Calcutta High Court
Ruma Moitra vs Union Of India (Uoi) And Ors. on 30 November, 2004
Equivalent citations: (2005)2CALLT343(HC), 2005(1)CHN290
JUDGMENT Arun Kumar Bhattacharya, J.
1. In this application under Article 226 of the Constitution of India for habeas corpus, the petitioner has sought for release, on setting aside the Order of Detention, of her husband Sri Manas Kumar Moitra, hereinafter referred to as the detenu, who has been detained on 24.06.2004 by virtue of an Order of Detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the COFEPOSA Act, on 21.06.2004. The said Order of Detention together with the grounds therefor is contained in Annexure P-1 to the writ application.
2. The background history leading to the above application is that two containers containing fraudulent export cargo of M/s. S. G. International Pvt. Ltd., Kolkata, meant for loading on the vessel M. V. THOR LONE, were intercepted by the officers of Dock Intelligence Unit (Prev.) on 15.11.2003 at Netaji Subhas Dock Yard after issue of the dock challan. As no representative of the said exporter, of which the detenu is the director, was available, the seals of the containers were opened in presence of the authorized representative of the Customs House Agent M/s. S. N. M. Agency, two independent witnesses & CISF Personnel, and it was found that out of recovered 3109 cartons as against declared quantity of 2729 cartons (in 13 shipping bills), 2206 cartons contained waste rubber materials/cuttings/trash/broken bricks in wet condition and the balance 903 cartons contained the declared goods. The said 13 shipping bills of different dates were filed for export of 2729 cartons of goods declared as Leather Gloves and Leather Wallet with a declared FOB value of Rs. 4,91,60,000/. The bills of export for duty-free goods revealed that the said M/s. S. G. International Pvt. Ltd. being a unit of Falta Economic Zone (FSEZ) had procured the purported export consignments from M/s. Peoples Tannery of 72, Matheswar Tolla Road, Kolkata-700 046 and M/s. Sree Exports Pvt. Ltd. of 17A, Sura Third Lane, Kolkata-700 010, of which the detenu is a senior partner & Director of the firms respectively, and thus M/s. Peoples Tannery & M/s. Sree Exports Pvt. Ltd. would have claimed fraudulently Drawback/DEPB amounting to about Rs. 44,24,400/- being 98 of the total declared FOB value of Rs. 4,91,60,000/-. Since the said authorized representative of the Customs House Agent could not produce any satisfactory explanation for the above misdeclared export cargo, the containers along with the recovered goods, were seized on 19.11.2003 under Section 110 of the Customs Act, 1962 as those were illegally and fraudulently attempted to be exported outside India to fulfil their export obligation, in contravention of the provisions of the Customs Act.
3. The detenu was arrested and produced before the Court of learned Chief Metropolitan Magistrate, Kolkata on 11.12.2003 when he was ordered to be kept in judicial custody till 22.12.2003, which was subsequently extended. On 27.01.2004 he was granted bail by the learned Chief Metropolitan Magistrate, Kolkata on certain conditions. With a view to preventing him from smuggling goods in future, on 21.06.2004 the detaining authority issued an Order of Detention under Section 3(1) of the COFEPOSA Act which was executed by the local police authorities and accordingly he was detained and kept in custody in the Presidency Correctional Home at Alipore on and from 24.06.2004.
4. The impugned Order of Detention has been assailed by the petitioner broadly on five grounds out of which two are :
I. Taking into consideration the previous Order of Detention dated 21.01.2002 which was set aside by the Advisory Board.
II. Non-supply of documents.
5. Before we open the discussion, and indeed as paving the way for it, it is worthwhile to mention that in a proceeding of this nature the Court will not enquire into the sufficiency of the materials justifying the making of the order or the correctness of the allegations made against the detenu, as was held in the case of Khudiram Das v. State of West Bengal, & Tarak Nath Chakraborty v. State of West Bengal, . The Court is concerned here to consider whether the detention is in accordance with the procedure established by law which is always on the detaining authority to show, as Article 21 of the Constitution provides in unambiguous terms that no one shall be deprived of his life or personal liberty except in accordance with the procedure established by law. The observation of the Apex Court in this regard in Ichhu Devi Choraria v. Union of India, may be reproduced :
"This Constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life of personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements' of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the Order of Detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred. The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade".
6. It is now to be considered whether the requirements of the Clause (5) of Article 22 of the Constitution and Sub-section (3) of Section 3 of the COFEPOSA Act were duly complied with by the detaining authority.
7. So far the first ground above is concerned, Mr. Pradip Ghosh, learned Counsel for the petitioner, on drawing Court's attention to paragraph 61 of the Detention Order at page 76 of the paper book and other materials and on referring to the decisions in Chhagan Bhagwan Kahar v. N.L. Kalna, , Ramesh v. State of Gujarat, & Vijay-raj Jiv-raj Solanki v. Union of India, 1996 Cr. LJ 3957, advanced argument contending that the second Order of Detention must be based on fresh grounds and the earlier order of the detention cannot be taken into account but since it has been done here the impugned Order of Detention is liable to be set aside on this ground alone. Mr. Shibdas Banerjee, learned Counsel for the respondents, on the other hand, on referring a decision in Najma Hassan Bagwan v. M. N. Singh, reported in 2002 Cr. LJ 1432 (Bom) urged that para 61 of the Detention Order is nothing but a casual reference of the earlier Order of Detention which has no nexus with the impugned Order of Detention passed on other materials on record and as such the question of setting aside the Order of Detention on that ground does not arise. For proper appreciation of the above contentions, it is desirable to reproduce para 61 of the Order of Detention and para 31 of the affidavit-in-opposition :
"61. The Deputy Director, Directorate of Enforcement, Kolkata vide his letter dated 14.05.2004 informed that a Detention Order F. No. 673/45/2001 -Cus. VIII dated 21.01.2002 was issued against you under Section 3(1) of the COFEPOSA Act, 1974 with a view to preventing you from acting in any manner prejudicial to the conservation of foreign exchange in future. The Detention Order was however revoked by the Central Government on 29.04.2002 on the opinion of the Hon'ble Central Advisory Board".
"31. With regard to the statement made in paragraphs 31 and 32 of the said application, I strongly deny and dispute the same, save and except which are matters of record. In this regard, I state that the letter dated 14.05.2004 from Enforcement Directorate was relied upon by the detaining authority to show the involvement of the detenu in smuggling activity in the past and that a Detention Order was issued against the detenu on 21.01.2002 under the COFEPOSA Act, 1974 which revoked by the Central Govt. on the opinion of the Central Advisory Board on 29.04.2002. The Detention Order dated 21.01.2002, the grounds of detention and order dated 29.04.2002 for revocation of the Detention Order were already served on the detenu on 19.02.2002, 20.02.2002 and 02.05.2002 respectively................."
8. In serial No. 256 (page 94) of the list of documents relied upon by the detaining authority, the above letter dated 14.05.02004 of the Deputy Director has been depicted which is at pages 1537 - 1545. A glance to the above will reveal that reliance of the previous grounds of detention has not only been admitted but also has sought to be justified by the detaining authority asserting that Order of Detention dated 21.01.2002, grounds of detention and order dated 29.04.2002 for revocation of the Detention Order were served upon the detenu. Such fact of reliance upon the previous order is also buttressed by necessary inference from para 69 of the impugned Detention Order itself which runs as follows : "For the same reasons and in particular having regard to the chronological sequence of events in this case, I am further satisfied that the nexus between the date of incident and passing of this Detention Order as well as the object of your detention has been well maintained". In short there is nothing to indicate that the previous Order of Detention was not taken into consideration. "The matter is not res Integra. In a number of decisions of this Court to which reference will be made presently, this point has been considered and it has been held that once an order of revocation is made, another order detaining the same person can only be passed if some additional or fresh material is in possession of the State Government on which action can be based", as was held in the case of Ghulam Nambi Zaki, . In the Constitution Bench decision in Hadibandhu Das, , it was observed "In other words, the revocation or expiry of the previous order cannot lead ipso facto to a revival of the detention by the passing of a fresh order, because a person who is entitled to his liberty can only be put in a second jeopardy when there are additional or fresh facts against him". In Har Jas Dev Singh's case, , it was expressed : "In these circumstances after the date on which the order ceases to be in force, unless fresh facts have arisen on the basis of which the Central Govt. or State Govt. or an Officer, as the case may be, was satisfied that such an order should be made, the subsequent detention on the very same grounds would be invalid". Referring to the above decisions the Apex Court observed in C. B. Kahar's case (supra): "It emerges from the above authoritative judicial pronouncements that even if the Order of Detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a Detention Order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order". The same view has been echoed in & 1996 Cr LJ 3957.
9. Therefore, in view of the above discussion, we are unable to accept the above contention of Mr. Banerjee. The decision in 2002 Cr. LJ 1432 (Bom), so referred to by him cannot be said to have any application in the present facts and circumstances. Accordingly, the earlier grounds of detention dated 21.01.2002, revoked by the Central Govt. on the opinion of the Central Advisory Board on 29.04.2002, having been taken into consideration and relied upon by the detaining authority along with other materials in passing the impugned Order of Detention, the impugned Order of Detention is bad in law as it vitiate the subjective satisfaction of the detaining authority in passing the said order. As such, the Order of Detention is liable to be set aside.
10. As regards ground (II) above i.e. non-supply of documents, Mr. Ghosh on taking us through different pages of the paper book & affidavit-in-opposition and on referring to the decisions of Ichhu Devi, ; Salani Soni, & Sunil Dutt, , argued that it is obligatory on the part of the detaining authority to supply all the documents to the detenu along with the grounds pari passu and materials forming part of the grounds of detention and relied upon in the grounds of detention, and non-compliance of the same would amount to a clear violation of the safeguard guaranteed under Article 22(5) of the Constitution, as has taken place in this case. Mr. Ghosh classified this ground under six heads viz:
(a) Documents such as bill of entry, shipping bills, export declaration, G. R. form relied upon in the grounds of detention but not supplied in complete set despite demand.
(b) Supply of illegible documents,
(c) Wrong communication and variance between illegible documents and typed set given.
(d) Non-supply of documents on the basis of which statement of Sri Vijay Kumar Goenka was taken but not supplied.
(e) Construction of certain documents seized from the house of Sri Pawan Kumar Garg, as incriminating by the detaining authority but not supplied.
(f) Un-communicated material.
11. Regarding (a) & (b) above it has been stated in paragraphs 15 - 21 of the petition that copies of the shipping bills in four sets including reverse side which incorporate the orders of the Customs Authorities and "Let export" order and duplicate copy of the bill incorporating orders of the Customs Authorities allowing shipment were not supplied, that reverse side of duplicate & triplicate copies of shipping bills are wholly illegible and blank and nothing can be deciphered, that all the shipping bills have been supplied in incomplete form, that the respective dock challans, export application does not incorporate customs examination report and the reverse side thereof incorporates illegible portion, reverse side of G. R. Form (Exchange Control Copy) of the shipping bills have been given in illegible manner, that first left-hand column of all the G. R. Forms commencing from page 224 were deliberately made illegible, that seizure list/search list provided (pages 249 & 250) were not understandable, that bills of export of M/s. Sree Exports (P) Ltd., & M/s. Peoples Tannery were not supplied and were given in illegible fashion. The detenu in his representation dated 08.07.2004 demanded supply of those documents but to no effect and all these prevented him from making an effective and purposeful representation. In support of non-supply of other sets of shipping bills, Mr. Banerjee contended that those were not provided as the same were nothing but replica of the provided 13 number of shipping bills, but all other desired documents were supplied and the shipping bills and reverse side thereof are legible. Now, on a "proper construction of Clause (5) of Article 22 read with Sub-section (3) of Section 3 of the COFEPOSA Act, it is necessary for the valid continuance of the detention that subject to Clause (6) of Article 22, copies of documents, statements and other materials relied upon in the grounds of detention shall have to be furnished to the detenu along with the grounds of detention within five days from the date of detention and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. One of the primary objects of communicating the grounds of detention to the detenu is to enable him, at the earliest opportunity, to make a representation against his detention, and the detenu cannot possibly be expected to make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. If this requirement of Clause (5) of Article 22 read with Sub-section (3) of Section 3 of the COFEPOSA Act is not satisfied, the continued detention of the detenu would be illegal and void. The decisions in Ichhu Devi case (supra) and Sunil Dutt case (supra) may well be referred to in this connection. Same view was adopted in Salini Solanki's case, which stands for the proposition that where there is an express statutory obligation to communicate not merely the decision but also the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Hence, the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority not merely the inferences of fact arrived at by the detaining authority. 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. "Ground" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. Copies of documents to which reference is made in the "grounds" must be supplied to the detenu as part of the "grounds". In the case on hand, the specific assertion in para 17 of the affidavit-in-opposition that other copies of the shipping bills are nothing but replica of duplicate and triplicate copies of the bills and the request of the detenu to supply him four sets of shipping bills including full text of the reverse side which were contained in his representation dated 08.07.2004 to the detaining authority was carefully considered and rejected leads to show that it is virtually admitted that copies of all the four sets of the bills were not supplied to the detenu. It was contended by Mr. Ghosh that the original bill bears the examination report, duplicate bears adjudication order, triplicate bears the particulars of Captain's receipts & vessel and quadruplicate bears report from Assessing Officer of Special Economic Zone and thus different sets of the shipping bills are meant for different purposes and so the contention of the respondents that other copies of the bills are nothing but replica of the duplicate and triplicate is not at all correct. As a matter of law, how or in what way a document will be used in preparing an effective representation against the Order of Detention is a matter fully within the domain of the detenu and not the detaining authority whose statutory obligation is to furnish all the documents and materials relied upon in passing the Order of Detention to the detenu. "It is immaterial whether the detenu already knew about their contents or not. In Mehrunnisa v. State of Maharashtra, , it was held that the fact that the detenu was aware of the contents of the document not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents. In Md. Zakir v. Delhi Administration, it was reiterated that it being a Constitutional imperative for the detaining authority to give the documents relied on and referred to in the Order of Detention of pari passu with the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with ............" as was held in M. Ahmed Kutty v. Union of India, . 13 shipping bills, invoices and packing list, dock challans, G. R. forms (Exchange Control Copies) and bill of export, borne out in Sl. Nos. 1, 2, 3 & 5 respectively of the list of documents (page 82) at pages 1-170, 171-222, 223-248 & 278-299 are some of the documents amongst others relied upon by the detaining authority in passing the impugned Order of Detention. Though duplicate and triplicate copies of shipping bills has been mentioned in the said Sl. No. 1, there is nothing to indicate specifically in the grounds of detention that only duplicate and triplicate copies were relied upon. Reverse side of almost all the shipping bills appear to be blank. That the respective dock challans, export application does not incorporate custom examination report and reverse side of the same incorporates illegible portion, that reverse side of G. R. Form (Exchange Control Copy) of all the shipping bills are illegible and first left-hand column of all the G. R. Forms commencing from page 224 onwards are also illegible as averred in paragraph 18 of the petition, there is no denial of it in paragraph 20 of the affidavit-in-opposition which thus amounts to admission of the same. Similarly, invoice at pages 280,283,286,291,293 & 299, bank statements of M/s. Ganesh Trading Co., Drunky Exports (P) Ltd., Sigma International & Ganesh Iron Trading Co. at pages 723, 727, 729 & 730 (relied upon documents vide Sl. Nos. 125,129, 131 & 132 at page 88) are found to be illegible.
12. The detenu appears to have made three representations, one dated 08.07.2004 addressed to the Joint Secretary, Govt. of India, Ministry of Finance, another dated 09.07.2004 to the Secretary, Govt. of India, Ministry of Finance, Department of Revenue and the other dated 10.07.2004 to the Chairman & Members of the COFEPOSA Advisory Board bearing out certain facts and urging for supply of those and other documents to enable him to make an effective and purposeful representation, but there is no material to show that the aforesaid requests were acceded to. The question of demanding the documents is wholly irrelevant because it is the Constitutional mandate which required the detaining authority to give the documents relied on or referred to in the Order of Detention part passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with, as was held in the decision Md. Zakir v. Delhi Administration, . Furnishing illegible copies of documents and/or incomplete documents to the detenu cannot be said to be any supply at all since the very raison d'etre of such supply to enable the detenu to make an effective and purposeful representation is frustrated. In the case of Kamala Devi Kedia v. Union of India, reported in 1998 C Cr LR (Cal) 456, it was held the supply of illegible documents virtually amounts to non-supply of relevant documents which vitiates the detention. Therefore, refusal on the part of the detaining authority to supply legible copies of the relevant documents to the detenu infringed the detenu's right under Article 22(5) of the Constitution and thus the Order of Detention is liable to be set aside. In this connection, the decisions in Bhupinder Singh v. Union of India, , Dharmista Bhagat v. State of Karnataka, 1989 Supp(2) SCC 155, Amit Agarwalla v. Union of India, 1998 Cr. LJ 974 & Lily More v. Union of India, 1999(2) CHN 644 : 1999 C Cr LR (Cal) 426 may relied upon.
13. As regards (c) above i.e. wrong communication, Mr. Ghosh on drawing Court's attention to the illegible documents (summons) at pages 300, 311, 318, 322 & 325 contended that typed sets of those illegible documents supplied are at pages 301, 312, 319, 323 & 326 respectively which are completely different, as the issuing authority and place of investigation are separate and so there was no communication of those documents resulting in non-compliance of the mandate embodied in Article 22(5), and stricto sensu, there appears to be some force in the above contention.
14. Relating to (d) above, Mr. Ghosh on citing the case of Thakor Mulchandani and on referring to paragraph 25 of the petition argued that the five bills issued in favour of Pathrol Impex and L. N. C. Enterprise shown to Mr. Vijay Kumar Goenka who was confronted with it, were not supplied to the detenu and such non-supply of the same pari passu with the grounds of detention has made the Detention Order bad and violative of Article 22(5). In paragraphs 25 & 26 of the affidavit-in-opposition it has been contended that since those five documents were not relied upon by the detaining authority in passing the Order of Detention, the same were not supplied and all the documents relied upon by the detaining authority were provided to the detenu. The relevant documents relied upon in this regard and supplied to the detenu are (Sl. Nos. 84 to 87 & 262 of the list of documents) at pages 443-444, 445-452,453-470,471-472 & 1596-1603. As discussed earlier, the detenu can legally claim those documents, statements and other materials which were relied upon by the detaining authority in the grounds of detention. Here, merely because Vijay Kumar Goenka was shown those five bills or other documents and was confronted with it, it is possibly no ground for supply of the same to the detenu particularly when those five bills or other materials cannot be held to have any nexus with the case on hand nor there is anything to indicate in the grounds of detention that the same were relied upon by the detaining authority in passing the Order of Detention. In this context, the decision of Haridas Ramchand Shah v. K. L. Verma, , may be referred to. The facts and circumstances of the decision , so referred to by the learned Counsel for the petitioner, being quite different, the same cannot be said to have any application in this case, Incidentally, it may be mentioned that the statements of the said Sri Goenka dated 25.11.2003 & 27.11.2003 (pages 445-452 & 471-472) were also relied upon as will be evident from Sl. Nos. 85 & 87 of the list of relied upon documents and paragraph 20 of the grounds of detention, and so the averment in paragraph 27 of the affidavit-in-opposition that the statement of Sri Goenka dated 24.05.2004 only was relied upon does not appear to be correct to that extent. Nevertheless, in view of the above discussion, this part of the argument of Mr. Ghosh is not sustainable.
15. As regards (e) above i.e. non-supply of incriminating documents, Mr. Ghosh on referring to paragraphs 21 & 24 of the grounds of detention and petition respectively advanced argument contending that when certain incriminating documents are said to have been recovered and seized as per list annexed, from the premises of Sri Pawan Kumar Garg, it was obligatory on the part of the detaining authority to supply copies of those documents to the detenu, as "incriminating" is a judgmental expression on perusal of the documents showing implications against the detenu. If, Mr. Ghosh submitted, the detaining authority simply used the word "incriminating" on the basis of Panchanama without relying upon the documents, as contended, it demonstrates that the detaining authority abrogated its statutory authority in forming his own subjective satisfaction thereby rendering the detention order bad and making it liable to be set aside, in support of which two decisions in Jose Sebastian Kennedy v. Union of India, reported in 1992(1) Crimes 752 (Bom) & Jaleel Khan v. Assistant Secretary, Home Department, reported in 1983 Cr. LJ 1305 (Bom), were relied upon. In paragraph 24 of the affidavit-in-opposition, it has been stated that the statement made by Pawan Kumar Garg on 28.11.2003 and the list of documents seized were relied upon by the detaining authority which were provided to the detenu which necessarily implies that the documents referred to in the seizure list (SI. No. 88 of the list of documents) at pages 473-475 were not supplied to the detenu as there is no specific denial of it in the said affidavit-in-opposition. "Grounds" means materials on which the Detention Order was made, as was held in the case of State of Bombay v. Atma Ram Sridhar Vaidya, . In Khudiram Das v. State of West Bengal, reported , it was held to mean all the basic facts and materials which were taken into account by the detaining authority in making the Order of Detention. Communication of ground presupposes the formulation of ground and formulation of ground requires and ensures the application of mind of the detaining authority to the facts and materials before it. If the documents referred to in the seizure list were not considered and relied upon by the detaining authority while passing the Order of Detention, it could not be possible for the detaining authority to know the contents thereof and to hold the same as "incriminating". If, on the other hand, without perusal and considering the said documents the detaining authority styled the same as "incriminating" in the grounds of Detention Order, then it is a case of non-application of mind on the part of the detaining authority thereby vitiating the Order of Detention. In this context, relevant paragraph of Jaleel Khan's decision 1983 Cr. LJ 1305 (para 11) may be reproduced :
"As regards the documents seized, it is evident from1 the affidavit-in-reply that the documents by themselves were not placed before the detaining authority, but the only thing that was put before him was the Panchanamas which only referred to the said documents without setting out the contents thereof. It could not have been, therefore, possible for the detaining authority without knowing the contents thereof to determine before passing the Detention Order, whether or not they were material and would have influenced him one way or the other in making the Detention Order. The very fact that in the grounds of detention the said documents are referred to or described as 'incriminating documents', would show that even according to the detaining authority the documents were such as would incriminate the petitioner. They would be, therefore, material to be considered before making the Detention Order. Therefore, without having an opportunity to consider the said documents before making the order, the detaining authority cannot be heard to say, and that too, at the stage of filing the affidavit-in-reply that the said documents were not relied upon by him for passing the order or that such reference was casual in the course of narration. If the said documents were material to be considered before passing the order, which we think it was, then it was for the detaining authority to consider them before making the order and at that time to determine whether they would or would not have influenced him in making the said order. That could not be done by him at the stage of filing the affidavit-in-reply. In this case admittedly the said documents not having been placed before the detaining authority and he not having had an opportunity to consider the same before making the Order of Detention, the order, in our view, suffered from non-application of mind".
Similar view was taken in the said Jose Sebastian Kenndey's case (supra), upheld by the Apex Court in Special Writ Petition (Crl.) 2 of 1992 observing as follows:
"Once the detaining authority itself has styled the documents seized during the searches of residential premises as incriminating documents and when these documents by themselves were not placed before the detaining authority, it is difficult to accept as contended by the learned Counsel for the respondents that these documents are not vital or do not constitute basic materials. It is indeed true that copies of panchanamas have been furnished to the detenu and the panchanamas suggest that documents referred to as incriminating documents were seized, either on the reasonable belief that they are required for the inquiry and in the matter of investigation or on the ground that they are useful and relevant for the purpose of making the Detention Order. In a tabular form at Annexure 'D' to the petition a , reference has been made to these panchanamas to show what documents were seized therefrom. Admittedly none of these branded as incriminating documents were placed before the detaining authority and yet the detaining authority while formulating the grounds has in terms said that these are incriminating documents. This expression clearly connotes that they are , documents, by which the detenu incriminates himself in the offence and in this context it is not possible to say that such documents are not vital or do not constitute any basic material so as to hold that subjective satisfaction is not impaired. If this being the position, then, it must be held that there was no application of mind by the detaining authority and the Order of Detention therefore in its turn is vitiated. Once we come to this position, the other challenge in the petition, namely, that the documents referred to as incriminating documents were not furnished, has become good challenge and on that ground also the detention stands vitiated".
"Once the documents are referred to in 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 expression 'relied on', 'referred to' or 'based on' because ultimately all the 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. The question whether the grounds have been referred to, relied on, based on, is merely a matter of describing the nature of the grounds. This not having been done in the present case the continued detention of the petitioner must be held to be void", as was held in the case of Kirit Kumar v. State of Gujarat, .
16. Therefore, in the light of the above discussion, due to non-supply of the relevant documents referred to in the seizure list and described as "incriminating" in the grounds of Order of Detention thereby preventing the detenu from making an effective representation, the said Order of Detention is violative of Article 22(5) and is thus vitiated.
17. Regarding (f) above i.e. uncommunicated material, on citing the decisions of Md. Alam v. State of West Bengal, & Bhutnath Mete v. State of West Bengal, , and on referring to paragraph 4(h) of the affidavit-in-opposition wherein it is stated that M/s. Peoples Tannery & M/s. Sree Exports (P) Ltd. would have illegally claimed drawback amounting to Rs. 44,24,400/- (approx.) being 9% of the total FOB value of Rs. 4,91,60,000/-, Mr. Ghosh submitted that there is no such material in the grounds. Such contention does not appear to be tenable as it has been specifically averred in paragraph 3 of the grounds of detention which are buttressed by the relevant shipping bills, invoices etc. Mr. Ghosh next contended that though it has been mentioned in paragraph 11 of the grounds that Customs Officers went to Falta SEZ Godown and found amongst others some blank letter heads, road challans, registers, rubber stamp and a few card board cartons of leather wallets, those materials do not find place in the inventory at pages 385 & 386, from which it may be inferred that there were certain materials which were taken into consideration by the detaining authority but not communicated to the detenu. This contention too cannot be sustained inasmuch as in the first place, the detaining authority relied upon the inventory list (SI. No. 52 of the documents relied upon) as it is. Secondly, detenu is not entitled to be furnished with the copies of documents to which only a casual or passing reference was made in the course of narration of facts and which were not relied upon by the detaining authority while making the Order of Detention and that by reason of non-supply of the copies of such documents, the detenu could not be said to have been prevented from making effective representation. The decision of Mst. L. M. S. Ummu Saleema v. B. B. Gujral, , may be relied upon in this connection. And, thirdly those materials have been rejected in the list of documents tendered by the employee of the detenu viz. Pradip Chakraborty (SI. No. 56) at pages 393-394, and as such, it could not be expected to be reflected in the inventory list.
18. As regards contention of Mr. Ghosh that though in paragraph 16 of the grounds of detention, it has been mentioned that on preliminary examination of the records available on the spot, the detaining authority drew certain inference that two other companies viz. M/s. Peoples Tannery & M/s. Sree Exports (P) Ltd. are also functioning from the same premises and are availing export benefits like DEPB and Drawback etc., no such material was communicated to the detenu and so when on the basis of uncommunicated materials the detaining authority passed the Order of Detention, it is liable to be set aside. In paragraph 3 of the grounds of detention, it has been mentioned that the detenu is the Director of M/s. Sree Exports (P) Ltd. of 17A, Sura Third Lane, Kolkata-10 & senior partner of M/s. Peoples Tannery of 72, Matheswar Tolla Raod, Kolkata - 46 which has been echoed in paragraph 12 of the grounds. In paragraph 16 of the grounds, those two companies are stated to be controlled by the detenu and the members of his family. In paragraph 67(i) of the grounds, the detenu has been described as the prime mover and controller in the aforesaid three firms concerned with exporting leather goods. In the above backdrop, relevant materials, on the basis of which the detaining authority has drawn the inference that the aforesaid two companies are availing of export benefits like DEPB and Drawback should have been furnished to the detenu. So, the said material having not been supplied to the detenu and the detaining authority having taken the view on the basis of uncommunicated material in the grounds of Detention Order thereby preventing the detenu from making* an effective representation, it rendered the detention illegal. In this connection, the decision of Md. Alam v. State of West Bengal, may be relied upon where the detenu was described by the detaining authority as "veteran copper wire criminal" without communicating the material or "reliable information" in that regard, and such non-communication of material was held to be violative of Article 22(5) of the Constitution. Similar view was taken in Bhutnath case where a blistering bio-data of the detenu was forwarded by the District Magistrate to the Govt. and Board that (a) he is poor and illiterate, (b) has associates in notorious wagon-breakers and antisocial elements, (c) has developed spirit of lawlessness and aptitude for antisocial activities and (d) many reported and unreported cases of recent antisocial and criminal activities exist, and the Court held that the particulars prejudicial to the detenu played over the judgment of the authorities but the petitioner never knew of such notorious information and could not answer back, that communication of facts is the cornerstone of the right of representation and orders based on uncommunicated materials are unfair and illegal.
19. In the premises, when the aforesaid two grounds have been found to be fatal for the continued detention of the detenu and the writ petition succeeds accordingly, it does not appear to be necessary to go in for discussion of other grounds.
20. In the result, the application be allowed. The impugned Order of Detention passed against the detenu Manas Kumar Moitra be set aside. The said detenu is directed to be released forthwith, if not required in connection with any other case. The respondents are directed to set the detenu free at once.
Nure Alam Chowdhury, J.:
21. I agree.