Documents Forming Genesis Of Opinion Of Detaining Authority Should Be Supplied To Detenu : Tripura HC [Read Judgment]

In a habeas corpus petition filed on behalf of one Shyam Manik Debnath, the high court, in light of Sunila Jain v. Union of India & Anr., (2006) 3 SCC 321, said,

"It is true that not each and every document is required to be supplied to the petitioner. But then the documents forming genesis of the opinion of the competent authority in passing an order of preventive detention, necessarily have to be supplied".

The detenu was detained under an order passed by the Addl. Secretary to the Government of Tripura, appropriate authority under the provision of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, on allegations of involvement in illicit traffic of narcotic drugs and psychotropic substances.

Denying these allegations, the detenu sought quashing of the order of detention for non-supply of copy of FIR and the document relied upon by the detaining authority, despite several requests.

In this regard, the Respondent authority submitted that the FIR was a public document under Section 74 of the Evidence Act, and it need not be supplied to the detenu separately.

Dismissing the Respondent's submissions, the bench of Chief Justice Sanjay Karol and Justice Arindam Lodh said, "the detenu has a constitutional right of making representation for which he is entitled to receive such of those documents which are material and vital enabling the detaining authority to form an opinion" and that "it is the duty of the detaining officer to supply the same". It noted that the detenu did not have access to internet in jail and could not have accessed the FIR, which was also not proved to have been uploaded online.

While it was observed in view of Rameshwar Shaw v. District Magistrate, Burdwan & Ors., AIR 1964 SC 334, that the principle that the grounds basing satisfaction of the detaining authority must be supplied to the detenu entitling him to make representation, was a flexible one, and it was not necessary that the order rejecting the representation of the detenu should be a reasoned order. However, the bench, taking note of Article 22 of the Constitution, which mandates that a detenu shall be communicated the grounds on which the order has been made and shall be afforded the earliest opportunity of making a representation against the order, held that there was clear violation of the Petitioner's constitutional rights and said,

"there is nothing more precious than personal freedom and liberty of an individual."

Reliance was placed on Bhut Nath Mete v. State of West Bengal, (1974) 1 SCC 645, wherein Justice Krishna Iyer had crystallized the fundamentals of the constitutional mandate contained in the expression "as soon as may be" as provided under Article 22(5) of the Constitution.

The court also cited the ruling in P.U. Abdul Rahiman v. Union of India & Ors., 1991 Supp (2) SCC 274, wherein while dealing with identical circumstances, the Court quashed the order of preventive detention purely on account of non supply of essential material, preventing effective representation on behalf of the detenu.

The bench held,

"Right to make a representation is a Constitutional right and exercise of such right is not a mere formality and cannot be rendered nugatory by not supplying the relevant and significant material, relied upon by the detaining authority while recording its satisfaction with regard to the necessity of passing the order"

It went on to cite Rekha v. State of Tamil Nadu through Secretary to Government & Anr., (2011) 5 SCC 244, wherein the Apex Court relied on Thomas Pelham Dale's case, (1881) 6 QBD 376(CA), which held,

"if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue".

Accordingly, the impugned order of detention was quashed on failure of the detaining authority to supply vital and material documents to the detenu for making effective representation, with liberty to the detaining authority to pass a fresh order, in accordance with law, on the same or subsequent cause of action.

The Petitioner was represented by Senior Advocate P. K. Biswas and Advocate P. Majumder and the Respondent State by Advocate General A. K. Bhowmik and Additional Government Advocate K. De.

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