Mohammed Din @ Manno Vs Union of India and Others

P.K. Bahri, J.

(1) This petition has been brought under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure for quashing the detention order dated March 7, 1988, passed by respondent No. 2 u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA Act") and declaration dated April 5, 1988, made u/s 9(1) of Cofeposa Act by respondent No. 3. The impugned orders have been made with a view to prevent the detenu from engaging in transporting smuggled goods and abetting the smuggling of goods in the sensitive border area of Punjab.

(2) The petitioner is stated to be Pakistani national and has been engaged in smuggling for the last about 25 years in association with some of the local persons. The detention orders were stated to have been passed against the petitioner and other co-detents including one Vinod Kumar.

(3) The learned counsel for the petitioner has, at the outset, urged that in spite of demand being made the authorities failed to supply copies of the search authorisations for conducting searches at house No. 9362, Gali No. 8, Multani Dhanda, Paharganj, house No. 211, Second Floor, Chuna Mandi, Paharganj and the residential premises of co-detent Raghubir Prasad Sharma situated at Hanuman Gali, Hathras, District Aligarh. It is pleaded that panchnamas regarding the searches carried out at the said premises were relied upon by the detaining authority while passing the detention order and copies of the said panchnamas were supplied to the petitioner-detenu pari passu the grounds of detention and these panchnamas referred to the search authorisation warrants copies of which were not supplied pari passu the grounds of detention. He has urged that the petitioner made a representation to the detaining authority requesting for supply of copies of the search authorisation warrants Along with copies of some other documents but for reasons known best to the detaining authority the copies of the said documents were not supplied and thus the detenu has been prevented from making an effective and purposeful representation against the order of detention.

(4) It is, indeed, not disputed that the panchnamas do refer to the said documents and in spite of the request being made by the petitioner for supplying copies of the said documents the same were not supplied. The learned counsel for the petitioner has placed reliance on a decision given by a Division Bench of this Court in Criminal Writ Nos. 324 and 325 of 1986, M.M. Yusuf v. Union of India and Others decided on March 17, 1987(1), in which it has been held that the copies of the search warrants, which are referred to in the panchnamas, have to be supplied to the detenu on demand being made in order to enable the detenu to make an effective and purposeful representation and if such copies are not supplied on demand being made, the detention order shall stand vitiated. The learned counsel for the petitioner has also pointed out that a similar ground was taken in the writ petition filed on behalf of co-detent Vinod Kumar and the order of detention was quashed on this very ground as is evident from the judgment in Criminal Writ No. 290/88 passed on October 11, 1988, by Malik Sharief-ud-din, J. He has also placed reliance on a decision given in Criminal Writ Petition No. 244 of 1985, Shivdev Singh v. Delhi Admn. decided on December 6. 1985, by which a Division Bench of this Court(7) held that if on similar reasons detention order of a co-detent stands quashed then for parity of reasons on account of a precedent having been already set up the detention of the other detenu must be also quashed.

(5) The learned counsel for the respondents has, on the other hand, argued that the judgment in the case of Vinod Kumar (supra) did not take into consideration the ratio laid down by the Supreme Court in State of Punjab and Others Vs. Jagdev Singh Talwandi, and thus, the said judgment should be created as per incuriam and should not be treated as valid precedent. He has pointed out that in the'' case of Shivdev (supra) the stresses have been laid on a judgment being treated as stare decisis but he has pointed out that the principal of stare decisis applies only where a precedent of long standing has stood the test of time and the same is liable to be given effect to subsequently as stare decisis without examining the reasons given for the said decision. He has argued that a judgment given in respect of co-detent cannot be treated as a stare decisis. He has made reference to Waman Rao and Others Vs. Union of India (UOI) and Others, . However, the learned counsel for the respondent forgets that even if the judgment in the case of Vinod Kumar (supra) may not be treated as stare decisis still the same is a precedent for the purposes of examining the similar case of a co-detent and unless and until it is shown that the judgment of co-detent is a judgment per incuriam, i.e., a judgment given ignoring certain clear principles of law or rules. In the present case, I have gone through the judgment given in the case of Jagdev Singh Talwandi (supra) and find that it does not lay down any proposition of law which was applicable to the facts of the present case. The learned counsel for the respondents has tried to interpret this judgment in support of his contention that in case a gist of a particular document stands enumerated in the grounds of detention even if the said document is relied upon for passing the detention order, the copy of the same need not be furnished to the detenu pan passu the grounds of detention. This contention fails to notice the facts of the case appearing in the said judgment. No argument was raised in the said judgment that the order of detention stood vitiated for non-supply of any copy of any document. The facts, in brief, of the said case were that the detention order was passed on the basis of two speeches allegedly delivered by the detenu. As a supporting material regarding the grounds of detention pertaining to the said two speeches, a extract of the facts culled out from the Cid report was supplied Along with the grounds of detention. The argument raised was that inasmuch as the facts in the grounds of detention did not find support or corroboration from the facts given in the extract of the Cid report, thus there was no material in support of the grounds of detention placed before the detaining authority to enable the detaining authority to be subjectively satisfied for passing the detention order. In para 5 of the judgment it was noticed that the contention raised before the High Court was that the State Government had not supplied to the respondent the supporting material on which ground No. I of the grounds of detention was based and before the Supreme Court it was pleaded that the relevant facts stated in the first ground of detention were totally absent from the supporting material supplied to him and Therefore, no reasonable person could have possibly passed the detention order on the basis of that material. It was urged that the order of detention was bad either because the detaining authority did not apply its mind to the material before it or in the alternative because there was some other material on the basis of which the detention order was passed and that material was not supplied to the respondent .In para 8, the Supreme Court while referring to the facts mentioned that the Cid report was not supplied to the detenu Along with the grounds of detention and the grounds of detention mentioned every one of the details which need have been mentioned, and the extract of the Cid report was furnished to the detenu as forming the source of information leading to the conclusion that the detenu had made a speech which necessitated his detention in the interest of the public order. It was observed that the grounds and the material furnished to the detenu have to be read together as it the material in the form of the Cid report was a continuation of the grounds of detention.

(6) In para 10, the Supreme Court then proceeded to examine the contentions by observing that it will now examine independently the argument of the respondent that he could not make an effective representation against the order of detention because the material supplied to him, that is to say, the extract of the Cid report of the speeds alleged to have been made by him at the Shaheedi Conference, did not contain the material particulars which formed an important constituent of the grounds served upon him. Then, the Supreme Court referred to various previous cases laying down the important safeguards enshrined in Article 22(5) of the Constitution and reiterated the principles laid down that one of the safeguards is that the detenu as well as he is detained must be informed of the grounds on which the order of detention is based and that is the ground which led to the subjective satisfaction of the detaining authority and certainly the detenu has to be afforded the earliest opportunity of making a representation against the order of detention, i.e. he has to be furnished sufficient particulars to enable him to make an effective representation. Then coming to the facts of the said case, the Supreme Court held that sufficient particulars of the first ground of detention stood furnished to the detenu to enable him to make an effective representation to the detaining authority. It was held that the inadequacy from which the supplementary particulars furnished to the respondent Along with ground No. 1 suffered cannot affect that position because they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground. The contention of the detenu was rejected that because of the inadequacy of data in the particulars supplied to him, he failed to make an effective representation. It was also observed in para 18 of the judgment that mere fact that what was furnished to the detenu was an extract from Cid report and not the whole of it has not caused any prejudice to the detenu since the grounds and the particular were served upon him and mentioned every conceivable detail which it was necessary to mention in order to enable the respondent to make a proper representation against the order of detention. In para 23, it was held that indeed, the furnishing of the Cid report, of which a truncated extract was furnished to the respondent was a superfluous exercise in the light of the facts of the instant case. The Supreme Court also noticed in para 17 that in fact, whatever: has been contained in the Cid report has been detailed out in. the grounds of detention. So, the Supreme Court has not laid down any law that if a particular document has been relied upon for passing a detention order, a copy of such document need cot be furnished if the gist of the document stands remunerated in the grounds of detention. It appears that in the facts of the case present before the. Supreme Court, the grounds of detention did not mention any Cid report. It is only on extract of the Cid report which was furnished as a supporting material. No contention was raised before the Supreme Court that the detention order stood vitiated for non-supply of copy of the Cid report to the detenu pari passu the grounds of detention. The contention raised was that the supporting material furnished to the detenu did not support the facts mentioned in the grounds of detention. So, it is not possible to countenance the contention that if a particular document has been relied upon for passing the detention order, the copy of the said material document need not be furnished to the detenu if the gist of the said document stands enumerated in the grounds or detention.

(7) In view of the above discussion, I hold that the impugned orders are liable to be quashed on the ground that the copies of the search authorisation warrants, which have been referred to in the panchnamas, were not supplied to the detenu-petitioner in spite of request being made which disabled the detenu from making an effective and purposeful representation.

(8) I allow the writ petition, make the Rule absolute and quash the impugned orders and direct that the petitioner be set at liberty forthwith if not required to be detained in any other case.