TMI Blog2009 (4) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capitulated 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 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 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs (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 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 strict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and 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. 26. In District Collector, Ananthapur and 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 op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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