THE STATE OF MANIPUR & ORS versus BUYAMAYUM ABDUL HANAN @ ANAND & ANR. on 19 October 2022

760

SUPREME COURT REPORTS

[2022] 15 S.C.R.

ATHE STATE OF MANIPUR & ORS.

v.

BUYAMAYUM ABDUL HANAN @ ANAND & ANR.

(Criminal Appeal No. 1819 of 2022)

BOCTOBER 19, 2022

[AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]

Constitution of India – Art. 22(5) – Right to makerepresentation – Preventive Detention – Non-supply of legible copiesof documents relied upon by detaining authority – Denial ofCeffective representation – Respondent no.1 was subjected topreventive detention under 1988 Act – High Court set aside theorder of detention passed on the premise that the appellants failedto supply the legible copies of documents relied upon while passingthe order of detention – On appeal, held: Right to makeDrepresentation is a fundamental right of the detenu u/Art. 22(5) –Supply of illegible copy of documents relied upon by the detainingauthority has deprived the respondent in making an effectiverepresentation and denial thereof will hold the order of detentionillegal – Further, though the respondent failed to question beforethe detaining authority that illegible or blurred copies were suppliedEto him, but the right to make representation being a fundamentalright, the detenu is always entitled to be supplied with the legiblecopies of the documents relied upon by the detaining authority –Information made in the grounds of detention enables him to makean effective representation – No error committed by High Court inFsetting aside the order of preventive detention – Prevention of IllicitTraffic in Narcotic Drugs and Psychotropic Substances Act, 1988.Constitution of India – Art. 22(5) – Rights conferred under –Discussed.

Constitution of India – Art. 22(5) – Held: Refusal to supplyGthe documents requested by the detenu or supply of illegible orblurred copies of the documents relied upon by the detainingauthority amounts to violation of Art. 22(5) – However, whether anopportunity has been afforded to make an effective representationalways depends on the facts and circumstances of each case.H

Dismissing the appeals, the Court

HELD: 1.1 Article 22(5) of the Constitution confers tworights on the detenu, firstly, the right to be informed of the groundson which the order of detention has been made and, secondly, tobe afforded an earliest opportunity to make a representationagainst the order of detention. Right to make a representationimplies that the detenu should have all the information that willenable him to make an effective representation. No doubt, thisright is again subject to the right or privilege given by clause (6).At the same time, refusal to supply the documents requested bythe detenu or supply of illegible or blurred copies of the documentsrelied upon by the detaining authority amounts to violation ofArticle 22(5) of the Constitution. Although it is true that whetheran opportunity has been afforded to make an effectiverepresentation always depends on the facts and circumstances ofeach case. [Paras 16, 17][767-F-H; 768-A]

1.2 The right to make representation is a fundamental rightof the detenu under Article 22(5) of the Constitution and supplyof the illegible copy of documents which has been relied upon bythe detaining authority indeed has deprived him in making aneffective representation and denial thereof will hold the order ofdetention illegal and not in accordance with the procedurecontemplated under law. It is the admitted case of the partiesthat respondent no.1 has failed to question before the detainingauthority that illegible or blurred copies were supplied to himwhich were relied upon while passing the order of detention, butthe right to make representation being a fundamental right underArticle 22(5) of the Constitution in order to make effectiverepresentation, the detenu is always entitled to be supplied withthe legible copies of the documents relied upon by the detainingauthority and such information made in the grounds of detentionenables him to make an effective representation. [Paras 21,22][770-F-H; 771-A-B]

1.3 It was specifically raised by the respondents in theirwrit petition and the reference has been made in para 9 of thepetition referred to and in the pleadings on record, there was nodenial in the counter filed by the appellants before the High Court A

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Athat the documents which were supplied and relied upon by thedetaining authority were legible and that has not deniedrespondent no.1 in making effective representation whilequestioning the order of detention and once this fact remainuncontroverted from the records as being placed before the HighCourt in writ petition filed under Article 226 of the ConstitutionBand the legal principles being settled, there is no substance inthe submissions that merely because respondent no.1 has failedto raise this question before the detaining authority which gointo root of the matter to take away the right vested in theappellant/detenu in assailing the order of detention while availingCthe remedy available to him under Article 226 of the Constitutionof India. The right of personal liberty and individual freedom whichis probably the most cherished is not, in any manner, arbitrarilyto be taken away from him even temporarily without followingthe procedure prescribed by law and once the detenu was able tosatisfy while assailing the order of detention before the High CourtDin exercise of jurisdiction Article 226 of the Constitution holdingthat the grounds of detention did not satisfy the rigors of proof asa foundational effect which has enabled him in making effectiverepresentation in assailing the order of detention in view of theprotection provided under Article 22(5) of the Constitution, theEsame renders the order of detention illegal and no error iscommitted by the High Court in setting aside the order ofpreventive detention under the impugned judgment.[Paras 23,24][771-C-H]

Bhupinder Singh v. Union of India & Others (1987) 2FSCC 234; Ramchandra A. Kamat v. Union of India andOthers (1980) 2 SCC 270 : [1980] 2 SCR 1072; Unionof India v. Ranu Bhandari (2008) 17 SCC 348 : [2008]13 SCR 582 – relied on.

Smt. Dharmista Bhagat v. State of Karnataka &GAnother (1989) 2 Supp SCC 155 : 1990 (1) JT 192;Manjit Singh Grewal @ Gogi v. Union of India & Ors.(1990) Supp. SCC 59; Mehrunissa v. State ofMaharashtra (1981) 2 SCC 709 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1819 of 2022.

From the Judgment and Order dated 28.10.2021 of the High Courtof Manipur at Imphal in W.P. (Crl.) No. 20 of 2021.

With

Criminal Appeal No. 1820 of 2022.

Pukhrambam Ramesh Kumar, Karun Sharma, Ms. AnupamNgangom, Wahengbam Immanuel Meitei, Advs. for the Appellants.

K. K. Natraj, ASG, Ms. Prerna Singh (AC), Shailesh Madiyal,Sanjay Nuli, Vinayak Sharma, Nakul Chengappa K. K., Mukesh KumarMaroria, Advs., for the Respondents.

The Judgment of the Court was delivered by RASTOGI, J.

1. Leave granted.

2. The instant appeals are directed against the decision of theHigh Court of Manipur dated 28[th] October, 2021 and 16[th] September,2021 setting aside the order of detention passed under Prevention ofIllicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988(hereinafter referred to as “the Act 1988”) on the premise that theappellants failed to supply the legible copies of documents which wererelied upon by the appellants while passing the order of detention underthe provisions of the Act 1988.

3. Respondent no. 1, in both the appeals, was released pursuantto the order impugned dated 28th October, 2021 passed by the HighCourt and the period of detention of one year also expired.

4. Notice was issued by this Court on 18[th] April, 2022, but no oneappeared on behalf of respondent no. 1 despite service of notice.

5. On the last date of hearing, i.e., 1[st] September 2022, this Courtrequested Ms. Prerna Singh, learned Advocate to appear as Amicus A

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ACuriae on behalf of respondent no.1 in both the appeals which shevoluntarily accepted and assisted the Court.

6. We have heard learned counsel for the appellants, Ms. PrernaSingh, Amicus Curiae on behalf of the respondent no. 1 in both theappeals as well as learned counsel for respondent no. 2 and with theirBassistance perused the material on record.

7. The challenge in the writ petition originally filed on behalf ofrespondent no.1 was the order of detention dated 17[th] May, 2021 andthe grounds of detention dated 22[nd] May, 2021 passed by the SpecialSecretary (Home), Government of Manipur, whereby respondent no.1Cwas subjected to preventive detention under the provisions of the Act1988.

8. The main thrust on which the writ petition was filed underArticle 226 of the Constitution assailing the order of detention was thatrespondent no.1 was not supplied with legible copies of the documentsDrelied upon by the detaining authority while passing the order of detentionand that has taken away the valuable right of respondent no.1 in makingan effective representation. The right to make a representation is afundamental right and non-supply of the legible copies of the documentsrelied upon by the authorities in passing the order of detention is in violationof Article 22(5) of the Constitution and placed reliance on the judgmentsEof this Court in Smt. Dharmista Bhagat v. State of Karnataka &Another[1], Manjit Singh Grewal @ Gogi v. Union of India & Ors.[2],Mehrunissa v. State of Maharashtra[3] and Bhupinder Singh v. Unionof India & Others[4].

9. The Division Bench of the High Court placed reliance on theFaforesaid judgments of this Court and set aside the order of detentiondated 17[th] May, 2021 passed by the Special Secretary (Home),Government of Manipur.

10. Respondent no.1 in his writ petition, para 9 and ground (e) inparticular, has stated that the documents which formed the basis of theGgrounds of detention at pages 31, 33, 35, 37, 38 are illegible and all blurredand not readable and as such respondent no.1 could not make an effective 1 1989 Supp (2) SCC 1552 1990 (Supp.) SCC 593 (1981) 2 SCC 709H4 (1987) 2 SCC 234

representation before the detaining authority and enclosed the groundsof detention dated 22[nd] May, 2021 along with the petition. Para 9 of thewrit petition and ground (e) are extracted hereinbelow:

“9. That, it is pertinent to mention herein that the documents whichform the basis of the grounds of detention at page no.31, 33, 35,37, 38 enclosed herewith are all blurred and not readable and assuch the detenu could not make an effective representation beforethe detaining authority, therefore, the impugned order andsubsequent orders are liable to be set aside. The blurred andunreadable original documents furnished to the detenu while hewas under detention have been filed along with the writ petition.A true copy of the documents which are not readable enclosed inthe grounds of detention dated 22.05.2021 is enclosed herewithand marked as Annexure-A/3.”

“e. For, that the documents which form the basis of the groundsof detention and enclosed herewith are not readable andcould not make an effective representation and as suchthe detention order is liable to be set aside.”

11. In the counter affidavit filed by the appellants before the HighCourt, the only justification tendered was that all the relevant documentsrelied upon by the detaining authority were supplied to respondent no.1and he did not make any such request in his representation of thedocuments relied upon by the detaining authority either being blurred orillegible at any stage during pendency of the proceedings until the finalorder of detention came to be passed by the detaining authority. Theextract of relevant para no.10 of counter affidavit is reproducedhereunder:

“10. That, with reference to Para Nos.9 and 15(e) of the WritPetition, the deponent begs to submit that all legibledocuments which form the basis of the grounds of detentionwere furnished to the detenu. Moreover, the detenu whilesubmitting his representation could have sought any relevantdocument from the Detaining Authority as done in othercases. However, the petitioner did not mention any suchrequest in his representation submitted to the detainingauthority. Original acknowledgement receipt annexed heretoand marked as A.”

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A12. Likewise, in Writ Petition (Crl.) No.15 of 2021 before theHigh Court, similar averments were made. Extracts of para 9 and ground(e) are reproduced hereunder:

“9. That, it is pertinent to mention herein that the documentswhich form the basis of the grounds of detention at pageBnos.79, 81, 83, 85, 87, 89, 93, 95 enclosed herewith are allblurred and not readable and even then the respondent No.1furnished incomplete documents while furnishing thedocuments of ground of detention to the petitioner (left behindmost of the pages of documents annexed in ground ofdetention). The petitioner has filed the documents in originalCbefore the Hon’ble Court, furnished by the respondent no.1and as such the detenu could not make an effectiverepresentation before the detaining authority, therefore, theimpugned order are liable to be set aside.

A true copy of the documents which are not readableDenclosed in the grounds of detention dated 22.05.2021 isenclosed herewith and marked as Annexure-A/3.”

“e. For, that the documents which form the basis of thegrounds of detention and enclosed herewith are notreadable and could not make an effective representationEand as such the detention order is liable to be set aside.”

13. In the counter affidavit filed by the appellants to the aforesaidwrit petition before the High Court, in para 9, the appellants replied asunder:

F “9. That with reference to Para No.9 of the criminal petition, itis submitted that while serving grounds of detention allrelevant documents were enclosed. Moreover, the detenuwhile submitting her representation done in other cases.However, the petitioner did not mention any such request inher representation submitted to the detaining authority.GAnnexure R/4 is the true copy of the Ground of detention.”

14. Learned counsel for the appellants has not disputed theproposition settled by this Court that supply of legible copies of thedocuments relied upon by the detaining authority is a sine qua non formaking an effective representation which is the fundamental right ofH

detenu guaranteed under Article 22(5) of the Constitution. The onlysubmission made by learned counsel for the appellants is that respondentno.1, at no stage, raised any objection that the pages of the documentsrelied upon by the detaining authority in the grounds of detention wereillegible or blurred which, in any manner, has denied him the opportunityof making representation and the objection was raised, for the first time,before the High Court and not at any stage before the detaining authority.In the given facts and circumstances, learned counsel submits that theinterference made by the High Court in setting aside the order of detentionis not legally sustainable and deserves to be interfered with by this Court.

15. Learned Amicus Curiae appearing on behalf of respondentno. 1 supported the order of the High Court and submitted that once it issettled that the supply of legible copies of documents relied upon by thedetaining authority is a sine qua non for making an effectiverepresentation to be a part of his fundamental right under Article 22(5)of the Constitution and once this specific allegation was made byrespondent no. 1 in the writ petition with facts and particulars and alsothe pages which, according to him, were illegible and blurred and thathas deprived respondent no.1 in making an effective representation, denialthereof was indeed in violation of Article 22(5) of the Constitution andonce the fundamental right has been infringed, even if it was not raisedbefore the detaining authority, that will not take away the fundamentalright conferred by law to respondent no.1 in assailing order of detentionas permissible to him under the law and once this fact remainsuncontroverted, no error has been committed by the High Court in settingaside the order of detention.

16. Article 22(5) of the Constitution confers two rights on thedetenu, firstly, the right to be informed of the grounds on which the orderof detention has been made and, secondly, to be afforded an earliestopportunity to make a representation against the order of detention.

17. It is well settled that right to make a representation impliesthat the detenu should have all the information that will enable him tomake an effective representation. No doubt, this right is again subject tothe right or privilege given by clause (6). At the same time, refusal tosupply the documents requested by the detenu or supply of illegible orblurred copies of the documents relied upon by the detaining authorityamounts to violation of Article 22(5) of the Constitution. Although it istrue that whether an opportunity has been afforded to make an effective AB

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Arepresentation always depends on the facts and circumstances of eachcase.

18. What will be the effect when the detune is deprived of effectiverepresentation or denial of supply of relied upon documents by thedetaining authority has been considered by this Court in RamchandraBA. Kamat v. Union of India and Others[5] as under:

“6. The right to make a representation is a fundamental right.The representation thus made should be considered expeditiouslyby the government. In order to make an effective representation,the detenu is entitled to obtain information relating to the groundsCof detention. When the grounds of detention are served on thedetenu, he is entitled to ask for copies of the statements anddocuments referred to in the grounds of detention to enable himto make an effective representation. When the detenu makes arequest for such documents, they should be supplied to himDexpeditiously. The detaining authority in preparing the groundswould have referred to the statements and documents relied on inthe grounds of detention and would be ordinarily available withhim — when copies of such documents are asked for by the detenuthe detaining authority should be in a position to supply them withreasonable expedition. What is reasonable expedition will dependEon the facts of each case.”

19. What will be the effect of non-supply of legible copies of thedocuments relied upon by the detaining authority has been consideredby this Court in Bhupinder Singh (supra) as under:F“1. On 3-10-1985 the officers of the Enforcement Directoratesearched House No. B.20, Gujranwala Town, Part II, Delhi andrecovered certain quantity of foreign exchange. It appears thatthe petitioner was not immediately available. He was called andinterrogated. He made a statement which was recorded by theofficers of the Enforcement Directorate. On 19-3-1986 an orderGfor detention of the petitioner was made by Shri M.L. Wadhawan,Additional Secretary to the Government of India, Ministry ofFinance, Department of Revenue, New Delhi. The petitioner wasarrested on 16-4-1986 and served with a copy of the order ofdetention. Grounds of detention were served on him four days H5 (1980) 2 SCC 270

THE STATE OF MANIPUR & ORS. v. BUYAMAYUM ABDULHANAN @ ANAND & ANR. [AJAY RASTOGI, J.]

later. On 12-5-1986 he was produced before the Advisory Board.He made a complaint before the Advisory Board that the copiesof documents which were supplied to him along with the groundsof detention were not legible and he also placed before the AdvisoryBoard a copy of a representation said to have been made by himfor supply of legible copies of documents. There is a controversywhether this representation was made on 8-5-1986 or 12-5-1986.From the original files produced before us we find that therepresentation was typed on 8-5-1986, but actually signed by thedetenu on 12-5-1986. But that would not make any difference forthe purposes of this case. On 19-5-1986 the Under-Secretary tothe Government of India conceded the demand of the detenu forlegible copies of documents and directed the Directorate ofEnforcement to supply a duplicate set of documents to thepetitioner. A copy of this letter was also sent to the detenu andwas acknowledged by him on 21-5-1986. There is a controversyas regards the date on which the legible copies of documentswere actually given to the detenu. According to the detenu theywere served on him on 1-7-1986, whereas according to thecounter-affidavit of Shri S.K. Chowdhry, Under-Secretary in theMinistry of Finance, the documents were supplied on 21-6-1986.It does not make any difference whether the documents weresupplied on 21-6-1986 or on 1-7-1986 since we find that evenbefore legible copies of documents were supplied to the detenu,the detention order was confirmed on 14-6-1986. The detenu wasthus clearly denied the opportunity of making a representationand there was therefore a clear contravention of the rightguaranteed by Article 22 of the Constitution. The detenu is entitledto be set at liberty. We are told that the detenu is now on parole.He need not surrender.”

and later in Manjit Singh Grewal (supra) as under:

“3. It appears that the appellant had asked for certain copies ofthe documents which admittedly were there with the respondent– Union of India. Copies of the documents were supplied, but thesame were not legible. This position is also apparent. It is notnecessary in the facts of this case to go into the question whetherthese documents were relevant or material.”

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A20. Learned counsel also relied upon the judgment of this Court inUnion of India v. Ranu Bhandari[6]wherein it was held in paras 27 and31 as under:

“27. It has also been the consistent view that when a detentionorder is passed all the material relied upon by the detaining authorityBin making such an order, must be supplied to the detenu to enablehim to make an effective representation against the detention orderin compliance with Article 22(5) of the Constitution, irrespectiveof whether he had knowledge of the same or not. These havebeen recognised by this Court as the minimum safeguards to ensurethat preventive detention laws, which are an evil necessity, do notCbecome instruments of oppression in the hands of the authoritiesconcerned or to avoid criminal proceedings which would entail aproper investigation.

28-30. xxx xxx xxx

D31. Of course, in Radhakrishnan Prabhakaran case [(2000) 9SCC 170] it was also made clear that there is no legal requirementthat a copy of every document mentioned in the order has to besupplied to the detenu. What is, therefore, imperative is that copiesof such documents which had been relied upon by the detainingauthority for reaching the satisfaction that in the interest of theEState and its citizens the preventive detention of the detenu isnecessary, have to be supplied to him. Furthermore, if in this case,the detenu’s representation and writ petition had been placedbefore the detaining authority, which according to the detenucontained his entire defence to the allegations made against him,Fthe same may have weighed with the detaining authority as to thenecessity of issuing the order of detention at all.”

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21. Thus, the legal position has been settled by this Court that theright to make representation is a fundamental right of the detenu underArticle 22(5) of the Constitution and supply of the illegible copy ofGdocuments which has been relied upon by the detaining authority indeedhas deprived him in making an effective representation and denial thereofwill hold the order of detention illegal and not in accordance with theprocedure contemplated under law.

22. It is the admitted case of the parties that respondent no.1 hasfailed to question before the detaining authority that illegible or blurredcopies were supplied to him which were relied upon while passing theorder of detention, but the right to make representation being afundamental right under Article 22(5) of the Constitution in order to makeeffective representation, the detenu is always entitled to be suppliedwith the legible copies of the documents relied upon by the detainingauthority and such information made in the grounds of detention enableshim to make an effective representation.

23. Proceeding on the principles which have now been settled bythis Court, it was specifically raised by the respondents in their writpetition and the reference has been made in para 9 of the petition referredto(supra) and in the pleadings on record, there was no denial in thecounter filed by the appellants before the High Court that the documentswhich were supplied and relied upon by the detaining authority werelegible and that has not denied respondent no.1 in making effectiverepresentation while questioning the order of detention and once thisfact remain uncontroverted from the records as being placed before theHigh Court in writ petition filed under Article 226 of the Constitution andthe legal principles being settled, we find no substance in the submissionsmade by learned counsel for the appellants that merely becauserespondent no.1 has failed to raise this question before the detainingauthority which go into root of the matter to take away the right vestedin the appellant/detenu in assailing the order of detention while availingthe remedy available to him under Article 226 of the Constitution ofIndia.

24. In other words, the right of personal liberty and individualfreedom which is probably the most cherished is not, in any manner,arbitrarily to be taken away from him even temporarily without followingthe procedure prescribed by law and once the detenu was able to satisfywhile assailing the order of detention before the High Court in exerciseof jurisdiction Article 226 of the Constitution holding that the grounds ofdetention did not satisfy the rigors of proof as a foundational effect whichhas enabled him in making effective representation in assailing the orderof detention in view of the protection provided under Article 22(5) of theConstitution, the same renders the order of detention illegal and we findno error being committed by the High Court in setting aside the order ofpreventive detention under the impugned judgment.

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772SUPREME COURT REPORTS

A25. Consequently, the appeals fail and are hereby dismissed.

26. Pending application(s), if any, stand disposed of.

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Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeals dismissed.

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