Union of India Vs.
Ranu Bhandari  INSC 1576 (16 September 2008)
SUPREME COURT OF
INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1468 OF 2008 @
S.L.P.(CRIMINAL) NO. 6803 OF 2006 Union of India ...Appellant Ranu Bhandari
15th December, 2005, the Joint Secretary (COFEPOSA), Government of India,
Ministry of Finance, Department of Revenue, New Delhi, issued an order of
detention against Shri Sanjay Bhandari, the husband of the respondent/writ
petitioner, under Section 3(1) of the Conservation of Foreign 2 Exchange and
Prevention of Smuggling Activities Act, 1974, (hereinafter referred to as
"COFEPOSA"), to prevent the detenu from smuggling goods in future.
facts which are said to have led to the passing of the detention order are
briefly summarized hereunder.
Sanjay Bhandari obtained Export Promotion Capital Goods Scheme (E.P.C.G.)
licences as Service Provider in respect of four firms/companies which were
floated by him from time to time and imported vehicles at concessional rates
for personal use in flagrant misuse of the said licences. The said vehicles
were never used for tourist purposes as declared for obtaining the E.P.C.G.
licences and the Foreign Inward Remittance Certificate shown by him did not
relate to his earnings from the use of the imported cars. In addition to the
above, all the vehicles which were 3 imported under the aforesaid licences
were registered as private vehicles.
Sanjay Bhandari was found to have violated various provisions/conditions of the
Exim Policy, Foreign Trade Policy and Customs exemptions notifications and
during the investigations conducted by the Directorate of Revenue Intelligence,
51 out of 61 vehicles were seized, though most of them were released
provisionally on payment of differential duty and execution of Bonds and Bank
Guarantees. Shri Bhandari's said activities were held to amount to smuggling as
defined in Section 2(39) of the Customs Act as adopted in Section 2(e) of the
COFEPOSA Act, 1974.
nature and gravity of Shri Bhandari's activities over a period of time and his
high potentiality and propensity to indulge in such prejudicial activities in
future, the order of detention was issued against him on 15th December, 2005,
under Section 3(1) of the COFEPOSA Act, 1974.
by the order of detention, the detenu's wife, Ranu Bhandari, filed a Habeas
Corpus petition before the Delhi High Court challenging the legality of the
same mainly on the ground of non-supply of various documents, which according
to the respondent, prevented the detenu from making an effective representation
to the detention order.
Being satisfied that
certain relevant documents which had been considered by the Detaining Authority
while issuing the detention order had not been supplied to the detenu to make
an effective representative against his continued detention, the High Court
allowed his Writ Petition and quashed the detention order dated 15th December,
2005, which has been challenged in the appeal.
Union of India is in appeal against the judgment and order of the High Court.
Additional Solicitor General, Mr. A. Sharan, questioned the decision of the
High Court on the ground that all the documents which had 5 been considered by
the Detaining Authority and found to be relevant in issuing the detention
order, had been indicated in the detention order and supplied to the detenu.
Furthermore, it was pointed out by the learned Solicitor General that the
documents which were not supplied originated from the detenu himself.
learned Additional Solicitor General submitted that the question as to what
documents were required to be supplied to a detenu along with the detention
order has fallen for consideration of this Court in innumerable cases.
The consistent view
which has been taken by this Court is that documents which had been relied upon
by the Detaining Authority to come to a decision that it was necessary to issue
the order of detention, would have to be supplied to the detenu to enable him
to understand the grounds on which the detention order had been passed and to
make an effective representation in respect thereof, in keeping with Article
22(5) of the Constitution.
learned Additional Solicitor General also submitted that apart from the
aforesaid view of general application, two other views had also been taken by
this Court. One view was that all documents referred to or mentioned in the
detention order would have to be supplied to the detenu and if even one of them
was not supplied, the detention order would stand vitiated. The other view was
that except for the documents which were relevant and had been relied upon by
the Detaining Authority in passing the detention order, other documents
mentioned in the detention order or referred to therein were not required to be
supplied to the detenu. The learned Additional Solicitor General reiterated
that in the instant case all the documents on which the Detaining Authority had
relied while issuing the detention order, had been duly supplied to the detenu,
who, however, insisted that he should have also been provided with certain
documents which were within his knowledge. The said documents had been itemised
as his representation dated 12.12.2005, the show-cause 7 notice dated
22.7.2004 which had been received by him, his writ petition No.5431 of 2002 and
the I.E.C. Code pertaining to the three proprietorship firms belonging to him,
which had not been placed before the Detaining Authority. It was submitted that
not only did the detenu have knowledge of all the said documents, but they were
available with the detenu.
support of his aforesaid contention the learned Additional Solicitor General
firstly relied on the decision of this Court in Radhakrishnan Prabhakaran vs.
State of Tamil Nadu [(2000) 9 SCC 1790], wherein while considering an identical
question this Court, inter alia, observed as follows:
"We make it
clear that there is no legal requirement that a copy of every document
mentioned in the order shall invariably be supplied to the detenu.
What is more
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."
8 It was also
observed that since the bail application of the detenu had not engaged the
attention of the Detaining Authority while passing the detention order, the
non-supply or non- placement thereof before the Detaining Authority would not
vitiate the detention order.
learned Additional Solicitor General also referred to and relied upon the
decision of this Court in J. Abdul Hakeem vs. State of T.N. and others [2005) 7
SCC 70], wherein after considering some of the earlier decisions of this Court,
the learned Judges quoted, with approval, the decision of this Court in
Radhakrishnan Prabhakaran's case (supra) and the observations made therein.
on the aforesaid view, this Court had held that although the copy of the
passport of the detenu had not been supplied to him, though reference had been
made to the same in 9 the detention order, what had weighed with the Detaining
Authority in issuing the detention order was a statement made by the detenu in
his own hand-writing admitting that he had made several visits outside the
country. The reference to the passport entries had been made only by way of
reference and was not the basis of the detention order. On the facts of the
said case, being of the view that non-supply of the passport of the detenu had
not prejudicially affected his right to make an effective representation
against the order of detention, it was held that the non-supply of the copy of
the passport would not vitiate the detention order.
reference was made to the decision of this Court in Sunila Jain vs Union of
India [(2006) 3 SCC 321], wherein also several decisions of this Court were
considered, including that of Radhakrishnan Prabhakaran 10 (supra), and it was
held that non-placement of a copy of the bail application of the detenu before
the Detaining Authority was not sufficient to vitiate the order of detention,
since the same was within the knowledge of the Detaining Authority and had been
taken into consideration while passing the detention order.
learned Additional Solicitor General urged that the instant case would fall
within that class of cases wherein this Court has held that non-supply of all
the documents mentioned in the detention order, which had no relevance in
regard to the Detaining Authority's satisfaction in passing the order of
detention, would not vitiate the same. It was submitted that the High Court had
erroneously proceeded on the basis of the other class of cases wherein this
Court had held that even if one of the grounds of detention was found to be
vague or defective or any of the documents on which reliance had been placed by
the Detaining 11 Authority had not been supplied to the detenu, it would
vitiate the detention order, although the same did not apply in the facts of this
case. It was submitted that the impugned order of the High Court was contrary
to the views expressed by this Court in similar matters and the same was,
therefore, required to be set aside.
judgment and order of the High Court was, however, strongly defended on behalf
of the respondent-wife of the detenu. It was submitted by Mr. Vikram Chaudhary,
learned counsel appearing for the respondent, that this Court had consistently
held that since an order of detention adversely affected the personal liberty
and individual freedom of a citizen and struck at the very roots of the
fundamental rights guaranteed under Articles 19, 20, 21 and even 22 of the
Constitution, the same had to be carefully scrutinized when challenged by the
detenu on any of the grounds available to him or her.
was submitted that in the instant case certain vital documents which could have
had a bearing on the decision of the Detaining Authority while passing the
detention order, had not been placed before the Detaining Authority as the same
were in the detenu's favour and upon considering the same the Detaining
Authority may not have issued the said detention order. Mr. Chaudhary submitted
that the representation which had been made by the detenu on 12.12.2005, the
agreement dated 9.11.07 executed between the detenu and his agents for using
the resort for which the vehicles had been imported, the relevant portions of
the Settlement Commission's order by which the detenu had been absolved of all
criminal proceedings, and the writ petition filed by the detenu, would have
convincingly placed the case of the detenu before the Detaining Authority had
they been before the said Authority for consideration. It was further submitted
that 13 non-supply of the said documents, irrespective of whether they had
originated from the detenu himself, had prevented the detenu from making an
effective representation against the detention order, since without having the
documents in front of him, it was not possible for the detenu to remember the
contents of the said documents in their entirety, which contained in detail the
stand of the detenu. By depriving the detenu of the said documents he was
deprived of the right guaranteed to him under Article 22(5) of the Constitution
which was mandatory and any breach thereof had been held by this Court to be
sufficient to vitiate the detention order.
Chaudhary derived support for his aforesaid contention from the decision of
this Court in M. Ahamedkutty v. Union of India [(1990) 2 SCC 1], wherein it was
reiterated that the right under Article 22(5) is a right to make an effective
14 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, therefore, had the right to be
supplied with the grounds of detention along with the documents which were
referred to or relied upon and if there was failure or even delay in furnishing
those documents, it would amount to denial of making an effective
representation. It was also observed that it was immaterial whether the detenu
already knew about their contents or not, but the non-supply of the copies
thereof was fatal as was held in Mehrunissa v. State of Maharashtra [(1981) 2
It was emphasised
that in order to appreciate this point it would have to be kept in mind that
the detenu is in jail and has no access even to his own documents.
counsel submitted that in the case of Ashadevi wife of Gopal Ghermal v
K.Shivraj 15 [(1979) 1 SCC 222], this Court had indicated that if material or
vital facts, which could influence the mind of the Detaining Authority one way
or the other on the question whether or not to issue the detention order, are
not placed before the Detaining Authority or are not considered by the said
authority, it would vitiate its subjective satisfaction rendering the detention
counsel submitted that the said view had thereafter been consistently followed,
with minor variations, since the personal liberty of a citizen was
prejudicially affected by the passing of a detention order which enabled the
State authorities to detain a citizen without a trial. Learned counsel
submitted that, in fact, the Detaining Authorities have been held to the rigors
of the detaining enactments while passing detention orders as would also be
clear from the decision of this 16 Court in Sk. Nizamuddin v State of West
Bengal [(1975) 3 SCC 395], where the delay of two and a half months in
detaining the petitioner therein pursuant to the orders of detention, was held
to cast considerable doubts on the genuineness of the subjective satisfaction
of the detaining magistrate and prompted this Court to quash the detention
counsel submitted that the views expressed in Ashadevi's case (supra) and in
various other similar cases were subsequently referred to and relied upon in
State of U.P. v Kamal Kishore Saini [(1988) 1 SCC 287], while quashing the
detention order impugned in the said case.
counsel for the detenu lastly contended that when the Settlement Commission set
up under the Customs Act, 1962, had absolved the detenu from all criminal 17
prosecution after a settlement had been reached, the Detaining Authority had
issued the detention order only with the intention of by-passing the order of
the said Commission and rendering the same ineffectual. It was submitted that
in such circumstances no interference was called for with the order of the High
Court which had rightly quashed the order of detention issued against the
detenu on 12.12.2005.
in mind the fact that of all human rights the right to personal liberty and
individual freedom is probably the most cherished, we can now proceed to
examine the contention advanced on behalf of the parties in the facts and
circumstances of this case.
But before we proceed
to do so, it would be apposite to reproduce herein below a verse from a song
which was introduced in the cinematographic version of Joy Adamson's memorable
classic `Born Free', which in a few 18 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
Born free and beauty
surrounds you, The world still astounds you, Each time you look at a star.
Stay free, with no
walls to hide you, You're as free as the roving tide, So there's no need to
Born free and life is
worth living, It's only worth living, if you're born free."
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 19 empowered
to issue prerogative writs have, therefore, 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
arbitrarily taken away from him even temporarily without following the
procedure prescribed by law.
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 the general public. It has also
been the consistent view that when a detention order is passed all the
material 20 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.
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 @ 21 Ayub's case
[(1989) 1 SCC 374] and Ahamedkutty's case, all referred to hereinbefore, have
relied on the principle that although 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.
brings us to the next question as to whether even 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 22 make an effective
representation against his detention.
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 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 23 which had been relied upon 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
issuing the order of detention at all.
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 24 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.
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.
the said circumstances, we do not see any reason to interfere with the judgment
and 25 order of the High Court and the appeal is accordingly dismissed.
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