. So far as the grievance made regarding the supply of documents in the language which the detenu did not understand is concerned, it is contended by Mr. Kotwal that the documents were supplied to the detenu either in English or Hindi and at no time a grievance was made by the detenu that he does not understand English or Hindi. Further from the statement made by the detenu before the detaining authority it is clear that he knew Hindi very well. In reply to the argument based on non-application of mind it is contended by Mr. Kotwal that all the relevant documents were considered by the detaining authority, which included certificates produced by the detenu. From the material placed on record, including the statements of detenu's servants it is clear that the detenu was in Bombay at the relevant time. The keys of the premises were with the detenu or his wife. The detenu himself was responsible for storing the goods in the premises concerned. From the statement of Kashmirilal as well as the entries relating to the telephone calls, it is clear that the detenu and his family members were in possession of the premises. At no time till this petition was filed, either the copy of the plaint or the injunction order issued by the Court in Civil Suit was placed before the detaining authority. From the voluminous evidence placed on record the detaining authority rightly came to the conclusion that all through the detenu and members of his family were in possession of the premises and it cannot be said that the said satisfaction is not based on any material or is vitiated by non-application of mind. The plea of alibi raised by the detenu was rejected because on the basis of evidence and material produced it was found that he was present in Bombay. It is also not correct to say that an altogether new case is made out for the first time before this Court because whatever is stated in the affidavit filed by the detaining authority is already referred to in the grounds of detention as well as the statements of witnesses including that of Kashmirilal. It is then contended by Mr. Kotwal that from the voluminous evidence on record it is clear that the detenu was indulging in smuggling and therefore rightly detained under the COFEPOSA Act.
7. In para 9 of the petition it is alleged by the petitioner that mass of record furnished to the detenu contains innumerable pages and many of them are not even legible or readable. While replying to this allegation the Assistant Secretary to the Government of Maharashtra, Home Department, Mr. Karnik denied the said allegation by saying that the copies of the statements and documents supplied to the detenu are legible and readable. Obviously this statement was made in the earlier affidavit after perusing the copies of the documents which were in possession of the respondents. Therefore, we granted permission to the respondents to file a further affidavit after perusing the copies of documents as supplied to detenu. Such a further affidavit is filed by the Secretary to the Government of Maharashtra on 18th September, 1981. Initially in the affidavit filed by the Secretary it is stated by him that along with the grounds of detention the copies of the statements considered and relied upon him while passing the order of detention, were supplied to the detenu. Thus, it was not disputed that the documents supplied to the detenu were considered and relied upon while passing the order of detention. It is now an admitted position that the document at serial No. 53 of the list of documents supplied to the detenu viz. application to the Telephone Authority is legible one. Even in the further affidavit it is not denied that other documents as a whole are either legible or readable. What is stated in the affidavit is that the said documents were relied upon together with the statements of the servants of the detenu and the relevant entry is legible. With the assistance of the learned Counsel appearing on both the sides we have perused these documents; we have also tried to read them with the help of magnifying glass. So far as the documents referred to in para 6 of the affidavit viz. passengers' manifest is concerned, to say the least it is wholly illegible. Practically it is blank. So far as other documents are concerned, they are also illegible, though with the aid of magnifying glass the relevant entries could be seen. Assuming that the relevant entries could be seen and read with the help of the magnifying glass, still in the affidavit filed by the Secretary, Home Department, he has not disputed that the other parts of these documents are wholly illegible. He has also not disputed that these documents were relied upon while passing the detention order. It cannot be disputed that supplying of the copies of relevant documents, which are also relied upon for the purpose of detention is not an empty formality. As observed by the Supreme Court in Kirit Kumar's case, 1981 Cri LJ 1267 this Court is not competent to determine the question of relevance of the documents nor it is open to this Court to go through confidential files of the Government in order to fish out a point against the detenu. While dealing with such a contention the Supreme Court observed (at pp. 1270-1271 of Cri LJ) :
'With due respect to the Judges we are unable to agree with the view taken by them. In the first place, it was not open to the Court to have waded through the confidential file of the government in order to fish out a point against the detenu. Secondly the question of relevance was not to be decided by the Court but by the detaining authority which alone had to consider the representation of the detenu on merits and then come to the conclusion whether it should be accepted or rejected. ......... 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. There is no particular charm in the expressions 'relied on', 'referred to' or 'based on' because ultimately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention.'
8. In the present case, therefore, it will have to be held that the documents which were wholly illegible were not supplied at all to the detenu for all practical purposes. It is not disputed before us that all these documents were considered by the detaining authority and with the exception of one, were also relied upon for the purpose of detention. When a document is referred to in the grounds of detention, how can the Court say that only a particular entry is relied upon That will amount to fishing out a point against the detenu. This is more so, when in the grounds of detention or in the statements of witnesses, no reference is made to a particular entry. Further this is not a case in which it could be said that to these documents a mere casual reference was made and they were not relied upon by the detaining authority while passing the detention order. To such a case observations of Supreme Court in L. M. S. Ummu Saleema v. B.B. Gujarat : 3SCR647 cannot apply. Therefore, the only question which requires further consideration in this case is to find out as to what is the effect of the non-supply of relevant documents, which were relied upon by the detaining authority for passing the detention order. It is not possible for us to accept the contention of Mr. Kotwal that if the relevant entries are legible, then there is no denial of right of making an effective representation. It cannot be forgotten that the detenu is an old man aged about 70 years. The documents and grounds of detention were served upon him when he was in jail custody. Therefore, he had no assistance or help, nor a magnifying glass was available to him. In the statements of witnesses recorded under Section 108 of the Customs Act no reference is made to the particular or specific entry nor such a specific reference is made in the grounds of detention. Reference is made to the documents only which will mean that document as a whole is referred to and relied upon. Therefore, even for deciding as to which is the relevant entry, the perusal and reading of the whole document was absolutely necessary. Such a perusal or reading was not possible because admittedly the remaining portion of the document was not legible. As already observed, supplying the copies of relevant documents is not an empty formality and the detaining authority cannot be permitted to take advantage of its own wrong and to indulge in this type of argument. These documents were relied upon by the detaining authority while passing the detention order and in spite of this due care and precaution was not taken to supply legible copies of the documents to the detenue. Therefore, for all practical purposes it will have to be held that copies of these documents were not supplied to detenu at all.
9. However, it is contended by Mr. Kotwal that assuming that because of non-supply of some of the documents the grounds which are based on them are invalid for that reason, the order of detention as a whole cannot be declared as illegal in view of S. 5A of the COFEPOSA Act. According to the learned counsel, in view of the said provision it will have to be held that the order of detention was based on the remaining grounds or ground and therefore is legal and valid. Before dealing with this contention it will have to be seen as to what is the effect of non-supply of relevant documents. The Supreme Court had an occasion to deal with this aspect of the matter in various decisions. In Kamla Kanhaiyalal Khushalani v. State of Maharashtra : 1981CriLJ353 the Supreme Court held 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. Thus before an order of detention can be supported, the Constitutional safeguard must be strictly observed. Thus it is clear that supplying the relevant documents to enable the detenu to make an effective representation is a constitutional safeguard. Art 22(5) of the Constitution of India lays down that 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. The communication of the grounds is part and parcel of the constitutional safeguard guaranteed under Art 22(5) of the Constn. As observed by the Supreme Court in various decisions the documents which form an integral part of the grounds must be supplied along with the grounds of detention. If this is not done, the detention of the detenu is liable to be declared as void. The Supreme Court in S. Gurdip Singh's case : 1981CriLJ2 has taken a view that the service of grounds of detention can be complete only if they are accompanied by the documents and materials on which the order of detention is based. For then alone will the detenu be able to make an effective representation. In other words, if the documents which form the basis of the order of detention are not served on the detenu along with the grounds of detention, in the eye of law there will be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio. From this decision it is clear that non-supply of relevant documents will render the detention itself void ab initio. Therefore, once it is held that the supply of wholly blank or illegible documents amounts to non-supply of copies of the relevant documents which are relied upon for passing the detention order, then we have no other alternative but to hold that the detention of the detenu is void ab initio. If the detention is void ab initio, then the question of sustaining such a void order under Section 5A of the COFEPOSA Act cannot arise. S. 5A of the COFEPOSA Act will come into operation after the communication of grounds and following the constitutional safeguards. In our opinion, S. 5-A of the COFEPOSA Act will have no application if the grounds themselves are not communicated. Other wise the constitutional safeguard guaranteed under Ar. 22(5) will have no meaning. From the various decisions of the Supreme Court, it is clear that non-supply of the grounds of detention or relevant documents must have an effect of invalidating the detention itself. In that case the detention cannot be said to be according to the procedure prescribed by law. If the detention itself is not according to the procedure prescribed by law, then the question of supporting the void order of detention by taking recourse to S. 5A of the COFEPOSA Act will not arise. An order which is void ab initio cannot be validated or supported by taking recourse to S. 5A of the COFEPOSA Act. Therefore it is not possible for us to accept this contention of Mr. Kotwal. In the view which we have taken it is not necessary to deal with the cases viz. 1981 Cri LJ NOC 20, Hira Nand v. State of Rajasthan, . Satyanarayan Kothari v. Supdt., Presidency Jail, Alipore and the decision of this Court in Criminal Application No. 419 of 1978 decided on 19th September, 1978 by Naik and Mehta JJ., on which reliance is placed by Mr. Kotwal.
10. In this view of the matter, it is not necessary to deal with any other contention raised or argued before us. In the result, the Writ Petition is allowed. The rule is made absolute and the continued detention of the detenu under the Order Dt. 13th April '81 is declared as illegal and void. However, we are informed that the detenu is also in detention under the remand order passed by the competent Magistrate. Therefore, it is not possible for us to direct his immediate release. The detenu is at liberty to approach the competent Court in that behalf.
11. Petition allowed.