REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 231 OF 2001   

State of Tamil Nadu & Anr. …Appellants

Vs.

Abdullah Kadher Batcha & Anr. …Respondents

J U D G M E N T

Dr.  ARIJIT PASAYAT, J.

1. Challenge  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

1

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.

2. The High Court further held that in the absence of the required

2

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 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.  

4. As  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.  

5. In  Radhakrishnan Prabhakaran v.  State of T.N. and Ors. (2000

(9) SCC 170, it was observed as follows:

3

“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 to him.”  

6. The  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).

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 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.   

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.

4

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.   

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. In  State of Tamil Nadu & Anr. v.  Alagar (2006(7) SCC 540) it

was noted as follows:

“The residual 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 time. 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.”

5

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  indicated  in  the  order  of  detention.   The

exercise shall be undertaken within two months.

12. The appeal is allowed to the aforesaid extent.  

                           …………………….....................J.               (Dr. ARIJIT PASAYAT)              

   …… …………………….............J.     (P. SATHASIVAM)

                         ………….……….........................J.     (AFTAB ALAM) New Delhi,      November 12,  2008                                      

6