Preventive Detention | Failure To Furnish Documents Relied On By Detaining Authority Violates Article 22(5) : Supreme Court

While quashing the prevention detention of a man for non-supply of relevant materials to challenge the detention order, the Supreme Court has held that failure to furnish copies of documents relied on by the Detaining Authority would deprive the detenu of making an effective representation.

A bench of Justices B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan held that while it is not necessary to furnish copies of each and every document to which a casual or passing reference is made in the narration of facts and which are not relied upon in the detention order, "however, failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India.”

In this case, the Court also quashed detention orders under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on grounds of 9-month delay in communicating the representation of the detenu by the jail authorities to concerned authorities. 

The counsel for detenu, Senior Advocate Gaurav Aggarwal had submitted that the grounds of detention given to the detenu did not contain the statements of one Ms. Pretha Pradeep, which was relied upon by the Detaining Authority for arriving at its subjective satisfaction that the detenu should be kept in preventive detention. The non-supply of the statements of Ms. Pradeep affected the right to make an effective representation under Article 22(5). Whereas, senior Advocate, Nachiketa Joshi, for the respondent, submitted that even if the statements of Pradeep are eschewed, the Detaining Authority could arrive at the same conclusion.

Observing that the statements were indeed the basis for the Detaining Authority to arrive at subjective satisfaction, the Court held: "It could thus be seen that though this Court held that a copy of every document mentioned in the order is not required to be supplied to the detenu, 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 are required to be supplied to him."

It reiterated: "It is thus a settled position that though it may not be necessary to furnish copies of each and every document to which a casual or passing reference has been made, it is imperative that every such document which has been relied on by the Detaining Authority and which affects the right of the detenu to make an effective representation under Article 22(5) of the Constitution has to be supplied to the detenu."

The Court referred to its judgment in M. Ahamedkutty vs. Union of India and another (1990), which held: "The constitutional imperatives in Article 22(5) are twofold: (1) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective 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 has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relied on. If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation."

Also from the judgment- Each Day's Delay Matters In Cases Of Personal Liberty;Representation Against Preventive Detention Must Be Decided Soon : Supreme Court