UNION OF INDIA v. RANU BHANDARI

Citation: [2008] 13 S.C.R. 582

Court: Supreme Court of India

Bench: ALTAMAS KABIR, MARKANDEY KATJU

Case summary

UNION OF INDIA v. RANU BHANDARI.pdf

Judgment text

[2008] 13 S. C. R. 582 ~. UNION OF INDIA V. RANU BHANDARI (Criminal Appeal No. 1468 of 2008) SEPTEMBER 16, 2008 [ALTAMAS KABIR AND MARKANDEY KATJU, JJ.

] Preventive Detention - Non-supply of documents - Chailenge to - Quashing of detention order by High Court - Interference with - Held: While issuing detention order the Detaining Authority must be provided with all the materials available against the individual and in his favour - When detention order is passed, detenu is to be supplied with all material relied upon by Detaining Authority in issuing detention order to make effective representation against the order - On facts, vital documents having direct bearing on detention order not placed ~· ' before Detaining Authority including the Order which absolved detenu from criminal proceedings - On account thereof, detenu prevented from making effective representation against detention order - Thus, order of High Court does not call for interference - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - s. 3(1).

Respondent's husband obtained Export Promotion Capital Goods Scheme licences as service provider for the Companies floated by him. He imported vehicles at ~- • concessional rate for personal use. He did not use them for tourists purposes as declared for obtaining E. P. C. G. licences. The Foreign Inward Remittance Certificate did not relate to his earnings from use of imported cars. The said activities amounted to smuggling, and as such the respondent's husband was issued detention order u/s. d 3(1) of the Conservation of Foreign Exchange and Pre- • vention of Smuggling Activities Act, 1974 to prevent smug- ~ .. gling of goods in future. Respondent filed a Habeas Cor- r --+ pus petition challenging the detention order on the ground that the non-supply of various documents considered by the Detaining Authority while issuing the detention order, preveRted the detenu from making the effective representation to the detention order. High Court allowed the writ )..

petition and quashed the detention order. Hence the present appeal. I Dismissing the appeal, the Court HELD: 1. 1 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. [Para 32] [595,GH] 1. 2 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.

When a detention order is passed all the material 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 as the minimum safeguards to I 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 crimi- . -. ( nal proceedings which would entail a proper investigation. [Para 25] [593 E-H] 2.

1 In the instant case, it is accepted that notwith- +- ' standing 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 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. Furthermore, if the detenu's representation and writ petition had been placed before the detaining Authority, which according to the detenue 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. [Paras 28 and 29) [595 A,8,D] ~. 2.

2 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. On account of the non-supply of the documents mentioned the detenu was prevented from making an effective representation against his detention. Thus, there is no reason to interfere with the judgment and order of the High Court. [Paras 30 and 31) [595 D,E,F] ... Radhakrishnan Prabhakaran vs. State of Tamil Nadu 2000 (9) SCC 1790; J. Abdul Hakeem vs. State of TN. and Ors. 2005 (7) SCC 70; Sunila Jain vs Union of India 2006 (3) SCC 321; M. Ahamedkutty v. Union of India 1990 (2) SCC 1; Mehrunissa v. State of Maharashtra 1981 (2) SCC 709; Ashadevi wife of Gopal Ghermal v K. Shivraj 1979 (1) SCC 222; Ayya @Ayub's case 1989 (1) SCC 374; Sk. Nizamuddin ~· v State of West Bengal 1975 (3) SCC 395; State of U. P v Kamal Kishore Saini 1988 (1) SCC 287 - referred to.

• -r Case Law Reference 2000 (9) sec 1190 Referred to. Para 11 2005 (7) sec 10 Referred to. Para 12, 28 2006 (3) sec 321 Referred to. Para 14 1990 (2) sec 1 Referred to. Para 18, 26 1981 (2) sec 109 Referred to. Para 18, 26 1979 (1 > sec 222 Referred to. Para 19, 26 1915 (3) sec 395 Referred to. Para 20 1988 (1) sec 281 Referred to. Para 21 1989 (1) sec 374 Referred to. Para 26 CRIMINALAPPELLATEJURISDICTION: CriminalAppeal No. 1468 of 2008 From the final Judgment and Order dated 22. 8. 2006 of ·~ the High Court of Delhi at New Delhi in Writ Petition (Criminal) No. 337 of 2006 A. Sharan, A. S. G. , Amit Anand Tiwari, T. A. Khan, B. V. Bairam Das and 8. Krishna Prasad for the Appellant. Vikram Chaudhary, Rakesh Dahiya and Himanshu Shekhar for the Respondent. The Judgment of the Court was delivered by ALTAMAS KABIR,J. 1. ! -eave granted. -. ; 2.

On 15th December, 2005, the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, New Delhi, issued an order ofdetention against Shri Sanjay Bhandari, the husband of the respondent/ writ petitioner, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, t 1974, (hereinafter referred to as "COFEPOSA"), to prevent the . . lf 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. --t- · 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. , I I 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 empowered to issue prerogative writs have, there· fore, 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 arbi- . -- " trarily 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 '1 the general public. It has also been the consistent view that when a detention order is passed all the material 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 @ Ayub's case [(1989) 1 sec 374] and Ahamedkutty's case, all A.

referred to hereinbefore, have relied on the principle that al- though 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 i ... 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 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 l 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 .

, ' which had been relied up on 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 issu- · J. ing the order of detention at all. s 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 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. o 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 interf~re with the judgment and 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. N. J. Appeal dismissed.