TION Criminal Appeal No 627 of 1988
From the Judgment and Order dated 1061988 of the Bombay High Court in Criminal Writ Petition No 257 of 1988
RKGarg and PNGupta for the Appellant
Kuldip Singh Additional Solicitor General Arun Madan and PParmeshwaran for the Respondents
PG NO 1033 The Judgment of the Court was delivered by RAY J
Special leave granted
Arguments heard
This appeal on special leave is against the judgment dated 10th June 1988 made by High Court of Allahabad dismissing Criminal Writ Petition No 257 of 1988 instituted by the detenu
The facts giving rise to this appeal are that on August 25 1987 the house of the appellant was searched by the officers of the Enforcement Directorate under Section 37 of Foreign Exchange Regulation Act 1973 and they seized currency notes of Re 1 lakh and four bank drafts amounting to Rs30000 bank pass book and loose sheets Nos
1 to 44 as per item No 2 in panchnama dated August 25 1987
The statement of detenu was recorded and he was arrested on the same day
On August 26 1987 the detenu made an application in the Court of Addl
Chief Metropolitan Magistrate 8th Court at Esplanade retracting his statement
The Magistrate made an order thereon that  Taken on record
An application for bail was moved on September 15 1987 and an order had been made on that day releasing him on bail of Re 1 lakh with a condition imposed that he would attend Enforcement Department Office every day between 11 am to 2 pUll
until further order
The detenu filed an application on September 22 1987 for variation of the said conditional order and the condition was varied by the Magistrate by directing that the detenu may attend the Enforcement Department as and which required
The Enforcement Directorate sent a letter directing the detenu to collect his passport deposit during the time of questioning
The passport however
remained with the Enforcement Department
Thereafter
on February 9 1988 the impugned order of detention of the detenu in Central Prison Bombay was made by the responded No 1 the Joint Secretary Government of India
The order of detention was served on the detenu on February 19 1988 and the grounds of detention were furnished to him
A Criminal Writ Petition No 257 of 1980 was filed before High Court Bombay for quashing the said detention order on the grounds inter alia that certain vital documents such as the application dated September 21 1987 for variation of the condition ot bail as well as the order passed by the Chief Metropolitan Magistrate varying the condition the application dated August 26 1987 retracting the statement by the detenu filed before the Magistrate and non consideration of the same as well as the non supply of the copies of Bank pass books and loose papers seized from the residence of detenu and mentioned in panchnama dated PG NO 1034 August 25 1987 which were placed before the detaining authority etc
vitiated the subjective satisfaction of the detaining authority on consequently the order of detention is illegal and bad
A Rule Nisi was issued
A return was filed by the respondent No 1 wherein the detaining authority denied the allegations and stated that all vital and material documents which had been considered in forming his subjective satisfaction and mentioned in the grounds have been supplied to him and as such the impugned order of detention is not illegal and bad
The criminal writ petition was therefore dismissed
Aggrieved by the judgment of the High Court the instant appeal on special leave has been filed
It was firstly contended on behalf of the appellant that the application for bail and the order dated September 15 1987 by the Metropolitan Magistrate granting conditional bail of Re 1 lakh with one surety of like amount though placed before the detaining authority the application for variation of the condition and the order made thereon by the Magistrate on September 21 1987 was not produced before the detaining authority
This is a vital document and non consideration of the same by the detaining authority results in the order being illegal
The decision in Ashadevi wife of Gopal Ghermal Mehta detenu vs K Shiveraj Addl
Chief Secretary to the Government of Gujarat  Anr
  was cited at the bar
In this case it has been observed by this Court thai documents which are vital and necessary for formation of subjective satisfactionwhich is the pre requisite for making an order of detention having not been placed before the detaining authority before making the detention order
the order of detention will get vitiated
The detention was to prevent the detenu from indulging in Hawala business ie making various payments to various persons in this country on receiving instructions from Rafiq from Dubai
The application for variation if condition of bail and the order passed by the Metropolitan Magistrate varying the condition of bail is in our opinion not a vital and material documents in as much as the granting of bail by the Magistrate enabled the detention come out and carry on his business activities as before
Condition imposed by the Magistrate directing the detenu to appear before the office of the Enforcement Department every day between 11 am to 2 pm has been varied to the extent that the accused to attend Enforcement Department as and when required
The condition imposed by the Magistrate has no relation to the activities carried on by the detenu and PG NO 1035 as such the High Court after considering all the circumstances held that the order varying the condition of bail was not a relevant document and failure to produce the document before the detaining authority before arriving at his subjective satisfaction had not vitiated the order
We agree with the same
The judgment delivered by the High Court Bombay in Criminal Writ Petition No 1304 of 1987 entitled Arvindbhai Purshottambhai Patel vs R C Iyer and Ors on February 25
1988 was referred to us
In this case the detenu was arrested for smuggling prohibited articles and the detenu was prosecuted for smuggling
He was granted bail by Magistrate on certain condition
Subsequently that order was varied
The initial order granting bail was placed before the detaining authority but the subsequent order of variation was not placed
It was held by the Division Bench of the High Court that the order of modification might have influenced the detaining authority in forming his subjective satisfaction and as such the non placement of the same would vitiate the order
That was a case of smuggling of prohibited articles and the condition in the bail was that he would not leave the shores of the country and so he could not have indulged in smuggling activities pending decision of the case
This condition was relaxed by the subsequent order
In that context it was observed by the Court that the order of variation is a material document which might affect the formation of subjective satisfaction before passing the order of detention and the failure to place that document vitiated the detention order
This observation was made in the facts of that case
This case has no relevance in the facts of this case as we have held that in the present case the order of Variation is not a relevant and vital document
It has been submitted that the detenu made an application on August 261987 in the Court of Addl
Chief Metropolitan Magistrate
8th Court
Esplanade retracting his statement whereon an order was made that taken on record
This application was not placed before the detaining authority and this has vitiated the detention order as this vital document was not considered before arriving at the subjective satisfaction by the detaining authority
It may be convenient to mention that in the counter affidavit to the writ petition the respondent No 1 has stated in para 5 that the application dated August 26 1987 and the order passed thereon was not placed before him as the Sponsoring Authority did not know about the said application dated August 26 1987 and the order thereon
The Enforcement Directorate was not aware of the said application and the order thereon
In any case the respondent No 1 has already stated that the retraction letter of detenu dated September PG NO 1036 201987 and the reply of the Directorate of Enforcement to the said letter of the detenu dated August 261987 was placed before the detaining authority
This submission therefore has no merit as the detaining authority knew about the retraction statement and the order made thereon before making the order of detention
It has been contended that the Enforcement Department in course of search of the house of detenu on August 25 1987 attached bank drafts and cheques bank pass books of State Bank of India Kandivali Branch New India Co operative Bank and Bank of Baroda Dahisar loose sheets bunched together and marked C  containing pages 1 to 44 and seized under panchnama but did not place before the detaining authority and if placed copies of those documents were not given to the detenu
It has been submitted that the failure to supply these documents infringed his fundamental right to make an effective representation and so the impugned order is required to be quashed
In reply to this submission the detaining authority filed a return stating that all documents mentioned in panchnama were placed before him
But only relevant and vital documents were taken into consideration for reaching subjective satisfaction
These documents have been referred to in the grounds of detention and copies of all the said documents have been furnished to the detenu
It has been strenuously contended on behalf of the appellant that Bank pass books and some pages out of 1 to 44 of the loose sheets bunched together and referred to in the Panchnama were not given to him and so he could not make an effective representation
This has infringed his right
In support of his sub mission the decision of this Court in Ashok Kumar vs Union of India and Ors   to which one of us is a party has been cited at the bar
There is no dispute that all the documents which were considered by the detaining authority in reaching his subjective satisfaction and referred to in the grounds of detention have been furnished to the detenu
It is not necessary to furnish copies of all the documents including the bank pass books which are not material and relevant for reaching the subjective satisfaction of the detaining authority merely because they were mentioned in the panchnama
Moreover no application had been made before the detaining authority for giving the detenu the copies of the bank pass books necessary for making an effective representation against the order of detention
In Ashok Kumar s case supra wherein this Court held that the order of detention had been vitiated due to non supply of bank pass books of the detenu and his wife seized in course of search of some houses wherefrom foreign currency as well PG NO 1037 as primary gold with foreign makings were recovered as it was held that these documents were vital and material documents
The detenu in that case made an application for furnishing him the bank pass books in order to enable him to make an effective representation against the order of detention stating that the houses from which the alleged foreign currency as well as primary gold with foreign markings had been recovered did not belong to or owned by the detenu
In that background this Court held that non supply of the bank pass books infringed the detenu s right to make an effective representation
In the instant case as we have said hereinbefore that the bank pass books are not vital and material documents in reaching subjective satisfaction of the detaining authority and as such the failure to furnish the bank pass books to the detenu has not infringed any right of the appellant and the order of detention cannot be questioned as illegal or vitiated on that score
No other points have been urged before us
For the reasons aforesaid we dismiss the appeal
There will be no order as to costs
RSS Appeal dismissed 


Summary:
In November 1976 the respondent issued a notice to the appellant under section 11 of the Jammu  Kashmir Houses  Shops Rent Control Act 1966 calling upon it to pay the arrears of rent
The notice also terminated the tenancy and called upon the appellant to vacate the demised premises
The notice sent by registered post was received back by the respondent with the endorsement left without address returned to sender
Thereupon the respondent caused a copy of the notice to be fixed to one of the doors of the premises in question
No payment of rent was however made by the appellant subsequently
The respondent therefore filed a suit in June 1977 seeking ejectment of the appellant on the ground of default in the payment of rent
The Trial Court ordered eviction
and the appellant s appeals before the District Judge and the High Court against the order of eviction failed
Before this Court the appellant contends that 1 the safeguards in sections 11 and 12 of the Act are intended for the benefit and protection of the tenant and therefore where the Act provides for the service of the notice by post
this requirement has to be strictly complied with 2 such postal service can neither be presumed nor considered to be good service where The latter is returned to the sender due to non availability of the addressee 3 in the absence of any enabling provision service by some other mode such as affixture cannot be treated as sufficient compliance with the statute and 4 where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden
Dismissing the appeal it was HELD 1 The proviso to clause i of section 111 and the proviso to section 123 are intended for the protection PG NO 983 PG NO 984 of the tenant
A Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable
988H 989Al 2 The proviso insists that before any amount of rent can be said to be in arrears a notice has to be served through post
All that a landlord can do to comply with this provision is to post a prepaid registered letter acknowledgment due or otherwise containing the tenant s correct address
Once he does this and the letter is delivered to the post office he has no control over it
It is then presumed to have been delivered to the addressee under section 27 of the General Clauses Act
989A B 3 To interpret the provision as requiring that the letter must have been actually delivered to the addressee would be virtually rendering it a dead letter
989F 4 If a registered letter addressed to a person at his residential address does not get served in the normal course and is returned it can only be attributed to the addressee s own conduct
If he is compelled to be away for some time all that he has to do is to leave necessary instructions with the postal authorities
989H 990A 5 The more reasonable effective equitable and practical interpretation would be to read the words served as sent by post
correctly and properly addressed to the tenant and the word receipt as the tender of the letter by the postal peon at the address mentioned in the letter
No other interpretation will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on or is received by the tenant
990B C 6 The statute prescribes only one method of service for the notice and none other
To require service by some other method to be effected over and above the postal service would be to travel outside the statute
99OF 7 Where the statute does not specify any additional or alternative mode of service there can be no warrant for importing into the statute a method of service on the lines of the provisions of CPC
This Court would therefore not like to hold that a substituted   service
such as the one effected by the landlord in the present case is a necessary or permissible requirement of the statute
990G 8 The provision in regard to the notice contemplated by the statute is unsatisfactory and it is hoped that the PG NO 985 legislature would soon set it right
On the provision as it stands a landlord must be held to have complied with the statutory requirement by sending a notice correctly addressed to the tenant by registered post
991H 992A Hare Krishna Das vs Hahnemann Publishing Co Ltd 1965 66  Surajmull Ghanashamdas vs Samardarshan Sur ILR  Taylor vs Taylor 11875 1 Ch D 426