Supreme Court of India
STATE OF TAMIL NADU & ANR.versusABDULLAH KADHER BATCHA & ANR.
- Citation
- 2008 INSC 1291
- Decided
- 12 November 2008
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that the High Court erred; the court must examine prejudice from non‑supply of documents that form the ground of detention, and only such documents need to be supplied, leading to the setting aside of the High Court’s order.
Summary
The State of Tamil Nadu detained Abdullah Kadher Batcha under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 11 August 1999. The detenu filed a representation on 4 September 1999 requesting copies of documents that formed the basis of his detention, including a High Court order, but the State Government refused, stating those documents were not relied upon. The Madras High Court quashed the detention, holding that the non‑supply of documents violated Article 22(5) of the Constitution. On appeal, the Supreme Court held that the High Court failed to examine whether the non‑supply of documents that actually formed the ground of detention prejudiced the detenu, and that only such documents need to be supplied. Consequently, the High Court’s order was set aside and the appeal was partly allowed, leaving it to the State to decide within two months whether the detenu should be taken back to detention for the balance of the period.
Issues considered
- Whether the non‑supply of documents to a detenu under preventive detention violates Article 22(5) of the Constitution.
- What category of documents must be furnished to a detenu to enable an effective representation against detention.
- Whether the Madras High Court erred in quashing the detention order on the basis of alleged non‑supply of documents.
- Whether the detenu should be required to serve the remainder of the detention period.
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)(i)
- Constitution of Indias. Article 22(5)
Subjects
preventive detentionArticle 22(5)document supplyrepresentationforeign exchange actdetention orderSupreme Courthigh courtprejudice
Judgment
[2008] 15 S.C.R. 1099
....._
STATE OF TAMIL NADU & ANR. A
v.
ABDULLAH KADHER BATCHA & ANR.
(Criminal Appeal No. 231 of 2001)
NOVEMBER 12, 2008
B
---J
~ [DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
lit ALAM, JJ.]
~
Conservation of Foreign Exchange and Prevention of
c
Smuggling Activities Act, 1974 - s.3(1 )(i) - Order of detention
- Representation by detenu and request for supply of certain
documents - Rejected by State Government - Writ petition
' by detenu - Allowed by High Court - On appeal, Held: It is
the duty of Court to examine whether the detenu was deprived
.. ~
of making an effective representation in absence of D
documents - Primarily copies of documents which form
ground of detention are required to be supplied - High Court
did not examine the effect on detenu on account of non
supply of the documents.
E
An order of detention was passed on 11.8.1999 under
s.3(1 )(i) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. High Court
quashed the order of detention.
""" Detenu made a representation and also requested F
for supply of some documents and copy of order passed
___. by High Court. State Government rejected the request
' and indicated that documents were not relied upon for
the purpose of detention. Copy of order of High Court
I
•,
was however supplied. G
High Court allowed the writ petition holding that in
~
view of non supply of documents, a protection available
under Article 22(5) of the Constitution. of India was
1099 H
1100 SUPREME COURT REPORTS [2008] 15 S.C.R.
A violated.
..,...
In the instant appeal, it was contended for the •
appellants that the documents in question which were
requested by the detenu to be supplied had nothing to
do with the order of detention. ' '
B i-
Partly allowing the a·ppeal, the Court
HELD: 1.1. The Court has a duty to see whether the
non supply·of any document is in any way prejudicial to
c 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 w,hether non supply
was prejudicial to the detenu. Merely because copies of
some documents have been supplied they cannot by any
0 stretch of imagination be called as relied ·upon j.
documents. [Para 7] [1103-H; 1104·AJ
Radhakrishnan Prabhakaran v. State of T.N. and Ors.
(2000) 9 sec 170; J. Abdul Hakeem v. State of T.N. and ors.
(2005) 7 SCC 70 and Suni/a Jain v. Union of India and Anr. r
E (2006) 3 sec 321, relied on.
1.2. While examining whether non supply of a
document would prejudic.e a detenu ~he C~urt has· to
examine whether
A .
the detenu. would .be deprived'.,of )- )oc
F making an effective repre..sentation in the absence of a
document. PrimarUy, the copies which form the ground
for de.tention are to be supplied and non supply thereof
!"'
would cause prejudice to the detenu. But documents
which are merely referred to for the purpose of narration l
G of facts in that sense cannot be termed to be documents
without the supply of which the detenu is prejudiced. The
High Cou·rt has lost sight of the relevant factors and,
therefore, the impugned order of the High Court is clearly
unsustainable and is therefore set aside. [Paras 8 and 9]
. H [1104-8-0]
. ;
STATE
. . OF TAMIL NADU & ANR. v. ABDULLAH KADHER 1101
BATCHA & ANR. LTD.
,.. State of Tamil Nadu & Anr. v. A/agar (2006) 7 SCC 540, A
""""' relied on.
2. Considering the nature of the order of detention
which is essentially preventive in character, it would be
appropriate for the State Government and the detaining B
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. [Para 11] [1105-B-C]
Case Law Reference: c
(2000) s sec 110 relied on Para 5
(2005) 1 sec 10 relied on Para 6
~
' (2006) 3 sec 321 relied on Para 6 D
. --(
(2006) 1 sec 540 relied on Para 10
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 231 of 2001.
E
From the final Order dated 30.3.2000 of the High Court of
Judicature at Madras in Habeas Corpus Petition No. 1754 of
1999.
T.L.V. Iyer, Sr. Adv. V.G. Pragasam for the Appellants.
F
KK. Mani, C.K.R. Lenin Sekar, Mayur R. Shah, Rajni Singh
and B. Krishna Prasad for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is G
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 Conservati'on of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
(hereinafter referred to as the 'Act') in respect of one Abdullah H
1102 SUPREME COURT REPORTS [2008] 15 S.C.R.
~
A 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
B in Writ Petition No.13514 of 1999 which was.dismissed on
10.8.1999. The Writ Petition was filed by the detenu on the
-~t.
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
c 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 mad~'to supply
the copy at an early date. It was stated in the representation . i
that the detenu did not know English and, therefore,
~
representation which was made in English language was
D ~
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.
E 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 sho-rt the 'Constitution'), was
violated.
)-
F 2. The High Court further held that in the absence of the
required documents the detention was rendered illegal and
accordingly the habeas corpus petition was allowed.
3. In support of the appeal it has been stated that the
documents in question which were requested by the detenu to
G . be supplied had nothing to do with the order of detention. It was t
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
H the order passed in writ petition which was dismissed can be
STATE OF TAMIL NADU & ANR. v. ABDULLAH KADHER 1103
BATCHA & ANR. LTD. [DR. ARIJIT PASAYAT, J.]
~
a document about which the detenu had no knowledge. The A
High Court erroneously came to the conclusion that the relied
upon documents were not supplied. Actually, the factual
scenario is just to the contrary.
4. As rightly contended by learned counsel for the State
B
the documents were read over and an endorsement to that
effect has been made by the detenu.
I
5. In Radhakrishnan Prabhakaran v. State of T.N. and
Ors. (2000 (9) sec 170, it was observed as follows:
c
"8. We may 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 important is
that copies of only such of those documents as have been
relied on by the detaining authority for reaching the D
satisfaction that preventive detention of the detenu is
necessary shall be supplied to him. It is admitted 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
E
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 document, a copy of which has
F
not been supplied to him."
6. The view in Radhakrishan Prabhakaran's case (supra)
was reiterated in J. Abdul Hakeem v. State of T.N. and O{S.
(2005 (7) SCC 70) and Sunila Jain v. Union of India and Anr. G
(2oos (3) sec 321).
-'.
7. The 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
H
1104 SUPREME COURT REPORTS [2008] 15 S.C.R.
A the documents called for had any effect on the deter:u 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.
B
8. While 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, th~
copies which form the ground for detention are to be supplied
C 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 without1he supply of which the detenu is prejudiced.
D 9. The 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.
10. I~ State of Tamil Nadu & Anr. v. A/agar (2006(7) SCC
E 540) it was noted as follows:
· "The residual question is whether it would be appropriate
to direct the respondent to surrender for serving re111aining
period of detention in view of passage of time. As was
noticed in Sunil Fulchand Shah v. Union of India [2000(3)
F SCC 409] and State of TN. 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 remainder period of
G 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 detention. It all depends
on the facts of the act and the continuance or otherwise of
H the effect of the objectionable acts. The State shall
!
STATE OF TAMIL NADU & ANR v. ABDULLAH KADHER 1105
BATCHA & ANR. LTD. [DR. ARIJIT PASAYAT, J.]
consider whether there still exists a proximate temporal A
nexus between the period of detention indicated 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. n
B
11. Considering 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 C
indicated in the order of detention. The exercise shall be
undertaken within two months.
12. The appeal is allowed to the aforesaid extent.
D.G. Appeal partly allowed. o
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "preventive detention"Sign in to search