State of Tamil Nadu
& ANR Vs. Abdullah Kadher Batcha & ANR  INSC 1939 (12 November
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 231 OF 2001 State
of Tamil Nadu & Anr. ...Appellants Abdullah Kadher Batcha & Anr.
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment rendered by a Division Bench of the Madras
High Court quashing the order of detention passed under the provisions of
Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as the `Act') in
respect of one Abdullah Kadher Batcha (hereinafter referred to as the `detenu')
who was directed to be detained.
The order of
detention was passed on 11.8.1999. The detenu made a representation on
4.9.1999. It is the stand of the detenu that he had sought for some documents
including the judgment passed by the High Court in Writ Petition No.13514 of
1999 which was dismissed on 10.8.1999. The Writ Petition was filed by the
detenu on the apprehension that he may be detained under the Act. In the
representation the detenu made a reference to the judgment dated 10.8.1999 and
also to the writ petition. It was pointed out in paragraph 7(x) that in order
to make the effective and meaningful representation, the detenu requires the
copy of the order passed by the High Court. A request was made to supply the
copy at an early date. It was stated in the representation that the detenu did
not know English and, therefore, representation which was made in English
language was prepared under his instruction and was read over and explained to
him in Tamil. State Government rejected the request by communication dated
21.9.1999 and it was indicated that the documents were not relied upon for the
purpose of detention. Copy of the order of the writ petition was however
supplied. High Court observed that in view of non supply of the documents a
protection available, under Article 22(5) of the Constitution of India, 1950
(in short the `Constitution'), was violated.
High Court further held that in the absence of the required documents the
detention was rendered illegal and accordingly the habeas corpus petition was
support of the appeal it has been stated that the documents in question which
were requested by the detenu to be supplied had nothing to do with the order of
detention. It was pointed out that there is a difference between the narration
of facts and the ground of detention. Undisputedly, the copy of the order in
the writ petition which was sought was in fact supplied though at a later point
of time. It is not understood as to how the order passed in writ petition which
was dismissed can be a document about which the detenu had no knowledge. The
High Court erroneously came to the conclusion that the relied upon documents
were not supplied. Actually, the factual scenario is just to the contrary.
rightly contended by learned counsel for the State the documents were read over
and an endorsement to that effect has been made by the detenu.
Radhakrishnan Prabhakaran v. State of T.N. and Ors. (2000 (9) SCC 170, it was
observed as follows:
"8. We may make
it clear that there is no legal require- ment that a copy of every document
mentioned in the or- der shall invariably be supplied to the detenu. What is
important is that 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 shall be supplied to him. It is admit- ted
by the learned counsel for the petitioner that the order granting bail has been
supplied to him. Application for bail has been submitted by the detenu himself
when the order of detention was passed which was subsequent to the order
granting bail. We cannot comprehend as to how a prior order rejecting bail
would be of any relevance in the matter when it was later succeeded by the
order granting bail. But learned counsel emphasised that the counter filed by
the Department was a relevant docu- ment, a copy of which has not been supplied
view in Radhakrishan Prabhakaran's case (supra) was reiterated in J. Abdul
Hakeem v. State of T.N. and Ors. (2005 (7) SCC 70) and Sunila Jain v. Union of
India and Anr. (2006 (3) SCC 321).
Court has a duty to see whether the non supply of any document is in any way
prejudicial to the case of the detenu. The High Court has not examined as to
how the non supply of the documents called for had any effect on the detenu
and/or whether non supply was prejudicial to the detenu. Merely because copies
of some documents have been supplied they cannot by any stretch of imagination
be called as relied upon documents.
examining whether non supply of a document would prejudice a detenu the Court
has to examine whether the detenu would be deprived of making an effective
representation in the absence of a document.
Primarily, the copies
which form the ground for detention are to be supplied and non supply thereof
would prejudice to the detenu. But documents which are merely referred to for
the purpose of narration of facts in that sense cannot be termed to be
documents without the supply of which the detenu is prejudiced.
High Court has lost sight of the relevant factors and, therefore, the impugned
order of the High Court is clearly unsustainable and is therefore set aside.
State of Tamil Nadu & Anr. v. Alagar (2006(7) SCC 540) it was noted as
question is whether it would be appropri- ate to direct the respondent to
surrender for serving re- maining period of detention in view of passage of
As was noticed in
Sunil Fulchand Shah v. Union of In- dia [2000(3) SCC 409] and State of T.N. v.
Kethiyan Peruma [2004(8) SCC 780] it is for the appropriate State to consider
whether the impact of the acts, which led to the order of detention still
survives and whether it would be desirable to send back the detenu for serving
remain- der period of detention. Necessary order in this regard shall be passed
within two months by the appellant State.
Passage of time in
all cases cannot be a ground not to send the detenu to serve remainder of the
period of deten- tion. It all depends on the facts of the act and the continu-
ance or otherwise of the effect of the objectionable acts.
The State shall
consider whether there still exists a proxi- mate temporal nexus between the
period of detention in- dicated in the order by which the detenu was required
to be detained and the date when the detenu is required to be detained pursuant
to the present order."
the nature of the order of detention which is essentially preventive in
character, it would be appropriate for the State Government and the detaining
authority to consider whether there is any need to take the detenu back to
detention for serving the remainder of the period of detention which was
indicated in the order of detention. The exercise shall be undertaken within
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
.....................................J. (P. SATHASIVAM)